AS TO THE ADMISSIBILITY OF
Application No. 28110/95
by Ahmet JAHROMI
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 July 1995 by
Ahmet JAHROMI against the United Kingdom and registered on
3 August 1995 under file No. 28110/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the letter submitted by the respondent Government on
14 October 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Iran born in 1967 and at the time
of his application was detained in Winson Green prison, Birmingham. He
is represented before the Commission by Dr. L. Malik, a solicitor
practising in Manchester. The facts as submitted by the parties may be
summarised as follows.
In 1984, the applicant fled to Kuwait from Iran to avoid being
conscripted to fight in the Iran-Iraq war. He was granted political
asylum in Kuwait.
In or about 1985, the applicant entered the United Kingdom as a
student and has remained there ever since. During his residence there,
the applicant has been an active opponent of the regime in Iran and has
been involved in religious activities, being a devout muslim who
regards it as part of his religious vocation to convert non-believers.
In or about 1993, the applicant claimed asylum in the United
Kingdom. According to the facts as found by the courts in subsequent
proceedings, the applicant was given temporary admission to the United
Kingdom on the basis that he had made an application for asylum which
was still pending.
On 9 March 1995, the applicant was detained, being informed that
the Secretary of State had decided to deport him on the basis that for
reasons of national security, namely, the likelihood of his involvement
in terrorism, his continued presence in the United Kingdom would not
be conducive to the public good. He was to be detained pending the
decision on his outstanding application for asylum and any
representations which he might wish to make.
On 7 April 1995, the applicant applied for habeas corpus
challenging the legality of his detention. He also applied for judicial
review of the Secretary of State's failure to give adequate reasons or
particulars of the allegations against him. He submitted, inter alia,
that the Secretary of State had misdirected himself in considering
whether his continued presence would not be conducive to the public
good rather than the words of the statute which refer to the
deportation having to be conducive to the public good (Section 3(5)b
of the Immigration Act 1971).
In an affidavit of 11 April 1995, the Secretary of State
indicated that the reason for the decision to deport was that he had
seen material which lead him to the view that the applicant was
involved in the planning of terrorist activity in the United Kingdom
and to give further reasons would be damaging to national security and
incompatible with the protection of intelligence sources.
On 12 April 1995, Mr Justice Laws dismissed the application for
judicial review and habeas corpus.
On 21 June 1995, the Court of Appeal dismissed the applicant's
appeal. It found that the difference in wording between the Secretary
of State's decision-letter and the provisions of the Act was a matter
of semantics and there was no reason to suppose that the Secretary of
State had misdirected himself. As regards the lack of reasons given,
it found that unless there was evidence that the Secretary of State was
not acting in good faith in asserting that the giving of further
reasons would be damaging to national security and incompatible with
the protection of intelligence sources, the courts must accept that
position and make no further enquiry.
On a date unspecified, the applicant's asylum application was
refused by the Secretary of State. He decided not to exercise his right
of appeal due to the national security grounds. He was removed from the
United Kingdom on 3 January 1996 and was granted asylum in Kuwait.
COMPLAINTS
The applicant complains that his detention was not in accordance
with law or a lawful arrest or detention within the meaning of
Article 5 para. 1 (f) of the Convention since the Secretary of State's
decision did not reflect the test of the legislation ie. that the
applicant's deportation must be conducive to the public good rather
than that his presence was not conducive to the public good.
The applicant submits that he was not given sufficient or
adequate reasons for his arrest as required by Article 5 para. 2 of the
Convention.
The applicant complains that he had no possibility of obtaining
a review of the lawfulness of his detention as required by Article 5
para. 4 of the Convention since the courts will not inquire into the
reasons where national security is invoked.
The applicant also invokes Article 5 para. 5 of the Convention
in relation to a lack of enforceable right to compensation.
The applicant submits that the arbitrary detention interfered
with his right to respect for his private life contrary to Article 8
of the Convention and, insofar as it was attributable to his religious
beliefs, contrary to Article 9 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 July 1995 and registered on
3 August 1995.
On 21 May 1997, the Commission decided to communicate the
application to the respondent Government.
The Government wrote a letter on 14 October 1997, stating that
they did not wish to submit any observations, after an extension of the
time-limit fixed for that purpose. The applicant did not make any
observations.
On 21 January 1998, the Commission granted the applicant legal
aid.
THE LAW
1. The applicant complains that his detention was not in accordance
with the provisions of Article 5 para. 1 (f) (Art. 5-1-f). He also
complains that he was not given the reasons for his detention contrary
to Article 5 para. 2 (Art. 5-2) of the Convention. The applicant
further complains that he did not have a review of his detention which
conformed with the requirements of Article 5 para. 4 (Art. 5-4) nor an
enforceable right to compensation as required by Article 5 para. 5
(Art. 5-5). The applicant further invokes Articles 8 and 9
(Art. 8, 9) of the Convention alleging that his arbitrary detention
discloses violations of his right to respect for private life and his
right to manifest his religious beliefs. The relevant provisions of
Article 5 (Art. 5) provide as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to
deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.
...
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Government state that they do not wish to submit observations
in relation to the admissibility of the application.
The applicant relies, inter alia, on the Court's judgment in
Chahal (Eur. Court HR, Chahal v. the United Kingdom judgment of
15 November 1996, Reports 1996-V, p. 1789 at p. 1865, paras. 124-132)
which raised similar issues under Article 5 para. 4 (Art. 5-4) and in
which the Court unanimously found a violation of that provision.
The Commission has taken cognizance of the submissions of the
parties concerning the complaints raised by the applicant. It considers
that the complaints raise serious issues of fact and law the
determination of which should depend on an examination of the merits.
The application cannot therefore be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy