Information Note on the Court’s case-law 196
May 2016
J.N. v. the United Kingdom - 37289/12
Judgment 19.5.2016 [Section I]
Article 5
Article 5-1
Lawful arrest or detention
Protracted detention pending deportation of alien who refused to take necessary steps to obtain travel documents required for his return: violation
Article 5-1-f
Expulsion
Protracted detention pending deportation of alien who refused to take necessary steps to obtain travel documents required for his return: violation
Facts – The applicant arrived in the United Kingdom in 2003 from Iran and made an application for asylum, which was refused. After serving a term of imprisonment for indecent assault, he was detained on 31 March 2005 pending deportation. The Iranian Embassy initially refused to issue a travel document allowing the applicant’s return but eventually agreed to do so provided he signed a disclaimer consenting to his return. In December 2007 the applicant was conditionally released from detention, but he returned to detention on 14 January 2008 after refusing to sign the disclaimer that would have allowed him to travel. Thereafter the United Kingdom authorities made various attempts to engage the applicant in a voluntary return, but he refused to cooperate. The applicant made three applications for bail all of which were refused. He was eventually released on bail in December 2009 after the Administrative Court ruled that his detention after 14 September 2009 was unlawful owing to the authorities’ failure to act with reasonable diligence and expedition.
In the Convention proceedings, the applicant complained under Article 5 § 1 of the Convention that the system of immigration detention in the United Kingdom fell short of the requirements of Article 5 § 1 (f) (in particular, on account of the absence of fixed time-limits and automatic judicial review) and that the length of his detention had exceeded that reasonably required for its purpose.
Law – Article 5 § 1: The Court rejected the applicant’s submission that its recent case-law should be interpreted so as to read into Article 5 § 1 (f) a requirement that detention pending deportation be subject to a fixed maximum time-limit and/or automatic judicial review. While it was clear that the existence or absence of time-limits was one of a number of factors the Court might take into consideration in its overall assessment of whether domestic law was “sufficiently accessible, precise and foreseeable”, in and of themselves they were neither necessary nor sufficient to ensure compliance with the requirements of Article 5 § 1 (f). Likewise, Article 5 § 1 (f) did not require automatic judicial review of immigration detention, although the Court could take the effectiveness of any existing remedy into consideration in its overall assessment of whether domestic law provided sufficient procedural safeguards against arbitrariness.
In the United Kingdom, a person in immigration detention could at any time bring an application for judicial review in order to challenge the “lawfulness” and Article 5 § 1 (f) compliance of his detention. In considering any such application, the domestic courts had to apply a series of principles of domestic law* that were almost identical to those applied by the European Court under Article 5 § 1 (f) of the Convention in determining whether or not detention had become “arbitrary”.
In principle, therefore, the system in the United Kingdom should not give rise to any increased risk of arbitrariness as it permitted the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. Accordingly, it could not be said that in, the absence of fixed time-limits and automatic review of immigration detention, the domestic law was not sufficiently accessible, precise and foreseeable in its application or that there existed inadequate procedural safeguards against arbitrariness.
Turning to the facts of the applicant’s case, the Court was prepared to accept that the applicant’s previous offending, the risk of his further offending and the fear that he would abscond were all factors which had to weigh in the balance in deciding whether or not his continued detention was “reasonably required” for the purpose of effecting his deportation. Nevertheless, in the light of the fact that, with the exception of a period of just under one month, the applicant had been in immigration detention since March 2005**, and having particular regard to the clear findings of the Administrative Court concerning the authorities’ “woeful lack of energy and impetus” from mid-2008 onwards, the Court considered that from that point onwards it could not be said that his deportation was being pursued with “due diligence”.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
* The principles laid down in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 70 required that detention be for the purpose of exercising the power to deport; the period of detention must be reasonable in all the circumstances; a detainee must be released if it becomes apparent that deportation cannot be effected within a reasonable period; and the authorities must act with due diligence and expedition to effect removal.
** The Court was only concerned with the period from 14 January 2008 to 14 September 2009, as the applicant’s complaint in respect of a previous period of detention from 31 March 2005 to 17 December 2007 was declared inadmissible for failure to exhaust domestic remedies.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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