AS TO THE ADMISSIBILITY OF
Application No. 28023/95
by Parmjett SINGH VIRK
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 7 July 1995 by
Parmjett SINGH VIRK against the United Kingdom and registered on
25 July 1995 under file No. 28023/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Indian national, born in 1961 in the Punjab,
India. The Commission has not been informed as to the present
whereabouts of the applicant and whether or not he has in fact been
deported. The applicant is represented before the Commission by
Malik Adams Solicitors. The facts as submitted by the applicant can
be summarised as follows.
The applicant entered the United Kingdom illegally in early 1994
and made an application for political asylum in the United Kingdom.
In about May 1994 he instructed Maliks solicitors, as they were then
known, to progress his application for asylum.
On 30 August 1994 the applicant was requested to attend an
interview for the purposes of his application for political asylum.
On 30 September 1994 the applicant attended an interview at the Asylum
Screening Unit of the Immigration Department during which a further
interview was arranged for some time in January 1995.
On 8 December 1994 the applicant was arrested at his place of
employment. He was interviewed and then served with a notice in the
following terms:
"I have considered all the information available to me and
I am satisfied that you are an illegal entrant as defined
in Section 33(1)of the Immigration Act 1971.
A. You are therefore a person who is liable to be
detained pending the completion of arrangements for dealing
with you under the Act* I propose to give directions for
your removal from the United Kingdom in due course and
details will be given to you separately.
B. I hereby authorise your detention in police
cells/Group 4.
* paragraph 16 of Schedule 2 to the Act"
On 15 December 1994 the applicant's application for habeas corpus
was consolidated with the habeas corpus applications of two other
asylum seekers (nos. 28021/95 and 28022/95 respectively). On
19 December 1994 the application was heard before the High Court and
on 16 January 1995 judgment was given in favour of the applicant, the
Judge ordering his release. The Secretary of State and the Immigration
Officer appealed that decision and the matter was heard before the
Court of Appeal on 20 January 1995. On 3 February 1995 the Court of
Appeal allowed the appeal and overturned the decision of the Court
below. On 4 July 1995 the House of Lords refused leave to appeal.
By letter of 3 September 1996 the applicant's representatives
were asked to supply information as to the whether a decision had been
taken by the authorities in respect of the applicant's application for
asylum and if so, the content and date of that decision. Further, they
were asked to state whether appeal or judicial review proceedings had
been taken and to enclose any relevant decisions and to say whether the
applicant had been deported or was still detained in the UK. They were
asked to give all relevant dates and to enclose any relevant order(s).
The applicant's representatives wrote to the Commission on
9 October 1996 without providing any of the information requested and
stating that the application did not relate to the merits of the asylum
but to the question of detention only.
COMPLAINTS
1. The applicant complains that his detention in the United Kingdom
pending the determination of his application for asylum is punishment
and constitutes inhuman and degrading treatment within the meaning of
Article 3 of the Convention.
2. The applicant further complains that he was deprived of his right
to liberty as guaranteed by Article 5 of the Convention, his detention
not falling within any of exceptions set out in Article 5
paragraph 1(a)-(f). As regards Article 5 para. 1(f), the applicant
submits that he was a refugee seeking political asylum and that his
application was still under consideration. As such, he submits that
no action in relation to deportation or extradition was pending against
him and his detention could not therefore fall within Article 5
para. 1(f).
3. The applicant contends that if his arrest and detention is found
to fall within the scope of Article 5 para. 1(c), which he denies, he
was deprived of his rights under Article 5 para. 3. He submits that
he was arrested and detained by reason of an administrative decision
and that no tribunal held jurisdiction to determine the matter on which
he had allegedly been arrested. He contends that the authorities did
not intend to bring him before a judge or judicial officer authorised
by law to exercise judicial power.
4. The applicant further complains that he was detained from
27 October 1994 to 19 December 1994 and that the lawfulness of his
detention was not therefore determined speedily within the meaning of
Article 5 para. 4 of the Convention.
5. The applicant further complains that he was deprived of his right
to compensation as guaranteed by Article 5 para. 5 of the Convention
in respect of the alleged violations of Article 5 paras. 1-4 referred
to above.
6. The applicant further complains under Article 6, submitting that
because he was not charged with any criminal offence, but detained as
a result of an administrative act, he was deprived of all the rights
guaranteed in Article 6. Further, he submits that by virtue of the
arbitrary nature of the decision he must have been presumed guilty,
contrary to Article 6.
THE LAW
1. The applicant complains that his detention pending the
determination of his application for asylum was contrary to Article 3
(Art. 3) of the Convention. That provision provides as follows.
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3). The assessment of that minimum
is relative and depends on all the circumstances of the case, such as
the duration of the treatment and its physical or mental effects (see
e.g. Eur. Court H.R., Ireland v. the United Kingdom judgment of
18 January 1978, Series A no. 25, p. 65, para. 162).
The Commission notes that it is unable from the information
supplied to ascertain how long the applicant was detained before his
application for asylum was determined. In the circumstances the basis
of the complaint cannot be considered to have been substantiated.
Further, the Commission notes that the applicant has not alleged or
shown that he suffered inhuman or degrading treatment in the course of
detention, but claims only that detention pending the outcome of his
application for asylum was in itself inhuman and degrading. The
Commission considers that without more, such treatment cannot be
regarded as reaching the threshold required to establish inhuman and
degrading treatment within the meaning of Article 3 (Art. 3) of the
Convention.
It follows that this part of the complaint must be dismissed as
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains that he was deprived of his right
to liberty as guaranteed by Article 5 (Art. 5) of the Convention.
Article 5 (Art. 5) provides, so far as relevant, 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:
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
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.
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.
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 Commission recalls that the exception provided by Article 5
para. 1(f) (Art. 5-1-f) extends to cover circumstances in which an
individual, originally detained with a view to deportation, challenged
the decision to deport or claims asylum and is kept in detention
pending the outcome of the challenge or claim (see Eur. Court HR,
Chahal v. United Kingdom judgment of 15 November 1996, para. 112
(Reports 1996)).
The Commission notes that the applicant was served with a
deportation notice on 8 December 1994, on which date he was detained.
The Commission therefore considers that, in principle, the applicant
has been lawfully detained under Article 5 para. 1(f) (Art. 5-1-f) of
the Convention as a "person against whom action is being taken with a
view to deportation".
The Commission recalls that detention pending deportation may be
rendered unlawful if the deportation proceedings are not conducted with
the requisite diligence (cf. Eur. Court HR, Kolompar v. Belgium
judgment of 24 September 1992, Series A no. 235, p. 55, para. 36,
Application No. 7317/75, D.R. 6, p. 141).
The Commission observes however that it has not been provided
with the relevant dates, and in particular the date on which the
applicant's application for asylum was determined. It therefore
considers that it has insufficient information to determine whether the
proceedings were conducted with the requisite diligence. In the
circumstances the Commission must conclude that the applicant's
complaints have not been substantiated.
It follows that this part of the complaint must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant further complains that he was deprived of his right
to be brought promptly before a judge or other officer as guarantee by
Article 5 para. 3 (Art. 5-3) of the Convention.
The Commission recalls that rights are only accorded under
Article 5 para. 3 (Art. 5-3) to those detained in accordance with
Article 5 para. 1(c) (Art. 5-1-c) of the Convention. The Commission
notes that the applicant was detained for the purpose of deportation
and not with a view to bringing him before a competent legal authority
on reasonable suspicion of his having committed an offence or to
prevent his committing an offence or fleeing after having done so. The
Commission does not therefore consider that the applicant's detention
fell within Article 5 para. 1(c) (Art. 5-1-c) and Article 5 para. 3
(Art. 5-3) is not therefore applicable in the circumstances of this
case.
This part of the complaint must therefore be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant further complains that he was detained from
27 October 1994 to 19 December 1994 and that the lawfulness of his
detention was not therefore determined speedily within the meaning of
Article 5 para. 4 (Art. 5-4) of the Convention.
The Commission recalls that the relevant application for habeas
corpus was issued on 12 December 1994 and heard by the Court
19 December 1994. It notes that the applicant was not in fact released
until 16 January 1995, not 19 December 1994 as submitted, when a writ
of habeas corpus was issued by the High Court.
The Commission observes that the basis for the applicant's habeas
corpus application was that it was unlawful to detain asylum seekers
pending the outcome of their asylum applications. The question raised
complex issues of domestic and international law, the outcome of which
would have affected the position of all asylum seekers held in
detention, indeed, had it been upheld, it would have led to the release
of all asylum seekers detained pending the outcome of their
applications. In the circumstances, the Commission does not consider
that it was unreasonable for the judge to take time to determine the
complex issues of law that had been raised. Indeed, the fact that his
decision was overturned by the Court of Appeal supports the contention
that the answer to the legal arguments raised was not clear cut. The
Commission therefore considers that the delay in determining the
lawfulness of the applicant's detention cannot, in the very particular
circumstances of this case, be considered unreasonable.
It follows that this part of the complaint must also therefore
be dismissed as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
5. Insofar as the applicant invokes Article 5 para. 5 (Art. 5-5) in
respect of his complaints under Article 5 paras. 1 to 4
(Art. 5-1, 5-2, 5-3, 5-4), the Commission recalls that the right to
compensation under this provision presupposes that a violation of one
of the other paragraphs of Article 5 (Art. 5) has been established
either by a domestic organ or by the Convention organs (see eg. No.
7950/77, Dec. 4.3.80, D.R. 19, p. 213). In the present case however,
the Commission has found above that the applicant's complaints disclose
no appearance of a violation of Article 5 paras. 1 to 4
(Art. 5-1, 5-2, 5-3, 5-4) of the Convention.
It follows that these complaints must also therefore be dismissed
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. The applicant complains that he was deprived of his right to a
fair trial under Article 6 (Art. 6), which, so far as relevant, provide
as follows.
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission recalls its previous case law which establishes
that Article 6 (Art. 6) is inapplicable to deportation proceedings
since a decision as to whether an alien should be allowed to stay in
a country is a discretionary act of a public authority and therefore
of an administrative nature. The exercise of the discretionary powers
of the immigration authorities or, as in this case, the Secretary of
State, does not involve the determination of civil rights or
obligations or of a criminal charge within the meaning of Article 6
(Art. 6) of the Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25 p.
105).
It follows that Article 6 (Art. 6) is not applicable in the
present case and this part of the application must be dismissed as
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy