Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 01/29/2008

Subject: The Court held:by 11 votes to six, that there had been no violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights; and,unanimously that there had been a violation of Article 5 § 2 (right to be informed promptly of reasons for arrest). The applicant, Shayan Baram Saadi, is an Iraqi Kurd, born in 1976, who now lives and works as a doctor in London. The case concerned his detention for seven days in a special facility for asylum seekers. The applicant complained about his detention at Oakington and about the fact that he was given no reasons for it. He relied on Article 5 §§ 1 and 2 of the Convention. Article 5 § 1 The Court noted that, while the general rule set out in Article 5 § 1 was that everyone had the right to liberty, Article 5 § 1(f) provided an exception, permitting States to control the liberty of aliens in an immigration context. States were permitted to detain would-be immigrants who had applied for permission to enter, whether by way of asylum or not. The Grand Chamber considered that, until a State had “authorised” entry, it was “unauthorised” and the detention of a person who wished to enter the country concerned and who needed but did not yet have authorisation to do so, could be to “prevent his effecting an unauthorised entry”. It did not accept that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an “authorised” entry, with the result that detention could not be justified under the first part of Article 5 § 1 (f). Article 5 § 1 (f) did not permit detention only of a person shown to be trying to evade entry restrictions. Such an interpretation would be too narrow and was also inconsistent with Conclusion No. 44 of the Executive Committee of the United Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines and a recommendation on the subject from the Council of Europe’s Committee of Ministers, all of which envisaged the detention of asylum seekers in certain circumstances, for example while identity checks were taking place or when elements on which an asylum claim were based had to be determined. However, such detention had to be compatible with the overall purpose of Article 5, to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion. To avoid being branded as arbitrary, detention had to be carried out in good faith; it had to be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention had to be appropriate, bearing in mind that the measure was applicable not to those who had committed criminal offences but to aliens who, often fearing for their lives, had fled from their own country; and the length of the detention should not exceed that reasonably required for the purpose pursued. The Court observed that the national courts at three levels had found that the applicant’s detention had a basis in national law, and the applicant did not disagree. The Court recalled that the purpose of the Oakington detention regime was to ensure the speedy resolution of some 13,000 of the approximately 84,000 asylum applications made in the United Kingdom per year at that time. In order to achieve that objective it was necessary to schedule up to 150 interviews a day and even small delays might disrupt the entire programme. The applicant was selected for detention on the basis that his case was suited for fast-track processing. In those circumstances, the Court found that the national authorities acted in good faith in detaining the applicant. Indeed the policy behind the creation of the Oakington regime was generally to benefit asylum seekers, by dealing with their claims expeditiously. Moreover, since the purpose of the deprivation of liberty was to enable the authorities quickly and efficiently to determine the applicant’s claim to asylum, his detention was closely connected to the purpose of preventing unauthorised entry. The Court further noted that the Oakington Centre was specifically adapted to hold asylum seekers and that various facilities, for recreation, religious observance, medical care and, importantly, legal assistance, were provided. While there was, undoubtedly, an interference with the applicant’s liberty and comfort, he made no complaint regarding the conditions in which he was held. Finally, as regards the length of the detention, the Court recalled that the applicant was held for seven days at Oakington, and released the day after his claim to asylum had been refused at first instance. That period of detention could not be said to have exceeded that reasonably required for the purpose pursued. The Court concluded that, given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum-seekers, it was not incompatible with Article 5 § 1(f) to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Moreover, the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers. It followed that there had been no violation of Article 5 § 1. Article 5 § 2 The Grand Chamber noted that the first time the applicant was told of the real reason for his detention was through his representative on 5 January 2001, when the applicant had already been in detention for 76 hours. Assuming that the giving of oral reasons to a representative met the requirements of Article 5 § 2, the Grand Chamber agreed with the Chamber that a delay of 76 hours in providing reasons for detention was not compatible with the requirement that such reasons be given “promptly”, in violation of Article 5 § 2. Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and Hirvelä expressed a joint partly dissenting opinion which is annexed to the judgment.

Parties: Saadi c/ Regno Unito

Classification: Freedoms - Art. 6 Personal liberty - Personal security