ECtHR – J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016

Facts:

J.N. arrived in the United Kingdom in 2003 from Iran and made an application for asylum, which was refused.

On 31 March 2005, J.N. was issued a deportation order, and he was detained for this purpose.

Nevertheless, the Iranian Embassy refused to take back the applicant.

In September 2007, J.N. commenced judicial review proceedings challenging his continued detention.

In December 2007, J.N. was conditionally released from detention due to an order of the  Administrative  Court. Among the conditions of his release there was the obligation to take  steps  necessary  to  obtain  travel documents.

J.N. was placed back into detention in January 2008 after he refused to sign a disclaimer consenting to his return. Such a disclaimer had been eventually required by the Iranian Embassy as a precondition to issue a travel document to J.N. so as to allow his return.

Thereafter (while J.N. was detained), the United Kingdom authorities made various further attempts to engage the applicant in a voluntary return, but he always refused to cooperate.

Between March and October 2009, J.N. made three applications for bail to the Asylum and Immigration Tribunal, which were all dismissed arguing that the applicant could end his own detention by signing the disclaimer.  

In December 2009, the High Court granted the applicant permission to apply for the judicial review of his detention, and the Home Office was ordered to release him on bail. The judicial review proceeding ended in May 2011, when the Administrative Court ruled that J.N.’s detention after 14 September 2009 had been unlawful due to the authorities’ failure to act with reasonable diligence and expedition, and awarded damages to the applicant. 

Decision & reasoning:

Admissibility issues

A) Under Art. 35.1 of the Convention the Court found the complaint of the applicant inadmissible with regards to the first period of detention (From March 2005 to December 2007).

The Court found that the applicant had not satisfied the requirement of the exhaustion of domestic remedies in respect of this period since, after his release in December 2007, he had abandoned his judicial review application against this period of detention. Furthermore, the successful result of the second judicial review application proved the effectiveness of the available remedies.  

B) The Court found inadmissible under Art. 34 of the Convention the complaint of the applicant insofar as it concerns his period of detention from  14 September  2009  to  his  release  in  December 2009.

The Court considered that the applicant could not claim to be a “victim” of a violation of the Convention in respect of this period since the domestic court had expressly acknowledged that his detention was unlawful and had afforded him redress.

The Merits

As to the period of detention from January 2008 to 14 September 2009, the Court found it admissible.

A) Firstly, the Court reiterated that the UK regime of immigration detention does not in principle fail to comply with the requirements of Art. 5.1 (See also Abdi  v.  the  United  Kingdom; Saadi v. the United Kingdom).

The Court recalled that any deprivation of liberty must fall within the exceptions set out in Art. 5 of the Convention, and must be lawful.

In the present case, the first requirement is clearly fulfilled since the possibility to detain a person for purpose of expulsion is explicitly set out by Art. 5.1(f) of the Convention.

As to the second requirement, the Court recalled that a measure of detention is to be considered lawful when it conforms to national law (Amuur  v.  France; Abdolkhani and Karimnia v. Turkey), and to the rules and principles expressed or implied in the Convention. Notably, in several occasions the Court have stressed that domestic law must avoid any risk of arbitrariness by being sufficiently accessible, precise and foreseeable in its application (inter alia Nasrulloyev  v.  Russia; Khudoyorov v. Russia). Factors relevant to the assessment of the so called “quality of law”  include, for instance, the existence of clear legal provisions  for  ordering  detention and for  extending  detention. In any case, the Court found that no aspect of UK law regulating migrant detention could be considered in contrast with the Convention.

In this respect, the Court reiterated that time-limits on migrants’ detention, which the UK framework does not set out, are neither necessary nor sufficient to ensure the required “quality of law” (Gallardo  Sanchez v Italy; Auad  v.  Bulgaria). In this connection, the Court highlighted that the creation of time-limits has not been recommended by the Council  of Europe ( See the Twenty  Guidelines  on  Forced  Returns  or  in the Parliamentary; and Assembly  Resolution  1707  on  the  detention  of  asylum seekers and irregular migrants in Europe). In addition, the Court deemed immaterial that the Return Directive, which is not binding on the UK, sets out a time-limit on migrants’ detention. 

As to the automatic judicial review of immigration detention, which is also not set out by UK law, the Court similarly observed that this is not required by the Convention. Indeed, Art. 5.4 of the Convention, as well as the aforementioned CoE guidelines and Assembly Resolution, only require the “entitlement” for detainees to take proceedings enabling them to periodically contest the lawfulness of their detention.

Furthermore, the Court highlighted that UK principles concerning migrants’ detention (the so called Hardial Singh principles set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704) are the same as those elaborated by the Court: 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.

B) Despite general compliance with the Convention of the UK law and practice of migrants’ detention, the Court found that the applicant’s detention from January 2008 to 14 September 2009 breached Art. 5.1(f) of the Convention.

On the one hand, the Court was satisfied that the applicant’s second period of detention had a solid basis in domestic law since it had followed a  discharge of the order of 19 December 2007 to release  him  on  bail,  and  an order  was  issued  for  his  detention. On the other hand, the Court was not convinced that authorities had pursued his deportation with “due diligence”. Indeed, after a certain time of waiting for the detainee’s cooperation, detention ceases to be genuinely imposed for the purpose of detention. Thus, the Court agreed with the reasoning of the domestic court in its decision of November 2011, but held that the detention of the applicant was unlawful not only from 14 September 2009 (as acknowledged by the domestic Court), but already from the beginning of the second period of detention in January 2008. 

Outcome:

The Court declared the  complaint  concerning  the  periods  of  detention  from  March 2005 to December 2007, and from 14 September 2009 to December 2009 inadmissible;

The Court held that there had been a violation of Article 5 § 1 of the Convention in  respect  of  the  period  of  detention  from  mid-2008  to  14  September 2009.

Observations/comments:

UK Human Rights Blog: Article 5 ECHR does not require time limits for detention pending deportation

Other sources: