Court finds system of immigration detention in the UK does not, in principle, breach Article 5 of the European Convention on Human Convention
In a judgment handed down today, the European Court of Human Rights has ruled that the lack of a time-limit for immigration detention in the UK is not a human rights breach.
EIN members can read the judgment in J.N. v. the United Kingdom (App no. 37289/12) here.
The applicant, Mr J.N., is an Iranian national who was sentenced to 12 months' imprisonment for indecent assault and served with a deportation order. On completion of his sentence, J.N. remained in immigration detention for a total of 55 months, notably from March 2005 to December 2007 and from January 2008 to December 2009.
Relying on Article 5 § 1 (f) of the European Convention on Human Convention (right to liberty and security), Mr J.N. complained about the excessive length of his detention as well as the system of immigration detention in the UK, alleging that the time-limits on the maximum period of immigration detention had been unclear and that there had been no automatic judicial review.
The Court found in its judgment that the system of immigration detention in the UK did not, in principle, breach Article 5, as it permits the detainee to challenge the lawfulness and Convention compliance of his or her ongoing detention at any time.
The Courts concluded in its judgment: "97. The Court observes that in the United Kingdom, a person in immigration detention may 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 must apply the Hardial Singh principles (see paragraph 33 above). These principles require 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. Failing compliance with the requisite conditions, the detention becomes unlawful under domestic law, with the attendant obligation on the authorities to release the individual. The test applied by the United Kingdom courts is therefore almost identical to that applied by this Court under Article 5 § 1(f) of the Convention in determining whether or not detention has become "arbitrary".
"98. The Court therefore agrees with the Government that in principle the system in the United Kingdom should not give rise to any increased risk of arbitrariness as it permits the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. In considering any such challenge, the domestic courts are required to consider the reasonableness of each individual period of detention based entirely on the particular circumstances of that case, applying a test similar to – indeed, modelled on – that required by Article 5 § 1(f) of the Convention in the context of "arbitrariness".
"99. In light of the foregoing, it cannot be said that in, the absence of fixed time-limits and automatic review of immigration detention, domestic law was not sufficiently accessible, precise and foreseeable in its application or that there existed inadequate procedural safeguards against arbitrariness.
"100. The applicant and the third party intervener have criticised the domestic system on account of both the obstacles to detainees bringing judicial review applications and what they describe as "increasingly long periods of immigration detention" being held to be "lawful" by the domestic courts. However, although it is open to this Court to consider whether the system in the United Kingdom in principle complied with the requirements of Article 5 § 1(f), in considering how it operated in practice it has to confine itself, as far as possible, to an examination of the concrete case before it (see A.H. and J.K., cited above, § 190). Therefore, in deciding whether there has been a violation of Article 5 § 1(f) in the present case, the Court cannot rely on the access to court or the length of detention of persons who have not lodged applications with it and whose individual circumstances are not known to it.
"101. In view of the above considerations, the Court finds that the system of immigration detention in the United Kingdom did not, in principle, fall short of the requirements of Article 5 § 1(f) of the Convention."
Bail for Immigration Detainees (BID), who intervened in the case, said in response on Twitter that it was disappointed with the ruling, adding that it believes time limits and oversight are fundamental safeguards against arbitrary detention.
On the specifics of the case of J.N., Deighton Pierce Glynn noted that the Court found that the Home Office had unlawfully detained the applicant from mid-2008 to 14 September 2009. J.N. was represented by the firm.
Deighton Pierce Glynn's Sue Willman said: "The ruling of the European Court of Human Rights this case sets down an important marker to the domestic courts who have been increasingly allowing longer periods of detention as lawful. Immigration detention is too readily used by the Home Office."