Judgments - Secretary of State For The Home Department Ex Parte Saadi (Fc) and Others (Fc)

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    This principle still applies subject to any treaty obligation of a state or rule of the state's domestic law which may apply to the exercise of that control. The starting point is thus in my view that the United Kingdom has the right to control the entry and continued presence of aliens in its territory. Article 5(1)(f) seems to be based on that assumption. The question is therefore whether the provisions of para. (1)(f) so control the exercise of that right that detention for the reasons and in the manner provided for in relation to Oakington are in contravention of the Article so as to make the detention unlawful.

    32. In my view it is clear that detention to achieve a quick process of decision-making for asylum seekers is not of itself necessarily and in all cases unlawful. What is said however is that detention to achieve speedy process "for administrative convenience" is not within para. (1)(f). There must be some other factor which justifies the exercise of the power to detain such as the likelihood of the applicant absconding, committing a crime or acting in ways not conducive to the public good.

    33. Whether this is so depends on whether each applicant is being detained "to prevent his effecting an unauthorised entry into the country" or whether he is a person "against whom action is being taken with a view to deportation or extradition".

    34. The first of these, on which the Secretary of State principally but not exclusively relied before the judge and the Court of Appeal, depends on whether what the claimants did here was effecting or trying to effect an unauthorised entry. It is said in Dr Saadi's case that he flew in lawfully. He immediately applied for asylum. He complied with reporting conditions. What he was trying to effect was an authorised lawful entry. The other three came in, it is accepted unlawfully, concealed in a lorry, but they immediately sought asylum from the appropriate authorities. They too were seeking authorised i.e. lawful entry. It was not established or alleged that there was any risk of any of them absconding. Therefore none of them can be detained.

    35. It is, however, to be remembered that the power to detain is to "prevent" unauthorised entry. In my opinion until the State has "authorised" entry the entry is unauthorised. The State has power to detain without violating Article 5 until the application has been considered and the entry "authorised". If the claimants' argument is accepted an applicant for asylum where there is no suspicion that he will abscond or act contrary to the public good must always be granted a temporary admission or be admitted. There would, if this is right, be no power to arrest or detain even for a short period whilst arrangements were made for consideration of the applicant's request for asylum. The interveners accept that "a restriction" of liberty might be appropriate in such cases. However how to produce a clear-cut distinction in these cases between arrest and detention on the one hand and restriction of liberty for the purposes of examining and deciding on the other, is not obvious.

    36. It is not in my view necessary to show that the applicant was seeking to enter by evading immigration control. That is not the same test as "preventing his effecting an unauthorised entry", a wider power which Article 5(1)(f) covers. If an applicant came in and gave every indication that he would not abscond or misbehave but in the course of his interview made it clear that his claim for persecution was based on a pack of lies he would be seeking unauthorised entry. Detention for the purpose of inquiring whether he must or should be granted asylum is permitted by para. (1)(f) and there is no provision in that paragraph requiring it to be shown that detention is necessary for that purpose. This is to be contrasted with para. (1)(c) of Article 5 which excludes from the prohibition of detention a case "when it is reasonably considered necessary to prevent his committing an offence or fleeing".

    37. On the face of it, it is not a precondition of the power to detain that detention should be "necessary" to prevent an unauthorised entry—necessary in the sense that no other procedure would be sufficient to allow an investigation of the basis of the claim for asylum. In Chahal v United Kingdom (1996) 23 EHRR 413, a deportation case, the applicant sought an order that his detention was not adequately reviewable under domestic law as to its lawfulness for the purposes of Article 5(4) of the Convention. The European Court of Human Rights held that there is no test of necessity under Article 5(1)(f). In that case a Sikh separatist who had been detained in custody for deportation purposes, since the Secretary of State considered that he was a threat to national security, challenged his detention. He had been in the United Kingdom for many years so that the relevant provision was the second part of Article 5(1)(f) i.e. he was a person "against whom action is being taken with a view to deportation". In that case the court said as follows:

    "112. The Court recalls that it is not in dispute that Mr Chahal has been detained 'with a view to deportation' within the meaning of Article 5(1)(f). Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5(1)(f) provides a different level of protection from Article 5(1)(c).

    "Indeed, all that is required under this provision is that 'action is being taken with a view to deportation'. It is therefore immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law.

    "113. The Court recalls, however, that any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f). …

    "118. It also falls to the Court to examine whether Mr Chahal's detention was 'lawful' for the purposes of Article 5(1)(f), with particular reference to the safeguards provided by the national system.

    "Where the 'lawfulness' of detention is in issue, including the question whether 'a procedure prescribed by law' has been followed, the Convention refers essentially to the obligation to confirm to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness.

    "119. There is no doubt that Mr Chahal's detention was lawful under national law and was effected 'in accordance with a procedure prescribed by law'. However, in view of the extremely long period during which Mr Chahal has been detained, it is also necessary to consider whether there existed sufficient guarantees against arbitrariness".

    38. I do not accept the claimants' argument that these words can only apply to the second part of para. 5(1)(f) and have no relevance to the prevention of a person effecting an unauthorised entry. No valid reason has in my view been advanced to justify such a distinction. The argument seems to me to be the other way. If necessity for detention is to be shown, it is more appropriate to require it for someone who has been lawfully here and who is then arrested and detained with a view to deportation because of his conduct here than for someone who has recently landed and who has never been lawfully here under authorised entry. It is to be noticed in Chahal that the Commission had said that:

    "It has never been alleged that he would abscond or not answer his bail if released from detention. His substantial family ties in the United Kingdom indicate that he would have no interest in doing so". (23 EHRR 413, 447, para 117)

    The Court did not dissent from that.

    39. The decision in Chahal was followed in the recent case of Conka v Belgium (Application No. 51564/99) again a case where the applicants were arrested so that they could be deported, that is a second alternative case under Article 5(1)(f).

    40. In R (Sezek) v Secretary of State for the Home Department [2002] 1 WLR 348, again a case concerning deportation on the grounds that it was conducive to the public good, the Secretary of State considered that there was a risk of the applicant absconding but he argued that Article 5(1)(f) was not satisfied unless it was established that detention was the only available way of preventing him absconding. The Court of Appeal at para. 13 rejected that argument:

    "There is nothing in the Convention nor any authority to support Mr Bishop's assertion that Mr Sezek's detention is incompatible with Article 5(1)(f) if other ways of preventing him absconding are available."

    41. The fact that an applicant is subsequently granted leave to enter or consent to temporary admission does not undermine this conclusion. The claimants rely on Amuur v France (1996) 22 EHRR 533 though Sir Sidney Kentridge did not feel able to attach much weight to this judgment. He, like the Court of Appeal, did not find it particularly clear. The particular passage relied on is at pp 556-557 where it is said:

    "42…In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.

    43…Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States' legitimate concern to foil the increasingly frequent attempts to get round immigration restrictions must not deprive asylum seekers of the protection afforded by these Conventions. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty—inevitable with a view to organising the practical details of the alien's repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered—into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country. Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum seeker of the right to gain effective access to the procedure for determining refugee status".

    42. The passage relied on does not indicate that detention must be "necessary" for the purposes of Article 5(1)(f) let alone does it seek to draw a distinction between the first and the second alternatives. I agree with the comment in the Court of Appeal [2002] 1 WLR 356, 393, para 64 that the Court is expressly comparing "mere restriction on liberty" which does not infringe Article 5 with "deprivation of liberty" which does. The Court of Appeal added, at p 393, para 65:

    "It seems to us that the Court is considering as lawful detention pending the consideration of an application for leave to enter or the making of arrangements for deportation and not applying a test of whether the detention is necessary in order to carry out those processes."

    43. I would accordingly hold that subject to any question of proportionality the action taken here was "to prevent [a person] effecting an unauthorised entry into the country" within the meaning of Article 5 (1)(f). In the circumstances it is not necessary to decide whether the detention falls also in the second limb. Arguably detention to process rapidly an asylum claim can be seen as action with a view to removal if the claim is not allowed and is not limited to a case against a person in respect of whom a removal decision has been taken. I prefer to express no concluded view on this because of a) the terms of the first alternative option which seem more pertinent and b) my opinion that here the detention was justified under the first alternative.

    44. There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5 (1)(f), "detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control".

    45. In Chahal the Court of Human Rights said that the lawfulness of detention had to be seen against the substantive and procedural rules of national law "but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness". I do not see that either the methods of selection of these cases (are they suitable for speedy decision?) or the objective (speedy decision) or the way in which people are held for a short period (i.e. short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate. The evidence of Mr Martin gives strong support to the view that it was appropriate, in the light of the Secretary of State's experience, for the Secretary of State to adopt the Oakington policy and that other alternative methods would practically not be effective.

    46. The need for highly structured and tightly managed arrangements, which would be disrupted by late or non-attendance of the applicant for interview, is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions.

    47. It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting as I do that the arrangements made at Oakington provide reasonable conditions, both for individuals and families and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here.

    48. It is agreed that the forms served on the claimants here were inappropriate. It was, to say the least, unfortunate but without going as far as Collins J in his criticism of the Immigration Service, I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention.

    49. On the basis of what I have said it is not valid to draw a distinction between Dr Saadi and the other claimants because of the way in which they arrived here. I would accordingly dismiss the appeal in respect of all four claimants.

LORD HUTTON

My Lords,

    50. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. I agree with it and for the reasons which he gives I too would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    51. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Slynn of Hadley. I agree with it and with his reasons for dismissing this appeal.

 
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