(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants falling within defined criteria (usually by nationality) were normally detained at Oakington while their claims were determined in an accelerated process. The Grand Chamber examined the concept of arbitrary detention in the context of the first limb of article 5(1)(f) authorising a detention to prevent the person making an unauthorised entry to the country. The Chamber directed itself to the restrictions permitted by the various sub-paragraphs of article 5(1), saying that it is fundamental that no arbitrary detention can be compatible with article 5(1) and that the notion of ‘arbitrariness’ extends beyond lack of conformity with national law. The notion of arbitrariness in the context of this article varies to a certain extent depending on the type of detention involved. To avoid being branded as arbitrary, such detention must be carried out in good faith and its length should not exceed that reasonably required for the purpose pursued.
‘One general principle established in the case law is that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of article 5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.
The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance.
The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out in para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the court under article 5(1).’
Citations:
[2008] ECHR 79, [2008] ECHR 80, 13229/03, (2008) 47 EHRR 17, [2008] Imm AR 368, [2008] INLR 436
Links:
Statutes:
European Convention on Human Rights 5(1)(f)
Jurisdiction:
Human Rights
Citing:
See Also – Saadi v United Kingdom ECHR 11-Jul-2006
The claimant had been detained as an asylum seeker. He complained that reasons for his detention were not given to him or his lawyer for 76 hours.
Held: The delay was incompatible with the applicant’s rights. . .
See Also – Saadi v United Kingdom ECHR 16-May-2007
Grand Chamber – Press Release . .
Cited by:
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
See Also – Saadi v United Kingdom ECHR 3-Jun-2010
Execution of the judgment . .
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Cited – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 06 October 2022; Ref: scu.280504