PROCEDURE

The case originated in an application (no. 13229/03) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Shayan Baram Saadi (“the applicant”), on 18 April 2003.

The applicant was represented by Messrs Wilson and Co., solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office.

The applicant alleged that he had been detained in breach of Article 5 § 1 and Article 14 of the Convention, and that he had not been given adequate reasons for the detention, contrary to Article 5 § 2.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 27 September 2005 it was declared admissible by a Chamber of that Section composed of Josep Casadevall, Nicolas Bratza, Matti Pellonpää, Rait Maruste, Kristaq Traja, Ljiljana Mijović and Ján Šikuta, judges, and Françoise Elens-Passos, Deputy Section Registrar. On 11 July 2006 a Chamber composed of the same judges, together with Lawrence Early, Section Registrar, delivered a judgment in which it held, by four votes to three, that there had been no violation of Article 5 § 1 and, unanimously, that there had been a violation of Article 5 § 2. The Chamber further held, unanimously, that it was not necessary to consider Article 14 separately, that the finding of a violation of Article 5 § 2 was sufficient just satisfaction for non-pecuniary damage, and that the respondent State should pay the applicant 1,500 euros, plus any tax that might be chargeable, for costs and expenses.

On 11 December 2006, pursuant to a request by the applicant, a panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention.

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant and the Government each filed their observations on the merits. In addition, third-party comments were received jointly from the AIRE Centre, the European Council on Refugees and Exiles and Liberty, and from the United Nations High Commissioner for Refugees, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

A hearing took place in public in the Human Rights Building, Strasbourg, on 16 May 2007 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr J. Grainger, Agent, Mr D. Pannick QC, Mr M. Fordham QC, Counsel, Ms N. Samuel, Mr S. Barrett, Advisers. (b) for the applicant Mr R. Scannell, Mr D. Seddon, Counsel, Mr M. Hanley, Ms S. Ghelani, Advisers. The Court heard addresses by Mr Scannell and Mr Pannick, as well as their answers to questions put by Judges Costa and Spielmann.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, an Iraqi Kurd, was born in 1976 and now lives and works as a doctor in London.

A. The applicant’s temporary admission to the United Kingdom

In December 2000 the applicant fled the Kurdish Autonomous Region of Iraq when, in the course of his duties as a hospital doctor, he treated and facilitated the escape of three fellow members of the Iraqi Workers’ Communist Party who had been injured in an attack. He arrived at Heathrow Airport on 30 December 2000 and immediately claimed asylum.

The immigration officer contacted the Oakington Reception Centre (“Oakington”, see paragraphs 23-25 below) but there was no immediate room there, so the applicant was granted “temporary admission” (see paragraphs 20-21 below) to stay at a hotel of his choice and return to the airport the following morning. On 31 December 2000 he reported as required and was again granted temporary admission until the following day. When the applicant again reported as required, he was, for the third time, granted temporary admission until 10 a.m. the following day, 2 January 2001.

B. Detention at Oakington and the asylum proceedings

On this last occasion, when the applicant reported as required, he was detained and transferred to Oakington.

When being taken into detention, the applicant was handed a standard form, “Reasons for Detention and Bail Rights”, indicating that detention was used only where there was no reasonable alternative, and setting out a list of reasons, such as risk of absconding, with boxes to be ticked by the immigration officer where appropriate. The form did not include an option indicating the possibility of detention for fast-track processing at Oakington.

On 4 January 2001 the applicant met at Oakington with a lawyer from the Refugee Legal Centre, who contacted the Home Office to enquire why the applicant was being detained and to request his release. On 5 January 2001, when the applicant had been detained for seventy-six hours, the lawyer was informed over the telephone by an immigration officer that the applicant was being detained because he was an Iraqi who fulfilled the Oakington criteria. The lawyer then wrote to the Home Office requesting the applicant’s release on the grounds that it was unlawful. When refused, the applicant applied for judicial review of the decision to detain him, claiming it was contrary to domestic law and Article 5 §§ 1 and 2 of the Convention.

The applicant’s asylum claim was initially refused on 8 January. The following day he was released from Oakington and again granted temporary admission pending the determination of his appeal. On 14 January 2003 his appeal was allowed and he was granted asylum.

C. The judicial review proceedings

In the proceedings for judicial review of the decision to detain the applicant, Collins J on 7 September 2001 (R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWHC Admin 670) found that the Secretary of State had such a power to detain under the Immigration Act 1971 (see paragraph 19 below). However, relying on the Court’s judgment in Amuur v. France (25 June 1996, § 43, Reports of Judgments and Decisions 1996-III), and what he considered to be a “sensible reading” of Article 5 § 1 (f), he found that it was not permissible under the Convention to detain, solely for purposes of administrative efficiency, an asylum-seeker who had followed the proper procedures and presented no risk of absconding. Even if the detention did fall within Article 5 § 1 (f), it was disproportionate to detain asylum-seekers for the purpose of quickly processing their claims, since it had not been demonstrated that stringent conditions of residence, falling short of twenty-four hour detention, might not suffice. He also found (as did the Court of Appeal and House of Lords) that the applicant had not been given adequate reasons for his detention.

On 19 October 2001 the Court of Appeal unanimously overturned this judgment ([2001] EWCA Civ 1512). Lord Phillips of Worth Matravers, Master of the Rolls, who gave the lead judgment, first considered whether the policy of detaining asylum-seekers for fast-track processing at Oakington was irrational, such as to render it unlawful under domestic law. He observed that over recent years applications for asylum to the United Kingdom and other countries had been escalating. In the United Kingdom the average monthly number of applications from July to September 1999 was nearly 7,000: 60% higher than the previous year. Coping with huge numbers of asylum-seekers posed heavy administrative problems, and it was in the interests of all asylum-seekers to have their status determined as quickly as possible. He continued: “We share the doubts expressed by Collins J as to whether detention is really necessary to ensure effective and speedy processing of asylum applications. But in expressing these doubts we ... are indulging in assumption and speculation. It is not in doubt that, if asylum applications are to be processed within the space of seven days, the applicants are necessarily going to have to be subjected to severe restraints on their liberty. In one way or another they will be required to be present in a centre at all times when they may be needed for interviews, which it is impossible to schedule to a pre-determined timetable. Would applicants voluntarily submit to such a regime, if not detained? Many no doubt would, but it is impossible to condemn as irrational the policy of subjecting those asylum-seekers whose applications appear susceptible to rapid resolution to a short period of detention designed to ensure that the regime operates without dislocation. This is not a conclusion that we have reached easily. Asylum-seekers are detained at Oakington only if it seems likely that their applications can be resolved within a week. But they must also be persons who are not expected to attempt to abscond or otherwise misbehave. At first blush it seems extreme to detain those who are unlikely to run away simply to make it easier to process their claims. But the statistics that we have set out at the start of our judgment cannot be ignored. As [the Home Office minister] observed in debate in the House of Lords on 2 November 1999, faced with applications for asylum at the rate of nearly 7,000 per month, ‘no responsible government can simply shrug their shoulders and do nothing’ ... A short period of detention is not an unreasonable price to pay in order to ensure the speedy resolution of the claims of a substantial proportion of this influx. In the circumstances such detention can properly be described as a measure of last resort. ...” The Court of Appeal next considered whether the detention fell within the first limb of Article 5 § 1 (f), and held that the right to liberty in Article 5 § 1 (f) was intended to preserve the sovereign power of member States to decide whether to allow aliens to enter their territories on any terms whatsoever and that detention of an alien would be covered by the sub-paragraph unless and until entry was authorised, subject to the proviso, derived from Chahal v. the United Kingdom (15 November 1996, Reports 1996-V) that the asylum or deportation procedure should not be prolonged unreasonably.

On 31 October 2002 the House of Lords unanimously dismissed the applicant’s appeal ([2002] UKHL 41). Having taken note of evidence that the applications of approximately 13,000 asylum-seekers a year were processed at Oakington, which entailed scheduling up to 150 interviews a day, Lord Slynn of Hadley, with whom the other Law Lords agreed, held as follows: “In international law the principle has long been established that sovereign States can regulate the entry of aliens into their territory. ... 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. ... 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. ... It is ... 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’. ... 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’. ... The need for highly structured and tightly managed arrangements, which would be disrupted by late[ness] 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. ... 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.”