FIRST SECTION
 
 
 
 
CASE OF AHMED v. THE UNITED KINGDOM
 
(Application no. 59727/13)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
2 March 2017
 
 
FINAL
 
03/07/2017
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ahmed v. the United Kingdom,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Mirjana Lazarova Trajkovska, President,
 Kristina Pardalos,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Robert Spano,
 Armen Harutyunyan,
 Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 31 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 59727/13) 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 a Somali national Mr Liban Mohamud Ahmed. 2. The applicant was represented by Mr Z. Yazdani of Deighton Pierce Glynn Solicitors, Mr R. Husain QC of Matrix Chambers, and Ms L. Dubinsky of Doughty Street Chambers. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod. 3. On 15 October 2014 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1977 and lives in London. A. The applicant’s immigration history
5. The applicant left Somalia with his family for the Netherlands in 1992 when he was fifteen years old. After claiming asylum, it would appear that the family were given a period of leave to remain in the Netherlands. During this period the applicant married and had a son, born in 1994. The applicant’s family travelled to the United Kingdom in 1998. The applicant initially remained in the Netherlands but on 11 December 1999 he arrived in the United Kingdom, where he claimed asylum. In doing so, he provided the immigration authorities with a false name and a false immigration history in order to avoid being sent back to the Netherlands. Although the asylum application was unsuccessful the applicant was granted exceptional leave to remain until 2004. 6. The applicant received ten criminal convictions over the period from 16 November 2001 to 4 August 2005. In December 2007 he was convicted of a public order offence and of failing to surrender. He was sentenced to four and a half months’ imprisonment. 7. On 29 January 2008 the applicant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused an application for indefinite leave to remain in the United Kingdom. The applicant lodged an appeal against the decision to deport him on 1 February 2008. That appeal was dismissed on 30 June 2008 and his appeal rights were exhausted on 8 July 2008. B. The applicant’s immigration detention
8. On 8 February 2008, when the applicant had served half of his final custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order against him. The Secretary of State signed the deportation order on 29 October 2008 and he was thereafter detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending his removal from the United Kingdom. 9. On 2 June 2009 removal directions were set for 17 June 2009. However, they were cancelled on 16 June 2009 when the applicant made an application to this Court (application no. 26023/09), which granted an interim measure under Rule 39 of the Rules of Court. 10. The applicant’s detention was reviewed monthly and the review forms set out the reasons for maintaining detention. The form from July 2009 includes the following statement in reference to the Rule 39 measure: “Whilst this means that enforced removal is not possible, [the applicant] could reduce the length of time he spends in detention by withdrawing voluntarily”. A similar point features in some, if not all, of the later forms. The form for February 2010 notes that “Rule 39 ECHR is a barrier to removal but I note that FRS [Facilitated Return Scheme] is an option that should be explored to the full to expedite his removal from the UK”. Likewise, the form for July 2010 states that “[t]he length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject”. Furthermore, the form from December 2010 indicated that the applicant “could minimise his time in detention by withdrawing [the application to the ECHR] and taking up FRS which is offered each month” and that he could “end his detention by volunteering to return (with or without FRS) at any time”. 11. Applications for bail were refused on 9 November 2009, 21 April 2010 and 14 July 2010 as the Immigration Judges were not satisfied that the applicant would answer to any conditions set. On 9 November 2009 the Immigration Judge further noted that although the applicant had been in detention for a lengthy period, “the most recent period of detention is on account of delays with his own application to the European Court of Human Rights”. 12. The applicant made further representations against removal on 10 June 2010. Those representations were treated as an application for revocation of the deportation order, but on 17 November 2010 the Secretary of State refused to revoke the order. However, following an appeal by the applicant, the Secretary of State withdrew the refusal decision on 12 July 2011. 13. On 19 November 2010 the applicant filed a claim for judicial review, contending that his ongoing detention was unlawful. Permission was granted on 17 June 2011 but a further application for bail was refused. On 13 July 2011, some two weeks after the Court ruled in Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011), the applicant was granted bail. 14. A hearing took place on 7 October 2011. Pursuant to the principles set down by the High Court in R. v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (see section on domestic law below), the Secretary of State cannot lawfully detain a person pending removal for longer than a reasonable period and, if it becomes apparent that the deportation cannot be effected within a reasonable period, the detention will become unlawful even if the reasonable period has not yet expired. The applicant claimed that his detention was in breach of the principles (a) on or after 16 June 2009 when the Court granted an interim measure under Rule 39 of the Rules of Court; (b) on or immediately after 16 June 2010 when he applied to revoke the deportation order; or (c) at all points after the revocation refusal on 17 November 2010. 15. In a judgment dated 14 November 2011 the Administrative Court dismissed the claim. It noted that in deciding whether or not there was a realistic prospect that deportation would take place within a reasonable time, the risk of absconding or re-offending were “of paramount importance” but neither risk could be regarded as a “trump card”. Moreover, the fact that the period of detention occurred while the applicant was pursuing an appeal or comparable judicial process would also be a highly relevant factor, especially if there was a risk of absconding or reoffending. 16. The court noted that the applicant in the present case had six convictions for absconding and the Immigration Judges had consistently concluded that he was a significant abscond risk. It agreed with the Immigration Judges and also concluded that the risk was plainly substantial on the evidence available. Equally, the court took into account the fact that the applicant had family in the country at the times he absconded and therefore, contrary to his assertions, their presence did not remove the risk of absconding. Likewise, the Secretary of State’s detention reviews had characterised the risk of the applicant reoffending as “high”. The court further noted that the applicant’s offences became less serious and more intermittent as time went on. However, the fact remained that while he was free he was committing offences of such seriousness as to require him to be imprisoned, including robbery and public order offences. The court also considered whether alternatives to detention could be used such as electronic tagging, monitoring by telephone and regular reporting. However, given the applicant’s history of absconding, it concluded that the alternatives would not have been sufficient and there was an absence of adequate assurances from the applicant. 17. At the time the Administrative Court noted that the interim measure under Rule 39 of the Rules of Court, was awaiting a lead judgment on returns to Mogadishu (Sufi and Elmi, cited above) and it was clear that there would be no resolution of the applicant’s claim - and the interim measure would therefore not be lifted - before that judgment was handed down. However, the Administrative Court observed that at the time the interim measure was indicated, there was uncertainty about when that judgment could be expected. Moreover, while the applicants in Sufi and Elmi would have had a reasonable to good prospect of success, a positive outcome had not been inevitable. Consequently, the Administrative Court did not accept that there was not, at the time the interim measure was indicated, a realistic prospect of removing the applicant within a reasonable time. 18. Furthermore, the court did not accept that by the time of the applicant’s application for a revocation order, a reasonable period had already expired or that there was no realistic prospect of deportation within a reasonable time. In addition, it observed that the Secretary of State had been entitled to take two weeks to consider the applicant’s personal situation in light of the judgment in Sufi and Elmi. It therefore did not consider his continued detention up to 13 July 2011 to be unlawful. 19. The applicant was granted permission to appeal to the Court of Appeal. On appeal, he restated his arguments concerning the Hardial Singh principles which had been advanced in the court below. In addition, he submitted that the detention was vitiated by two public law errors that bore directly on the decision to detain: first, following the indication of the interim measure the Secretary of State had failed to take any reasonable steps to acquaint herself with when it might be lifted; and secondly, that the detention was maintained on the unlawful basis that the applicant could reduce the length of time in detention by withdrawing his application to the Court and returning voluntarily to Somalia. Finally, the applicant argued that his detention was in breach of Article 5 of the Convention. 20. In its judgment of 20 October 2012, the Court of Appeal conducted an extensive review of the circumstances of the case, in particular the fact that the applicant’s appeal against deportation as well as three separate bail applications had been rejected by immigration judges, as well as the broader context in relation to the on-going litigation concerning removals to Somalia both before the domestic courts and tribunals as well as before this Court (see §§ 28 to 32). It took into consideration the fact that the Rule 39 measure applied in the applicant’s case did not involve any specific assessment of risk towards him by this Court, since at the material time this Court had adopted a fact-insensitive approach towards Rule 39 measures in respect of removals to Somalia, and noted the consequence that from October 2008 this Court had adjourned 116 applications concerning removal to Somalia. It also took account of correspondence between the Government and the registry of this Court from which it was clear that from April 2009 the Court would be granting a fact-insensitive Rule 39 measure to any applicant with removal directions to Mogadishu as well as the separate correspondence between the Government and this Court concerning the progress of Sufi and Elmi, cited above and the linked domestic case law. 21. With regard to the Hardial Singh ground, the Court of Appeal stated that there could be a realistic prospect of success without it being possible to specify or predict the date by which, or the period in which, removal can reasonably be expected to occur. It accepted that at the time of receipt of the Rule 39 measure in the applicant’s case, although it was not possible to say when the proceedings before the Court would be concluded, there was nonetheless a reasonable prospect of their being concluded and of removal being effected within a reasonable time. Likewise, the Court of Appeal saw no reason to differ from the overall conclusion of the lower court on the lawfulness of the applicant’s detention at the time of the application for revocation of the deportation order or after the judgment in Sufi and Elmi was handed down. Lord Justice Elias dissented on one point only: acknowledging that “there is no one right answer to the question what is a reasonable period”, he believed that the period of two weeks which elapsed following the judgment in Sufi and Elmi before the applicant was released from detention was not reasonable in all the circumstances. 22. With regard to the second ground of appeal, the court accepted that if the applicant were able to show that the decisions to maintain his detention were vitiated by public law he would succeed in establishing that the detention was unlawful and would have a claim of false imprisonment. However, the Court of Appeal found that although some of the passages in the review forms were not very happily expressed, they did not involve any legal error. Moreover, as the same conclusion was reached regardless of whether or not reference was made to the question of voluntary return, it appeared that the applicant’s refusal of this offer played no material part in the assessment of whether detention should be maintained. 23. Finally, the court found that Article 5 § 1(f) of the Convention added nothing of substance in the present case. In reaching this conclusion, it rejected the applicant’s assertion that Mikolenko v. Estonia, no. 10664/05, 8 October 2009 was authority for the proposition that the lack of a realistic prospect of deportation within a defined period rendered detention under Article 5 § 1(f) unlawful. 24. The Supreme Court refused the applicant leave to appeal on 26 March 2013. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention pending deportation
25. The power to detain a person pending deportation is contained in Paragraph 2 of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), (for details see V.M. v. the United Kingdom, no. 49734/12, § 52, 1 September 2016). B. Challenges to detention
26. 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. 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. 27. 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 has been considered 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” (see J.N. v. the United Kingdom, no. 37289/12, § 97, 19 May 2016). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) OF THE CONVENTION
28. The applicant complained that his detention from 8 February 2008 to 13 July 2011 fell short of the requirements of Article 5 § 1 (f) of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
... (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
29  The Government contested that argument. A. Admissibility
30. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
31. The applicant submitted that the domestic law governing administrative detention of immigrants for the purposes of expulsion was not sufficiently precise, accessible and foreseeable in its consequences to meet the standard of lawfulness and, as such, it lacked the quality of law necessary to deprive him of his liberty. 32. He also argued that his detention was not, throughout its duration, with a view to deportation because during the last 25 months of his detention there was a Rule 39 measure in place preventing his expulsion to Somalia and no other destination was being explored as a possibility; there were protracted periods of inactivity by the Respondent Government during his detention amounting to a failure to act with “due diligence”; and the detention period overall was excessive. 33. The Government submitted that the domestic law governing administrative detention of migrants was precise and foreseeable. The applicant’s other arguments about the circumstances of his detention had already been considered in detail by the domestic courts and rejected. In this respect they submitted that the Hardial Singh test applied by the domestic courts to assess whether detention was arbitrary was more restrictive than the equivalent test under Article 5 § 1 (f), and so gave the applicant greater protection at domestic level than that available under the Convention. The domestic courts had properly applied the Hardial Singh principles and nothing in the applicant’s arguments showed otherwise. Accordingly, there could be no violation of Article 5 § 1 (f). In any event, they argue that his detention was lawful and they did act with the necessary due diligence. 2. The Court’s assessment
(a)  General principles
34. For a detailed summary of the general principles see J.N., cited above, §§ 74-88. In that case, the Court found “that the system of immigration detention in the United Kingdom does not, in principle, fall short of the requirements of Article 5 § 1 (f) of the Convention” (J.N., cited above, § 101). 35. In asking whether “action is being taken with a view to deportation”, this Court has found that removal must be a realistic prospect (Louled Massoud v. Malta, no. 24340/08, § 69, 27 July 2010, A. and Others v. the United Kingdom [GC], no. 3455/05, § 167, ECHR 2009, Amie and Others v. Bulgaria, no. 58149/08, § 144, 12 February 2013 and Mikolenko, cited above, § 68). A Rule 39 measure cannot be employed as a justification for the indefinite detention of persons without resolving their legal status (Ryabikin v. Russia, no. 8320/04, § 132, 19 June 2008). (b)  Application of the general principles to the present case
36. The applicant’s complaints include a submission that the system of immigration detention in the United Kingdom – in particular, the absence of fixed time-limits and automatic judicial review – does not comply with the “quality-of-law” requirements of Article 5 § 1 (f) of the Convention. In the recent case of J.N., cited above, §§ 90-93, the Court expressly rejected this argument. 37. Therefore, the applicable law was sufficiently accessible, precise and foreseeable and the applicant’s complaints concerning the “lawfulness” of his detention must be rejected. 38. Consequently, the principal question for the Court to consider is whether, at any time, the applicant’s detention could be said to have been “arbitrary”. Before turning to this question, the Court notes that the applicant raises his arguments in respect of the period from 8 February 2008 (when his criminal sentence ended – see paragraph 8 above) to 13 July 2011 when he was released. In this respect the Court, however, observes that the Court of Appeal expressly noted that the parties had accepted that the detention was lawful until 16 June 2009, when the Rule 39 measure was granted by this Court (see paragraph 9 above). Accordingly, this Court will only examine the question of whether the applicant’s detention was “arbitrary” for the period from 16 June 2009 to 13 July 2011 (2 years and 27 days). 39. Turning to the question of “arbitrariness”,

Outcome for Article 5: no_violation