European Court of Human Rights confirms that Article 5 of the Convention does not require maximum time limits on immigration detention

Case of J.N. v The United Kingdom (Application no. 37289/12) [2016] ECHR 434 (19 May 2016)

The United Kingdom remains the only EU Member State which does not impose a statutory time limit on immigration detention prior to deportation.  A challenge to that position was recently heard before the European Court of Human Rights.  While the Court acknowledged that such time limits may be preferable, it concluded that the absence of a fixed time limit does not, in itself, render the UK’s immigration detention system incompatible with Article 5(1)(f) of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

However, the Court also held that long periods of detention are, in practice, likely to violate Article 5(1)(f), particularly where the relevant government agency has not pursued the detainee’s deportation with sufficient diligence, and even where that detention was prolonged by the detainee’s own uncooperative conduct. 

The applicant, an Iranian national, arrived in the United Kingdom and applied for asylum in January 2003.  His claim was refused and, after he was convicted of an (unrelated) offence and imprisoned, was notified that the Home Secretary had decided to make a deportation order against him.  He was detained, released, and subsequently detained again for several years.  Throughout his detention, he persistently refused to cooperate with the authorities in their attempts to effect a voluntary return to Iran. However, in deciding an application for judicial review, a domestic English court held that the Government had failed to act with reasonable diligence and expedition, and that part of that detention had been unlawful under UK domestic law.  The applicant subsequently applied to the ECHR seeking compensation for the entire period of detention on the basis that it contravened Article 5.

The Court first considered whether the absence of a fixed time limit rendered the applicant’s detention unlawful under Article 5(1)(f).

Relevant European law
Article 5(1) relevantly provides:

“… 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.”

In considering the “lawfulness” of detention, the Court does not simply defer to domestic law.  Rather, the Court may assess the “quality of the law” for compatibility with the Convention.  Thus, where a national law authorises a deprivation of liberty, that law must be sufficiently accessible, precise, and foreseeable to avoid arbitrariness. In assessing the “safeguards against arbitrariness”, the Court will consider the existence of clear legal provisions for ordering, extending, and for setting time limits upon detention; and the existence of an effective remedy for challenging the lawfulness and length of detention.

Relevantly, Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (the Returns Directive) imposes a fixed limit on immigration detention, subject to an extension where the individual concerned is non-cooperative or there are delays in obtaining the necessary documentation from third countries.  The UK, however, has exercised its right to “opt out” of the Returns Directive – making it the only EU State without any statutory time limit on immigration detention. 

The parties’ arguments
The applicant submitted that the lack of any fixed time limit on the maximum period of immigration detention was unjustifiable, given that many other EU States had imposed such limits.  The Directive reflected an increasing consensus that indefinite immigration detention was not consistent with basic standards of human rights.

The UK Government submitted that, while the UK does not impose a fixed time limit upon immigration detention, such detention was nonetheless subject to limits set by the common law.  Those limitations were expressed in domestic law by the “Hardial Singh principles”, which provide that in order for the Secretary of State to detain an individual:  

  1. The Secretary must intend to deport the person, and can only use the power to detain for that purpose.
  2. The deportee may only be detained for a period that is reasonable in the circumstances.
  3. If, before the expiry of that reasonable period, it becomes apparent that deportation cannot be effected within that reasonable period, the Secretary should not exercise the power of detention.
  4. The Secretary must act with reasonable diligence and expedition to effect deportation.

Thus, while domestic law did not contain a fixed time limit, the relevant test imposed by the common law was not arbitrary.  Rather, it protected detainees from arbitrariness by considering the individual circumstances of each case.

The Government further submitted that, if the Court concluded that a time limit was the only way to comply with Article 5(1)(f), this would have the effect of imposing the Returns Directive by the “back door”, despite the UK lawfully opting out of that Directive.

The Court’s decision
The Court concluded that the existence of a fixed upper limit on the duration of immigration detention was neither necessary, nor sufficient, to ensure compliance with Article 5.  While the existence of such a limit was relevant to an assessment of whether the law imposed sufficient “safeguards against arbitrariness”, it was not the sole determining factor.  Further, although the Returns Directive approach to immigration detention might be considered preferable, it does not represent the only system that is compatible with Article 5.

The Court considered that the Hardial Singh principles were an appropriate mechanism to assess arbitrariness and unreasonably long periods of detention, and were “almost identical” to the test applied by the Court in assessing compliance with the Convention.  

Was the applicant’s detention compatible with the Convention?
The Court further concluded that, on the facts, the applicant’s detention was not consistent with Article 5. The Government’s attempts to deport the applicant were not pursued with adequate “due diligence” to satisfy the Hardial Singh principles or Article 5.  This was consistent with the findings of the English Administrative Court. 

The Court emphasised that although the applicant repeatedly refused to cooperate with the authorities, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention”, however long.

This decision highlights that lengthy periods in detention are likely to violate Article 5, even where the detainee is uncooperative.  This acts as an important safeguard against arbitrariness in detention.  However, importantly, this case clarifies that an immigration detention program may comply with Article 5 despite the absence of any fixed upper limit on the duration of detention.  

The Returns Directive has led most European States to impose fixed time limits. But as argued by the Government, deciding that Article 5 imposed such time limits would have “subvert[ed] the democratic process” by which the UK lawfully opted out of that Directive.  This provides an interesting counterpoint to claims, aired in the context of the recent “Brexit” referendum, that the UK is subjected to EU laws and directives against its interests.  However, given the UK’s potential exit from the EU, the long-term implications of this decision for the UK immigration detention system may ultimately be limited.

The full text of the decision can be found here.

Rebecca Williams is a Solicitor at King & Wood Mallesons.