In J.N. v. the United Kingdom, Application no. 37289/12, the European Court of Human Rights (ECtHR) held that the UK’s regime of immigration detention complied with the requirements of article 5 despite the absence of specified maximum time limits or automatic judicial oversight in detention pending deportation cases.
The UK is the only country in the EU that has no statutory time limit on immigration detention. Other Member States have signed the Returns Directive 2008/115/EEC (from which the UK has ‘opted out’), which sets a maximum time limit of six months in detention prior to removal, or 18 months where the detainee fails to co-operate.
The absence of a time limit in the UK has been subject to criticism by independent experts and human rights monitoring bodies, including the United Nations Committee Against Torture, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the United Nations High Commissioner for Refugees, and the Commissioner for Human Rights of the Council of Europe. Only recently, the United Nations Human Rights Committee recommended the adoption of statutory time-limits for the detention of immigrants in its seventh periodic report on the United Kingdom; something which has also been called for by Her Majesty’s Chief Inspector of Prisons and the UK All Party Parliamentary Groups on Refugees and Migration, the domestic body with oversight of detention in prisons and immigration removal centres.
Although the ECtHR found in JN that the UK authorities had violated JN’s rights under Article 5(1), it agreed with the UK government that the absence of statutory time limits in the UK’s system of immigration detention did not breach Article 5 of the ECHR, because of the safeguard provided by principles established by case-law, in particular, those laid down in R v Governor of Durham Prison, ex p Singh [1984] 1 All ER 983.
Background
The applicant, known as “JN” was an Iranian national who unsuccessfully claimed asylum in the United Kingdom in 2003. On 13 February 2004 he was convicted of indecent assault and was sentenced to twelve months’ imprisonment. He was released on licence on 7 September 2004 but his licence was revoked the same year when he failed to comply with its terms. The applicant was re-arrested on 16 January 2005. On 31 March 2005, during his term of imprisonment, the SSHD served JN with a deportation order and he was subsequently detained pending deportation.
While JN was in detention, failed attempts were made to obtain the necessary travel documents from the Iranian Embassy and JN also persistently refused to co-operate with the authorities in their attempts to effect a voluntary return to Iran. In November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return, which he refused to sign.
On 13 September 2007 the applicant commenced judicial review proceedings challenging his continued detention. On 11 December 2007 the Administrative Court ordered the applicant’s release from detention subject to a number of conditions, including that he remain at a fixed address; that he report on a weekly basis to the nearest Border and Immigration Agency office; and that he take the steps necessary to obtain travel documents. The applicant again refused to sign a “disclaimer” on 14 December 2007. Although he was released on 17 December 2007, four days later the matter was brought back to the Administrative Court and a different judge discharged the previous order on account of JN’s failure to comply with the conditions for release (namely, that he take the steps necessary to obtain travel documents).
JN was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. On 13 October 2008 JN wrote to the United Kingdom Border Agency, indicating that he would be willing to return to Iran if he were compensated for the periods of detention, which he had undergone. However, the Border and Immigration Agency refused to this request. Between January and September 2009, the authorities made further attempts to engage JN in a voluntary return. However, on each occasion he indicated that he was not willing to co-operate or sign a disclaimer.
In November 2009, the applicant sought judicial review of the second period of detention and permission was granted in December 2009. The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”.They had failed to change their approach to the situation and they refused to bring a prosecution under the relevant legislation (s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. Accordingly, the judge found that the applicant’s detention had been unlawful from mid-September 2009 onwards.
The High Court rejected the idea that there should be guidance on how long it might be appropriate to detain an individual, however, referring to the notion of a detention tariff as being “repugnant and wrong” and urging “those preparing legally for such cases to abandon the attempt to ask the courts to set [one] by a review of the different periods established in different case”.
Following the High Court’s decision, the applicant complained to the ECtHR that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1)(f). It was also argued that there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that the entirety of his detention had been unlawful under Article 5, as at no point had there been a realistic prospect of removal.
The Court’s Decision
The ECtHR held that Article 5(1)(f) does not require states to establish time limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. In particular, in considering challenges to the lawfulness of immigration detention, UK domestic courts are required to apply the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh, [1984] WLR 704. These are:
- The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
- The deportee may only be detained for a period that is reasonable in all the circumstances;
- If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
- The Secretary of State should act with reasonable diligence and expedition to effect removal.
Failing compliance with the requisite conditions, the detention becomes unlawful under domestic law, with the attendant obligation on the authorities to release the individual. In JN, the Court noted that this test is not only consistent but almost identical to the one applied by the ECtHR under Article 5(1)(f) in determining whether or not detention has become “arbitrary”. Accordingly, the failure of the UK system to establish fixed time limits was not in violation of Article 5(1), in light of the other procedural safeguards it has against arbitrariness.
Although the “EU Returns Directive”, referred to above, does indeed set down a maximum time limit of 18 months for detention pending deportation, the UK has opted out of this Directive and it is therefore not binding. The ECtHR further considered that, despite this Directive creating a uniform approach over the majority of Council of Europe States, it could not be considered that such a position was required by Article 5(1)(f) or that this is the only position compatible with such a provision. There was nothing in case law that could undermine its”unequivocal and frequently re-iterated assertion that Article 5(1)(f) of the Convention does not lay down maximum time-limits for detention pending deportation”. This is compounded by the fact that two of the Council of Europe’s own instruments had addressed detention pending deportation and refrained from imposing such time limits (see, the Twenty Guidelines on Forced Return, 2005 and Parliamentary Assembly Resolution 1707 on the detention of asylum seekers and irregular migrants in Europe, 2010).
The ECtHR also refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.
However, the ECtHR disagreed with the domestic court’s restriction of JN’s “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, the Court said that this could not “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh. Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).
Comment
Concerns over the unlimited nature of detention pending deportation have been raised by a number of UN and European human rights bodies as well as numerous domestic campaign groups for years. Immigration detainees face significant impediments in accessing the domestic courts, amplified by reduced access to representation on account of deep cuts to legal aid, barriers of literacy and language, and difficulties in obtaining timely and accurate information regarding their cases. This has resulted in increasingly long periods of immigration detention, with some immigrants being administratively detained for as long as nine years, purportedly for the purpose of expulsion. Further there is, as yet, no separate regime for the vulnerable: among those detained were victims of torture and persons suffering from mental illness.
It appears that the UK courts have been finding longer periods of immigration detention permissible, especially where detainees, like JN, were not co-operating with their removal or deportation. The ECtHR judgment sends a message to the UK courts that lengthy periods in detention are likely to violate Article 5 and so be unlawful in domestic law, even where there is clear evidence that the detainee is not co-operating with the removal process. Lawyers have expressed the view that the decision calls into question the Court of Appeal’s decision in R (on the application of Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, [2012] All ER (D) 131 (Oct), which suggests that detention could be lawful even where there was no certainty when or if removal would take place.
The new Immigration Act 2016 provides for a new limitation on the detention of pregnant women and for, as yet unpublished, guidance on the detention of vulnerable persons. It also places a duty to arrange consideration of bail on the Secretary of State for all individuals detained pending deportation after four months (Sch. 10, para. 11, Immigration Act 2016). Together, these measures will hopefully act as further safeguards against arbitrariness, in the absence of explicit time limits on immigration.