BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Saadi & Ors, R (on the application of) v Secretary Of State For Home Department [2001] EWCA Civ 1512 (19 October 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1512.html
Cite as: [2001] EWCA Civ 1512, [2002] ACD 7, [2002] Imm AR 121, [2002] WLR 356, [2002] HRLR 7, [2001] 4 All ER 961, [2002] 1 WLR 356

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2002] 1 WLR 356] [Help]


Neutral Citation Number: [2001] EWCA Civ 1512
Case No: C2001/2021

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Collins

Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 19th October 2001

B e f o r e :

LORD PHILLIPS MR
LORD JUSTICE SCHIEMANN
and
LORD JUSTICE WALLER

____________________

The Queen on the Application of:
Shayan Baram Saadi
Zhenar Fazi Maged
Dilshad Hassan Osman
and
Rizgan Mohammed
Respondents
- and -

Secretary of State for the Home Department
Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

The Attorney General (Lord Goldsmith, QC), David Pannick, QC and Michael Fordham (instructed by Treasury Solicitor for the Appellant)
Rick Scannell and Duran Seddon (instructed by Wilson & Co for the Respondents)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    SUMMARY
    (This Summary forms no part of the judgment of the Court)

    The Home Secretary's policy of providing a facility at Oakington for the detention of certain asylum seekers whose claims can be processed within about 7 days and the detention of such asylum seekers for that short period, is lawful, both under the proper construction of the Immigration Act 1971 without regard to the effect of the incorporation of the Convention on Human Rights and under the Convention as incorporated by the Human Rights Act 1998.

    LORD PHILLIPS MR

    This is the judgment of the Court.

  1. On 7 September Collins J., sitting in the Administrative Court, gave judgment in favour of four Kurds who had come to this country to seek asylum. They had been detained for a period not exceeding ten days in Oakington Reception Centre. Collins J. held that this detention was unlawful because it violated the right to liberty enshrined in Article 5 of the European Convention on Human Rights ('the Human Rights Convention'). If he is correct a cornerstone of the Government's current procedure for processing applications for asylum is removed. The Secretary of State appeals against that decision. The appeal raises an issue of principle of importance not only in this jurisdiction, but in other States who are signatories to the Human Rights Convention and who are having to cope with an unprecedented flood of asylum seekers. We have allowed to intervene, by way of a joint written submission, Liberty, Justice and the Aire Centre.
  2. Collins J's judgment has yet to be reported in an official law report. We annexe it to this judgment. It sets out the background facts with admirable clarity and relieves us of the need to attempt to duplicate that exercise.
  3. Over recent years applications for asylum to this and other countries have been escalating. Here the average monthly number of applications from July to September 1999 was nearly 7,000. This was 60% higher than the figure for the previous year. This appeal involves claimants from Iraq. In relation to that country, claims in 1997 averaged 90 per month, in 1998 110 per month, in 1999 150 per month and, in the first months of 2000, 280 per month. There are a number of reasons for this. Internal conflicts carrying with them well-founded fears of persecution for minorities are unhappily prevalent in a number of states. At the same time conflicts between states, harsh treatment falling short of persecution, and the marked disparity in living conditions, standards of living and social benefits in different countries have led many to seek to emigrate as refugees when their plight, though often miserable, is not such as to entitle them to refugee status.
  4. Coping with the huge number of asylum seekers poses heavy administrative problems. It is desirable that those who are entitled to asylum should have their status recognised as quickly as possible, so that they can enjoy the benefits that we accord to refugees. It is current Government policy that those who are not entitled to asylum should be removed, unless there are special circumstances which make it appropriate to grant them exceptional leave to remain. Again it is desirable that the status of these be determined as quickly as possible. To this end the Government has sought to introduce a fast track procedure which involves the detention of some applicants for a period of about a week in order to ensure speedy and efficient processing of their applications. It is the legality of that procedure which is in issue. The respondents contend that it is contrary to our domestic law, as it was before the Human Rights Act 1998 incorporated the Human Rights Convention. They further contend that it violates the Convention. Collins J. rejected the former submission but upheld the latter. Both are advanced before us.
  5. It is artificial, but convenient, to consider English domestic law and the Human Rights Convention separately. Collins J. adopted that course, and we propose to do the same. We shall start, as did he, with domestic law. The power of the executive to detain immigrants has long been governed by statute. At the time that both the Human Rights Convention and the Convention Relating to the Status of Refugees ('the Refugee Convention') were agreed, the detention of aliens was governed by the Aliens Order 1920, made under the Aliens Restriction Acts 1914 and 1919. Aliens landing without leave were liable to be detained until removed - see Halsbury's Laws 3rd Ed. Paragraph 992. These statutory provisions were replaced by the Immigration Act 1971. Collins J. has set out at paragraph 2 of his judgment the provisions of that Act which authorise detention of a person pending a decision to give or refuse him leave to enter, or alternatively the grant of temporary admission. The power to grant temporary admission only exists in relation to a person who is liable to be detained. Thus, as a matter of statutory interpretation the power to detain persists up to the time that the decision to grant or refuse leave to enter is taken.
  6. As an alternative to temporary admission, bail may be granted to a person detained. The application for bail is made to an immigration officer or adjudicator, and the grant of bail is an administrative, not judicial act. Bail cannot be granted to a person detained pending examination unless seven days have elapsed since the arrival of that person in the United Kingdom.
  7. Having regard to the statutory provisions considered above, there can be no doubt that the detention of the respondents at Oakington for a maximum of ten days fell within the express statutory powers of the immigration officers. That is not, of course, the end of the matter. Express statutory powers can be limited by implication. The lawful exercise of those powers can also be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such policy gives rise. The issue in relation to domestic law is whether the detention of the respondents infringed any such implicit restriction.
  8. The power to detain conferred by Paragraph 16(1) of Schedule 2 to the 1971 Act is expressed to be "pending his examination and pending a decision to give or refuse him leave to enter". Read literally, the only limit on the power is a temporal one. It persists until the decision is taken to give or refuse leave to enter.
  9. For the respondents, Mr Scannell argued that the purpose for which the power was given was the conduct of the examination of the asylum seeker. He further argued that detention was only authorised inasmuch as it was necessary to achieve that purpose. Where an applicant was prepared voluntarily to submit to examination there was no necessity and thus no power to detain. Detention would be justified where, for instance, there were reasonable grounds for apprehending that the applicant might abscond.
  10. Collins J. did not accept this argument. He held that the purpose was clearly set out in paragraph 16(1), and that, in particular, paragraph 16(1) enabled a person to be detained 'pending a decision to give or refuse him leave to enter'. We agree. The wording of the paragraph is clear. It empowers detention not for the purpose of examination or for the purpose of deciding whether to give or refuse leave to enter, but 'pending' those events. The purpose of the power to detain is simply to prevent a person entering without leave.
  11. Mr Scannell argued that this could be achieved by the grant of temporary admission. Under section 11 of the 1971 Act, temporary admission is deemed not to constitute entry. Mr Scannell submitted that where there was no risk that an applicant would not co-operate with the immigration authorities, he could not properly be detained but had to be granted temporary admission.
  12. As a matter of statutory interpretation, this contention is manifestly unsound. It amounts to contending that there is no power to detain where temporary admission can be granted. Yet the power to grant temporary admission only exists in relation to a person who is 'liable to be detained'.
  13. It does not follow that there is no implied limitation on the power to detain pending examination and the decision whether or not to grant leave to enter. A similar power to detain is conferred on the Secretary of State 'pending the making of a deportation order' - see Schedule 3 paragraph 2(2) to the 1971 Act. In R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 at p.706 Woolf J. held that although this power was not subject to any express limitation of time it was impliedly limited to such period as was reasonably necessary to enable the machinery of deportation to be carried out. As Collins J. recorded, this principle was approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 at p.111.
  14. Collins J. concluded that the only limitation on the power to detain pending examination and the decision whether to grant or refuse leave to enter is that the detention must be for a reasonable time. For the Secretary of State, the Attorney General supported this conclusion. He argued that the power to detain persisted for so long as was reasonably necessary to conduct the examination and to reach a decision whether or not to grant leave to enter. As a matter of statutory interpretation we accept this submission. Were it not correct, the power to grant temporary admission would also be liable to come to an end before an examination could reasonably be completed and a decision whether to grant or refuse leave to enter reasonably be taken.
  15. We are not aware that it has ever been the policy of the Secretary of State that applicants for leave to enter should be detained pending the decision of their applications, however long that might take. A more liberal policy has been adopted whereby he has approved the exercise of the power to grant temporary admission in place of detention. If the basis upon which immigration officers are detaining asylum seekers at Oakington is in conflict with this policy, then, under established principles of public law, they are acting unlawfully.
  16. Collins J. has set out in his judgment details of the Home Office policy on detention set out in the 1998 White Paper entitled "Fairer, Faster and Firmer - a Modern Approach to Immigration and Asylum". Under that White Paper the Home Office adopted as a matter of policy principles that Mr Scannell has unsuccessfully contended they were bound to apply as a matter of law. Initial detention would last no longer than was necessary to clarify a person's identity and the nature of their claim. Thereafter they would be granted temporary admission unless there was reason to believe that they would not comply with the terms of that admission.
  17. Had this policy persisted, the respondents would have had an unanswerable claim. Home Office policy changed, however, on 16 March 2000. On that day the Minister, Mrs Barbara Roche, announced a new and additional criterion for detention. A detention facility would be provided at Oakington. Detention would enable the examination of applicants for asylum and the decision whether or not to grant them this to proceed with much greater expedition. Detention at Oakington would be restricted to about seven days. Asylum applicants would be selected for detention at Oakington only where it seemed likely that it would be possible to reach a decision on their applications within that period. If this proved a false hope, they would be given temporary admission or, if necessary, removed for detention elsewhere in accordance with existing criteria.
  18. There was much debate before Collins J. and before us as to whether it was necessary to detain applicants in order to achieve the expedition that was the object of the new policy. Mr Scannell sought to make out a case that this was not even the Secretary of State's motive for the detention. Rather, he submitted, it was to assuage concerns of those living in the vicinity of Oakington at the prospect of large numbers of asylum seekers wandering around the locality, concerns that might have resulted in effective opposition to the grant of planning permission for the centre.
  19. This suggestion was categorically denied by Mr Ian Martin, an Inspector in the Immigration and Nationality Directorate in the Home Office and Oakington Project Manager, who submitted no less than four statements on behalf of the Secretary of State. Having considered the evidence Collins J. dismissed the allegation that the Secretary of State's decision to detain applicants at Oakington was attributable to this ulterior motive. We consider that he was right to do so.
  20. It is the case for the Secretary of State that detention at Oakington is necessary if the expedition of processing asylum claims that will result in resolving them within a week is to be achieved. The question arises as to whether this case is made out. Collins J. did not consider that this question was relevant when considering whether detention fell within the powers conferred by the 1971 Act, putting any question of the Human Rights Act on one side. He held that the detention fell within those powers because it was 'pending' the decision of whether or not to grant leave to enter and it could not be argued that 7 to 10 days was an excessive period to consider an application for asylum. As to this last point we agree. In this context it is particularly significant that paragraph 22(1B) of Schedule 2 to the 1971 Act expressly provides that bail cannot be granted to a person detained pending examination unless seven days have elapsed since the arrival of that person in the United Kingdom.
  21. Collins J. considered whether it was necessary to detain applicants in order to consider their applications with the desired expedition in the context of the test of proportionality under the Human Rights Act. He expressed scepticism about the Secretary of State's case. He suggested that stringent conditions of residence, albeit falling short of a 24 hour presence, might well suffice and that applicants would have no incentive to leave the premises and would be unlikely to do so. He described concerns expressed by Mr Martin as 'based on assumption and speculation rather than on substance'.
  22. At the end of the day, Collins J. did not have to decide the issue because he held that detention for the sole purpose of effecting a speedy determination of applications was not permitted by Article 5(1)(f) of the Convention and was therefore an unlawful infringement of liberty under Article 5. Nonetheless he expressed the view that, if Article 5(1)(f) applied, the detention was disproportionate.
  23. We have yet to consider the effect of the Human Rights Convention, but we are not persuaded that the question of whether it is necessary to detain asylum seekers in order to process them speedily is irrelevant from the viewpoint of domestic law. If the policy reason for detention is that this is necessary in order to effect speedy processing of applications for asylum and, in fact, it is not necessary for this purpose, then the decision to detain may be open to attack on the ground of irrationality.
  24. The Attorney General drew attention to lengthy sections of two of Mr Martin's statements dealing with this issue. We quote some relatively short extracts from these:
  25. "The view of the Home Office is as follows: that blanket restrictions would not be as effective to ensure that applicants would remain at Oakington; that the reality is that individuals would leave the premises if not formally detained; and that this would indeed undermine the speed and effectiveness of the process which are its very objective. There is a difference between, on the one hand, directing applicants to stay at Oakington and not to leave and, on the other hand, taking measures to prevent them from doing so. In the view of the Home Office, in order to achieve the purpose of ensuring that applicants remain at Oakington, it is necessary to take steps to prevent them from leaving.
    ….
    If applicants absented themselves, even temporarily, this would present substantial difficulties for the processing of cases. It would affect the absent applicants' own cases. It would stand also to have a detrimental knock-on effect on the efficient operation of the decision making process for others.
    ….
    These are not easy questions and a balance has to be struck. In introducing the Oakington regime the Home Office was of the clear view that the presence of applicants on site at all times was necessary for the proper and effective working of the fast-track regime. I would add from experience that in my view the applicants' continued presence on site does indeed play a vital part in achieving the objectives for which Oakington was introduced.
    ….
    Careful thought has been given, and is given on an ongoing basis, as to how to make the detention as short as possible while achieving the objectives of substantive decision-making within 7-10 days. The Secretary of State's view is that it is necessary for the applicant to be available on site beyond day 3."
  26. The Attorney General submitted that the court should accept this evidence as demonstrating that detention is reasonably necessary to achieve the expedition for which the Secretary of State is aiming. He further submitted that it is the Secretary of State who has responsibility for the arduous task of handling the thousands of immigrants seeking asylum in this country and that it is for the Secretary of State and not the Court to decide what measures are necessary. The Secretary of State and his officials have experience which the Court does not enjoy.
  27. 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 conscious that we are doing that for which Collins J. criticised Mr Martin. 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.
  28. 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 Lord Williams of Mostyn observed in debate in the House of Lords on 2 November 1999, faced with applications for asylum at the rate of nearly 7000 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.
  29. In this context we would emphasise one further point. The Attorney General pointed out not merely that detention was for a short period but that it was in conditions appropriate for asylum seekers as opposed, for example, to convicted prisoners. This point seems to us to be of some importance in identifying what is really at issue in this case. The circumstances at Oakington involve a degree of deprivation, but it is the fact of detention to which objection is made rather than the living conditions in the centre. Mr Scannell accepts that if temporary admission had been granted, it would have been appropriate to make this subject to stringent conditions as to residence. The regime that such conditions would have involved would not have differed greatly from those at Oakington, save that applicants would not have been physically prevented from leaving the premises. The issue is whether the additional element of detention can lawfully be imposed. We have concluded that under domestic law it can.
  30. Mr Scannell had a further objection to the practice of detaining applicants at Oakington. He contended that it was arbitrary, because Oakington is not large enough to contain all who would satisfy the criteria for admission to it. Whether an applicant is sent to Oakington or not is thus, to a degree, a matter of chance. Collins J. rejected this submission, and so do we. The criteria governing the selection of those who are sent to Oakington are clear and rational. We agree with the judge that the fact that there is limited room at Oakington, so that not all who would qualify to go there can be accommodated, does not result in arbitrariness.
  31. For these reasons we agree with the conclusion of Collins J. that the detention of the respondents fell within the power conferred on immigration officers by the 1971 Act and that, considered solely from the viewpoint of domestic legislation, the policy of the Secretary of State was lawful. As Collins J. observed, the critical issue is whether the Human Rights Act renders it unlawful.
  32. The human right in play in these proceedings is the right to liberty. Article 5 of the Convention provides:
  33. 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.

    There follows a list of exceptions to the right to liberty. These include:

    (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.
  34. At the heart of this part of the appeal is an issue as to what is meant by 'unauthorised entry'. The case of the Secretary of State is simple. Unauthorised entry is an entry which has not been authorised. Under international law, every state has the right to decide who may enter its territory. When an alien sets foot on the territory of a state, that state can do two things. It can authorise entry, with or without restrictions, or it can refuse entry. Unless and until it authorises entry, the alien will, if he or she moves within the territory, be effecting unauthorised entry. Article 5(1)(f) recognises the right of a state to prevent this by detaining the person seeking to enter.
  35. Collins J. rejected this submission. He held:
  36. "Once it is accepted that an applicant has made a proper application for asylum and there is no risk that he will abscond or otherwise misbehave, it is impossible to see how it could reasonably be said that he needs to be detained to prevent his effecting an unauthorised entry. He is doing all that he should to ensure that he can make an authorised entry."
  37. Mr Scannell submitted that this analysis was correct. We put to him that this meant that Article 5 required a state to grant temporary admission into its territory to any applicant for asylum who is not expected to abscond or otherwise misbehave for as long as is necessary to resolve that person's application for asylum. After reflecting, he agreed with this and reduced his submissions on the point to writing. He did so in the context of our domestic legislation.
  38. "There can be no dispute but that both 'leave' (s4 1971 Act) and 'temporary admission' are forms of lawful authority for a person who is subject to immigration control to be present in the UK. This provides the inevitable and necessary context in which to examine the meaning of article 5(1)(f) in these cases.
    There can therefore be no question that the grant of leave or the grant of temporary admission constitute an 'unauthorised entry' simply because they are both 'authorised'.
    The grant of temporary admission is a form of 'entry' within the meaning of 5(1)(f). Seen as such, in respect of asylum seekers who will not 'abscond or otherwise misbehave', there is indeed an obligation upon the Secretary of State to grant such temporary admission since it cannot be said that detention will be 'to prevent his effecting an unauthorised entry'."
  39. The conclusions that the intervenors invited us to draw were to similar effect:
  40. "Where a foreigner exercises the international humanitarian right to seek asylum and does so in compliance with national law provisions for claims to enter the territory, he or she is not seeking unauthorised entry, and should not in principle and without more be subject to a deprivation of liberty. While a restriction of liberty may be appropriate in such cases, a deprivation should be reserved only for cases where there is evidence of absconding or of non-co-operation with determination procedures. Detention must be a rational response to the facts of the case rather than born out of administrative convenience. On ordinary principles and consistently with the case law of the European Court of Human Rights, the permissible limbs for detention under Article 5(1)(f) must be narrowly construed.
    Thus there must be a rational connection between the detention and the enumerated limbs under Article 5(1)(f). Where an asylum seeker makes a claim in compliance with national law procedures for entry, he or she is not to be regarded as unlawfully present nor as seeking unauthorised entry, and detention thus cannot prevent that which in law is not being sought. Detention cannot be permitted under the first limb."
  41. The Convention is a living instrument and when interpreting it and considering the Strasbourg jurisprudence, it is necessary to bear in mind that its effect may change in step with changes in the standards applied by the member States. As a starting point, however, it seems to us sensible to consider the position in 1951, when the Convention was agreed. In agreeing to Article 5, were member States binding themselves to grant to aliens a licence to enter their territories and to enjoy liberty, albeit subject to some restrictions, within them, pending the determination of applications for a more formal authority to enter? We do not believe that they were. The right of a State to determine whether aliens should enter its territory was a firmly entrenched principle of public international law.
  42. In Attorney-General for Canada v Cain [1906] AC 542 at 546, Lord Atkinson, when giving the decision of the Privy Council, said:
  43. "One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government, or to its social or material interests: Vattel, Law of Nations, book 1, s.231; book 2, s.125."
  44. The 8th edition of Oppenheim, published in 1955, stated at paragraph 314:
  45. "The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory."
  46. We have no reason to believe that the signatories to the Convention intended to make inroads into that discretion for those awaiting a decision on an application for leave to enter. The problem of what to do about large numbers of asylum seekers, some of whose applications require many months to process, was not a live one at the time. We were told by counsel that even at the time that the 1971 Act was passed, applications for asylum were running at the rate of only around 200 a year, and it is significant that that Act makes no express reference to applicants for asylum. The same edition of Oppenheim comments at paragraph 316:
  47. "Now the so-called right of asylum is certainly not a right possessed by the alien to demand that the State into whose territory he has entered with the intention of escaping prosecution in some other State should grant protection and asylum. For such State need not grant such demands. The Constitutions of a number of countries expressly grant the right of asylum to persons persecuted for political reasons, but it cannot yet be said that such a right has become a 'general principle of law' recognised by civilised States and as such forming part of International Law."
  48. Our conclusion is that the exception to the right to liberty in Article 5(1)(f) was intended to preserve the right of the member States to decide whether to allow aliens to enter their territories on any terms whatsoever. Article 5(1)(f) carried, initially at least, the meaning for which the Secretary of State contends.
  49. In Abdulaziz, Cabales and Balkandani v United Kingdom (1985) 7 EHRR 471 at p.497 the European Court observed:
  50. "Moreover, the court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well established international law and subject to its treaty obligations, a state has the right to control the entry of non-nationals into its territory."
  51. In the field of immigration, the Court gives considerable weight to the right of States to control immigration. It has, however, on occasion held that this right is subordinated to the right to family life.
  52. It is possible that the approach of the Court to the position of asylum applicants has changed over the years as more States have agreed to recognise the right to asylum and the volume of asylum seekers has grown. So far as general principles of international law are concerned the position has not changed. The current (4th) edition of Halsbury's Laws, reissued in 2OOO, states in paragraphs 984 and 985 of volume 18(2):
  53. "'In customary international law a state is free to refuse the admission of aliens to its territory or to annex whatever conditions it pleases to their entry… a state may expel an alien from its territory at its discretion."
  54. Turning more specifically to asylum seekers, in the second (1996) edition of Goodwin-Gill on The Refugee in International Law, the author refers, at p.250, to a Plenary Session of the Executive Committee of the United Nations Committee on Human Rights in 1986 which recognised that:
  55. "…if necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order."
  56. The intervenors referred us to Communication No 560/1993 of the Human Rights Committee expressing views under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights in relation to the detention of boat people by Australia. In relation to the issue of whether detention was arbitrary under the Covenant, the Committee commented:
  57. "…that the notion of 'arbitrariness' must not be equated with 'against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. The State party however, seeks to justify the author's detention by the fact that he entered Australia unlawfully and by the perceived incentive for the applicant to abscond if left in liberty. The question for the Committee is whether these grounds are sufficient to justify indefinite and prolonged detention.
    The Committee agrees that there is no basis for the author's claim that it is per se arbitrary to detain individuals requesting asylum. Nor can it find any support for the contention that there is a rule of customary international law which would render all such detention arbitrary.
    The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of co-operation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal."
  58. The intervenors also placed before us some information, hastily obtained, of the way asylum seekers are treated in certain Western European countries. While these demonstrated the use of reception centres, and restrictions on freedom of movement, they did not evidence a practice of detaining asylum seekers. The Attorney-General told us that the adequacy of this information was in issue as his instructions were that at least some Western European countries did detain asylum seekers.
  59. Having regard to the various matters referred to above, it would have been possible for the European Court of Human Rights to restrict the ambit of the operation of Article 5(1)(f), insofar as it considered that its terms permitted the Court to do so. We turn to the jurisprudence to see to what extent it supports the respondents' contention that the right to detain recognised by Article 5(1)(f) does not now apply to aliens seeking leave to enter, provided always that they demonstrate that they will comply with such lesser restrictions as may be placed upon them by the immigration authorities. That jurisprudence is sparse. There are two important decisions; the Secretary of State relied on one and the respondents on the other.
  60. In Chahal v United Kingdom (1996) 23 EHRR 413 Chahal alleged that a number of Articles of the Convention had been violated, including Article 5(1). He was a Sikh separatist leader whom the Home Secretary was seeking to deport on the ground that he was a threat to national security. Deportation proceedings were protracted over a period of some five years. During the whole of this period Chahal was held in detention. One of the issues before the Court was whether this deprivation of liberty was permitted under the terms of Article 5(1)(f).
  61. In giving its opinion the Commission made the following statement of principle:
  62. "…the Commission considers that, in principle, the first applicant has been lawfully detained under Article 5(1)(f) of the Convention as a 'person against whom action is being taken with a view to deportation'. It would be unduly narrow to interpret Article 5(1)(f) as confined to cases where the person is detained solely to enable the deportation order to be implemented. The words of the provision are broad enough to cover the case where the person is originally detained with a view to deportation, but challenges that decision or claims asylum, and continues to be detained pending determination of that challenge or claim. The first applicant was detained with a view to deportation in August 1990. The deportation order was made in July 1991. The applicant continues to be detained for the purpose of giving effect to that order. The fact that implementation of the decision to deport was suspended while the Secretary of State considered the asylum request and reconsidered the request after the judicial review proceedings, does not affect the purpose or lawfulness of the detention."
  63. The Commission went on to conclude that the detention was not justified under Article 5(1)(f) because the deportation proceedings had not been pursued, as they should have been, with due expedition.
  64. The Court did not agree with this conclusion. Before considering the facts, it also made observations of principle which are important in the present context:
  65. "The Court recalls that it is not in dispute that Mr Chahal has been detained 'with a view to deportation' within the meaning of Article 5(1)(f). Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5(1)(f) provides a different level of protection from Article 5(1)(c).
    Indeed, all that is required under this provision is that 'action is being taken with a view to deportation'. It is therefore immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law.
    The Court recalls, however, that any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f)"
  66. The Court, after considering the facts, concluded that the domestic procedures had been conducted with due diligence. It went on to observe, however:
  67. "It also falls to the Court to examine whether Mr Chahal's detention was 'lawful' for the purposes of Article 5(1)(f), with particular reference to the safeguards provided by the national system.
    Where the 'lawfulness' of detention is in issue, including the question whether 'a procedure prescribed by law' has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness.
    There is no doubt that Mr Chahal's detention was lawful under national law and was effected 'in accordance with a procedure prescribed by law'. However, in view of the extremely long period during which Mr Chahal has been detained, it is also necessary to consider whether there existed sufficient guarantees against arbitrariness."
  68. The Court went on to consider evidence relating to the question of whether Chahal was, indeed, a risk to national security and concluded that:
  69. "…there were at least prima facie grounds for believing that if Mr Chahal were at liberty, national security would be put at risk and thus, that the executive had not acted arbitrarily when it ordered him to be kept in detention."
  70. We would make the following observations about this decision. First, it is inconsistent with any contention that the justification for detaining a person with a view to deportation is that this is necessary to prevent absconding or other misbehaviour. Secondly it demonstrates that detention with a view to deportation can only be justified if the deportation proceedings are pursued with due diligence. Thirdly it suggests that, even where deportation proceedings are proceeding with due diligence, if they continue for an exceptional length of time some justification for detention needs to be advanced if the detention is not to constitute arbitrary treatment.
  71. Chahal involved consideration of the second limb of Article 5(1)(f) - detention with a view to deportation. It was referred to by the Commission in Ali v Switzerland (1998) 28 EHRR 304 at 310 to support the proposition that:
  72. "The Commission recalls that Article 5(1) of the Convention requires only that 'action is being taken with a view to deportation'. It is therefore immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law."
  73. In that case the deportation order that had been made could not be enforced and the Commission decided that in those circumstances detention could not be considered to be of a person "against whom action is being taken with a view to deportation".
  74. The Attorney General argued that a general principle was to be derived from Chahal that was applicable to the whole of Article 5(1)(f). This was that detention did not have to be necessary for the particular process that was in train, whether this was consideration of an application for leave to enter or deportation. Provided that the process was being pursued with due diligence and was not proving unduly protracted, detention could be justified. He argued that it would be quite extraordinary if detention could be justified where a deportation order was made before an application was made for asylum, but not where the deportation order would follow as a matter of course if the asylum application failed.
  75. Mr Scannell argued that a different approach applied where applicants had asked for asylum against whom there was no order for deportation. That approach he suggested was demonstrated by the decision in Amuur v France (1992) 22 EHRR 533. In that case, asylum seekers from Somalia were held in the international zone of Paris-Orly airport and a nearby hotel for 20 days. No impediment was placed in the way of their leaving the country, but they did not do so and were finally deported to Syria, having been refused leave to enter France. The restraints to which they were subjected were contrary to French domestic law. France was thus not in a position to contend that this was 'lawful' detention under Article 5(1)(f). France argued, however, that because the applicants were free to leave the country, they had not been deprived of their liberty.
  76. The Court concluded that:
  77. "…holding the applicants in the transit zone of Paris-Orly Airport was equivalent in practice, in view of the restrictions suffered, to a deprivation of liberty. Article 5(1) is therefore applicable to the case"
  78. The restrictions referred to included being placed under strict and constant police surveillance, having no legal and social assistance - particularly with a view to completing the formalities relating to an application for political refugee status - and no court review of the length of or necessity for their confinement.
  79. In the course of considering whether the applicants had experienced deprivation of liberty, the Court said this:
  80. "In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation, and account must be taken of the whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.
    Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States' legitimate concern to foil the increasingly frequent attempts to get round immigration restrictions must not deprive asylum seekers of the protection afforded by these Conventions.
    Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty - inevitable with a view to organising the practical details of the alien's repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country.
    Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum seeker of the right to gain effective access to the procedure for determining refugee status."
  81. Mr Scannell's submissions, and indeed the conclusion of Collins J., turn largely on this passage. Mr Scannell submitted that the Court were equating 'unauthorised entry' in Article 5(1)(f) with 'unlawful immigration' and that 'unlawful immigration' was equivalent to 'getting round immigration restrictions'. Thus, an applicant who was prepared to abide by any restrictions imposed by the immigration authorities could not lawfully be detained pursuant to Article 5(1)(f).
  82. It is not appropriate to treat a passage in a judgment of the European Court as if it were a statutory provision and to resort to minute textual analysis for this purpose. At the same time, it is not easy to derive general principles from a passage that we have found far from clear.
  83. The Court is expressly comparing 'mere restriction on liberty', which does not infringe Article 5, with 'deprivation of liberty', which does. Yet the examples of what constitutes 'mere restriction of liberty' look very like 'lawful detention to prevent unauthorised entry, or while action is being taken with a view to deportation', which is permitted by Article 5(1)(f). It seems to us that the Court contemplates that it will be lawful to confine aliens in a centre of detention pending deportation or in an international zone for the time that is inevitably needed to organise the practical details of the alien's repatriation or while his application for leave to enter the territory in order to be afforded asylum is considered, provided always (1) that confinement is accompanied by suitable safeguards and (2) that it is not prolonged excessively.
  84. It is significant that the Court treats together both detention of the person seeking to enter and detention of the person awaiting deportation. Amuur must be read with the later decision in Chahal. It seems to us that the Court is considering as lawful detention pending the consideration of an application for leave to enter or the making of arrangements for deportation and not applying a test of whether the detention is necessary in order to carry out those processes. The inroad that we believe that the European Court has made into the right of immigration authorities to detain aliens pending consideration of the applications for leave to enter, or their deportation, is that these processes must not be unduly prolonged. It is in relation to the duration of detention that the question of proportionality arises.
  85. Although Collins J. held that detention at Oakington did not fall within Article 5(1)(f) at all, he went on to consider proportionality. In so doing the test that he applied was whether detention was proportionate to the need to process applicants speedily. He decided that it was not because he was not satisfied that it was necessary to achieve that object. We consider that the test of proportionality required by Article 5(1)(f) requires the Court simply to consider whether the process of considering an asylum application, or arranging a deportation, has gone on too long to justify the detention of the person concerned having regard to the conditions in which the person is detained and any special circumstances affecting him or her. Applying that test no disproportionality is demonstrated in this case.
  86. The Secretary of State has determined that, in the absence of special circumstances, it is not reasonable to detain an asylum seeker for longer than about a week, but that a short period of detention can be justified where this will enable speedy determination of his or her application for leave to enter. In restricting detention to such circumstances he may well have gone beyond what the European Court would require. We are content that he should have done so. The vast majority of those seeking asylum are aliens who are not in a position to make good their entitlement to be treated as refugees. We believe, nonetheless that most right thinking people would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is a risk of their absconding or committing other misbehaviour.
  87. We started this judgment by remarking that it was artificial to consider English domestic law and the Human Rights Convention separately. The Human Rights Act has made the Convention part of the constitution of the United Kingdom, but the Convention sets out values which our laws have reflected over centuries. The need, so far as possible, to interpret and give effect to statutory provisions in a matter which is compatible with Convention rights is now a mandatory discipline, but it is not a novel approach.
  88. The policies that have constrained, and still constrain, the exercise of the statutory power to detain aliens who arrive on our shores do not result from any conscious application of Article 5 of the Convention. They result from a recognition, that is part of our heritage, of the fundamental importance of liberty. The deprivation of liberty with which this appeal is concerned falls at the bottom end of the scale of interference with that right. It is right, nonetheless, that its legitimacy should have received strict scrutiny. Our conclusion is that it is lawful. This appeal is, accordingly, allowed.
  89. Order:
  90. Appeal allowed.
  91. No application foe costs.
  92. Detailed assessment of Legally Funded Respondent's costs.
  93. Leave to appeal to the House of Lords granted.
  94. (Order does not form part of the approved judgment)

    Case No: CO/0074/01

    CO/4559/00

    CO/4533/00

    Neutral Citation Number: [2001] EWHC Admin 670

    IN THE HIGH COURT OF JUSTICE

    ADMINISTRATIVE COURT

    Royal Courts of Justice

    Strand,

    London, WC2A 2LL

    Friday 7 September 2001

    B e f o r e :
    The Hon Mr Justice COLLINS
    - - - - - - - - - - - - -

      The Queen on the Application of:  
      Shayan Baram SAADI
    Zhenar Fazi MAGED
    Dilshad Hassan OSMAN &Rizgan MOHAMMED
    Claimants
      - and -  
      Secretary of State for the Home Department Defendant

    - - - - - - - - - - - - -
    (Transcript of the Handed Down Judgment of
    Smith Bernal Reporting Limited, 190 Fleet Street
    London EC4A 2AG
    Tel No: 020 7421 4040, Fax No: 020 7831 8838
    Official Shorthand Writers to the Court)
    - - - - - - - - - - - - -
    Mr Rick SCANNELL & Mr Duran SEDDON (instructed by Wilson & Co. for the Claimants)
    Mr David PANNICK Q.C. (Mr Neil Garnham QC for the Judgment) & Mr Michael FORDHAM (instructed by The Treasury Solicitor for the Secretary of State )
    - - - - - - - - - - - - -
    Judgment
    As Approved by the Court
    Crown Copyright ©

    Mr Justice Collins:

  95. The three claims involving four claimants which have been heard together before me raise the question whether detention at what is called the Oakington Reception Centre is lawful. The claimants are Kurds from Iraq. They arrived in this country in December 2000 and claimed asylum. It was decided that their claims should be considered at Oakington and that therefore they should be detained there for up to 10 days while interviews and other enquiries were made. Each was then released from detention. It was common ground that their release was no bar to the continuation of the judicial review proceedings since the lawfulness of the detention was material to a possible claim for damages and in any event was an issue which needed to be determined.
  96. Powers to detain those seeking entry to or who are to be removed from the United Kingdom are contained in Schedule 2 to the Immigration Act 1971. Paragraph 2 entitles an immigration officer to examine any person arriving in the United Kingdom to determine whether he should be given leave to enter and Paragraph 16(1) provides:-
  97. "A person who may be required to submit to examination under Paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter."

    Paragraphs 8, 9 and 10 enable an immigration officer (or if certain conditions which I need not detail are fulfilled the Secretary of State) to remove those refused leave to enter or illegal entrants and Paragraph 16(2) (as substituted by the Immigration and Asylum Act 1999) provides:-

    "If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of Paragraphs 8 to 10 ...., that person may be detained under the authority of an immigration officer pending -

    (a) a decision whether or not to give such directions;

    (b) his removal in pursuance of such directions."

    Paragraph 21(1) enables an immigration officer to grant temporary admission to the United Kingdom to any person liable to be detained. Section 4 of the 1999 Act (which came into force on 11 November 1999) enables the Secretary of State to provide or arrange for the provision of "facilities for the accommodation of persons" temporarily admitted to the United Kingdom or released from detention or granted bail under the Immigration Acts. And Paragraph 21 has been amended by Paragraph 62 of Schedule 14 to the 1999 Act by the addition of sub-paragraphs (2A) to (2E). Sub-paragraphs (2) to (2E) now read as follows:-

    "(2) So long as a person is at large in the United Kingdom by virtue of this Paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.

    "(2A) The provisions that may be included in restrictions as to residence imposed under sub-paragraph (2) include provisions of such a description as may be prescribed by Regulations made by the Secretary of State.

    ("2B) The Regulations may, among other things, provide for the inclusion of provisions -

    (a) prohibiting residence in one or more particular areas;

    (b) requiring the person concerned to reside in accommodation provided under section 4 of the Immigration and Asylum Act 1999 and prohibiting him from being absent from that accommodation except in accordance with the restrictions imposed on him.

    (2C) The Regulations may provide that a particular description of provision may be imposed only for prescribed purposes.

    (2D) The power to make regulations conferred by this paragraph is exercisible by statutory instrument and includes a power to make different provision for different cases.

    (2E) But no regulations under this paragraph are to be made unless a draft of the Regulations has been laid before Parliament and approved by a resolution of each House. "

    I shall have to consider those powers and their scope in due course.

  98. Before March 2000, when the opening of Oakington was announced, the Home Office policy on the use of detention was set out in a White Paper published in 1998 and entitled:
  99. "Fairer, Faster and Firmer - a Modern Approach to Immigration and Asylum"

    in these terms (Paragraph 12.3):-

    "The Government has decided that, whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances

    - where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release;

    - initially, to clarify a person's identity and the basis of their claim; or where removal is imminent."

    " In particular, where there is a systematic attempt to breach the immigration control, detention is justified wherever one or more of those criteria is satisfied "

    In R v Special Adjudicator and Secretary of State for the Home Department ex p. B [1998] Imm.A.R. 182, Kay J referred to the policy on detention prior to the 1998 White Paper. It was that detention should only be used where there was no alternative and as a last resort. It does not appear that the 1998 White Paper was intended to change that policy. In Paragraph 12.11 it was made clear that detention should be for the shortest possible time and Paragraph 12.7 required that written reasons should be given at the time of the detention. Thus, prior to the Oakington regime, detention was in effect to be limited to those cases where there was a concern that the individual might abscond or otherwise fail to comply with any terms of temporary admission, where there was a need to discover what was an individual's true identity, (for example, where false documents were presented) or where removal was imminent.

  100. On 16 March 2000 the Minister (Mrs Barbara Roche) announced a change in a written answer to a parliamentary question. She said this:-
  101. "Oakington Reception Centre will strengthen our ability to deal quickly with asylum applications, many of which prove to be unfounded. In addition to the existing detention criteria, applicants will be detained at Oakington where it appears that their application can be decided quickly, including those which may be certified as manifestly unfounded. Oakington will consider applications from adults and families with children, for whom separate accommodation is being provided, but not from unaccompanied minors. Detention will initially be for a period of about seven days to enable applicants to be interviewed and an initial decision to be made. Legal advice will be available on site.

    If the claim cannot be decided in that period, the applicant will be granted temporary admission or, if necessary in line with existing criteria, moved to another place of detention. If the claim is refused, a decision about further detention will similarly be made in accordance with existing criteria. Thus, detention in this latter category of cases will normally be to effect removal or where it has become apparent that the person will fail to keep in contact with the Immigration Service."

    In a statement which has been put before me on behalf of the Secretary of State, Mr. Ian Martin, an inspector in the Immigration and Nationality Directorate in the Home Office, has explained what he describes as the thinking behind Oakington in these terms (Paragraph 10):-

    "This was to be a centre at which asylum applications would be decided quickly, within about seven days. In order to achieve that objective for significant numbers of Applicants, an intensive consideration and decision process was required. In particular, it was considered essential that Applicants should be available for an early interview and to submit any further representations that may be judged necessary. It was also considered important that they should be readily available for the decision to be served. The Home Office's experience is that many Applicants, particularly those whose applications are likely to be unfounded, are unwilling to comply with fast-track asylum procedures. In the Government's view, the aim of considering and deciding asylum claims within about seven days for substantial numbers of Applicants were best achieved by requiring Applicants to reside at Oakington, under existing immigration detention powers."

  102. It is thus apparent that a decision to detain at Oakington is not based on any considerations whether the Applicant in question may abscond or otherwise fail to comply with terms of temporary admission. Indeed, the overriding or, as Mr. Martin puts it, the governing criterion is whether the claim appears capable of being decided quickly. To assist immigration officers in deciding on suitability, a list of nationalities has been drawn up which can justify consideration at Oakington because they are expected to be simple to deal with. Those lists are amended from time to time and in some cases they are limited to particular individuals within certain nationalities. Asylum seekers from Iraq are included, but the description in the list reads as follows:-
  103. "Iraq - must speak Sorani, only Kurds from autonomous area, usually from Suleymaniya, Dohuk and Irbil and their provinces but please phone for further advice."

    In a letter of 19 October 2000 to the Refugee Legal Centre (RLC), the Home Office approach to Kurds from Iraq was explained in these terms:-

    "As you know, it has been decided to process through Oakington ... those Iraqi asylum applicants whose claims appear straightforward i.e. Kurds from the Kurdish Autonomous Area in Northern Iraq who claim they are at risk because of their membership of one of the Kurdish political parties."

    This was part of a correspondence in which the RLC were asserting that Iraqi Kurds were not simple cases and should not therefore qualify for consideration at Oakington.

  104. The guidance on suitable cases for Oakington as might be expected identifies those which are to be regarded as unsuitable. Those are:-
  105. "+ any case which does not appear to be one in which a quick decision can be reached.

    + any case, which has complicating factors, or issues, which are unlikely to be resolved within the constraints of the Oakington process model.

    + age dispute cases, other than those where there is clear and irrefutable documentary evidence that the applicant is aged over 18 years.

    + disabled applicants, save but the most easily manageable.

    + any person who has special medical needs, save but those which can be managed within a GP surgery environment.

    + any person who gives reason to believe that they might not be suitable for the relaxed Oakington regime.

    + any person whose detention would be contrary to published detention criteria.

    Apart from the final category, there may be very good reasons for accommodating someone who falls into one of the unsuitable categories from time to time and this document should be considered merely as a statement of intent."

    The 'published detention criteria' are set out in Paragraph 38.8 of the Operational Enforcement Manual. They include persons "where there is independent evidence that they have been tortured". In addition, at Paragraph 38.3.1 Oakington is specifically referred to and the list of those unsuitable for it is set out. There is a significant qualification to the penultimate entry in the list to which I have already referred. In 38.3.1 this reads:-

    "any person who gives reason to believe that they might not be suitable for the relaxed Oakington regime, including those who are considered likely to abscond."

  106. It is therefore clear that detention at Oakington is based on two criteria only. First, is the applicant a national of a country and, if so, does he have the relevant characteristics (if any) which show that his claim is likely to be able to be dealt with quickly and, more particularly, within the 7 to 10 day timescales allowed for? Secondly, is there any reason why he is otherwise unsuitable for detention at Oakington? Not only are the pre-existing criteria for detention irrelevant but they are a contra-indication. Someone who may abscond would not be suitable. This has led Mr. Scannell to submit that detention at Oakington is for administrative convenience. It is desirable that the applicant be available for interview and to answer any subsequent queries and that can best be achieved by detaining him to ensure his presence. It is also desirable that he should have access to proper advice and representatives and that is also provided for at Oakington through the RLC and the Immigration Advisory Service. In addition, interpreters are available at all material times. The justification is expressed by Mr. Martin in these terms:-
  107. "In this way, the Oakington procedure is intended to help facilitate the entry into the United Kingdom of those who are entitled to do so and to prevent the entry (and facilitate the removal) of those who are not entitled to enter and would be making an unauthorised entry."

  108. I am bound to say that I have considerable sympathy with Mr. Scannell's submission. The detention of the individual is not because he has done anything which might usually be considered as a justification for depriving him of his liberty but because his application can more easily be dealt with speedily and so the rate of disposal generally can be improved. As long ago as 1943 Lord Atkin observed that convenience and justice were often not on speaking terms (see GMC v Spackman [1943] 2 All E.R. 357). However, even if the detention is dictated by an administrative convenience, it may still be lawful, particularly if the advantages to immigration control and decision making in general can be regarded as a proper justification for it. Mr. Pannick, Q.C., does not accept that it is proper to regard the Oakington regime as detention for administrative convenience. In any event, he suggests that to try to label it is unhelpful. I must look to see whether the power that undoubtedly exists is being used for a proper purpose. If it is, the immigration officers can decide, guided by the Secretary of State, when it is to be used. The purpose is set out in Paragraph 16 of Schedule 2 to the 1971 Act. It is undoubtedly being used for that purpose. Thus, whatever pejorative descriptions may be used, detention is lawful, certainly in terms of domestic law without considering the impact of the European Convention on Human Rights.
  109. Before going further, I should deal with the circumstances of the claimants before me. The material facts in each case can be stated shortly.
  110. (i) Dr. Saadi

    Shayan Saadi is a doctor of medicine. He arrived at Heathrow on 30 December 2000 and immediately claimed asylum. His claim was based on the contention that he had worked for the Iraqi Workers Communist Party and, in the course of his duties at a hospital, he had treated three members of that party who had been injured in an attack by the Patriotic Union of Kurdistan. This had resulted in his arrest and detention by the PUK and had led to his decision to flee. The documents produced show that the immigration officer dealing with his claim contacted Oakington, since his claim appeared to qualify, and Oakington agreed to take him, but there was no room for him there until 2 January 2001. He was therefore granted temporary admission until then, when he was detained and taken to Oakington. Following an interview, his asylum claim was refused on 8 January and on 9 January he was granted temporary admission. On 5 January, the RLC wrote to IND requesting his release on the ground that his detention was unlawful. The main matter relied on, which I shall deal with when I have recited the facts of all the claims, was that Iraqi Kurds should not be dealt with at Oakington because their applications could not properly be regarded as simple.

    (ii) Zhenar Maged

    Mr. Maged arrived at Dover on 6 December 2000. He was found hiding in a lorry together with a number of other illegal entrants. He claimed asylum on the basis that he had acted against the interests of the PUK, of which he was a member, and so feared persecution by them. He was dealt with at Oakington and on 16 December 2000 his claim was refused. On 9 December the RLC wrote requesting his release and reasons for his detention in much the same terms as in the case of Dr. Saadi. He has been granted temporary admission.

    (iii) Dilshad Osman

    Mr. Osman arrived hidden in a lorry with four others at Dover on 4 December 2000. He claimed asylum at Croydon where he may have been referred by the authorities at Dover. It is not entirely clear on the evidence how he came to apply at Croydon rather than at Dover. In any event, he was referred to Oakington and his claim was based on the contention that he was a PUK activist who lived in Makhwar, a town under Iraqi government administration. His application was refused on 11 December 2000 and he was granted temporary admission on 12 December. On 7 December the RLC wrote a letter requesting his release (and that of his fellow claimant Mohammed) in similar terms to those in the other cases.

    (iv) Rizgan Mohammed

    Mr. Mohammed arrived hidden in a lorry on the same day as Mr. Osman. His application for asylum was based on fear of persecution by the Islamic Movement of Iraqi Kurdistan which he, as a member, was suspected of having in some way betrayed. He says he claimed asylum at Dover but was referred to Croydon because no interpreter was available. His claim was dealt with at Oakington and was refused on 11 December 2000. He was granted temporary admission on 12 December. The RLC letter requesting his release was in similar terms to those in the other cases.

  111. It is to be noted that Messrs Maged, Osman and Mohammed were all illegal entrants who, but for their asylum claims, would have been removed as such. Dr. Saadi on the other hand arrived openly at Heathrow and sought leave to enter as a refugee. The distinction may be important when I come to consider the impact of Article 5 of the European Convention on Human Rights.
  112. One complaint which has been made in each of these cases is that none of the claimants was told why he was being detained. I have already mentioned the requirement that written reasons should be given at the time of the detention. A form IS91R headed 'Reasons for Detention and Bail Rights' is provided to immigration officers. It must be filled out and handed to the person who is to be detained. At the material time, it stated that detention was being ordered under powers contained in the Immigration Acts and continued:-
  113. "Detention is only used when there is no reasonable alternative available. It has been decided that you should remain in detention because ..."

    There then follow five reasons (a to e) against which are boxes which should be ticked. The five reasons are:-

    a. You are likely to abscond if given temporary admission or release.
    b. There is insufficient reliable information to decide on whether to grant you temporary admission or release.
    c. Your removal from the United Kingdom is imminent.
    d. You need to be detained whilst alternative arrangements are made for your case.
    e. Your release is not considered conducive to the public good.

    The form continues:-

    "This decision has been reached on the basis of the following factors ..."

    There are then thirteen factors with boxes to be ticked if a particular one applies. They include the absence of "enough close ties to make it likely that you will stay in one place", a previous failure to comply with conditions or a previous absconding, a use of deception, a failure to give satisfactory answers to an immigration officer, a failure to produce satisfactory evidence of identity, nationality or lawful basis to be in the United Kingdom and unsatisfactory character, conduct or associations. I have referred to all those that could conceivably be relevant in the circumstances of cases such as those which are before me.

  114. Mr. Martin says that a 'structural problem' arose during 2000 regarding the content of the form IS91R 'concerning the options of its language to cover Oakington detention'. It apparently took the Home Office 3 months to realise that the wording was clearly not appropriate for Oakington detention which depended on nothing more than that the individual in question came from a country on the relevant list because his claim could, it was believed, be processed quickly. So on 7 June 2000 it was said in the General Orders to Immigration Officers:-
  115. "We are currently reviewing the IS91R reasons for detention form. The revised form, which will be issued shortly, will take account of the revised Oakington criteria."

    Nothing seems to have been done since the Enforcement Manual records on 21 December 2000 that the form was currently being revised and that the revised version would be issued shortly. When Mr. Martin made his statement on 12 April 2001, the form had still not been revised, but an addendum had been attached with effect from 2 February 2001 which reads:-

    "Reason for Detention
    I have decided that you should be detained because I am satisfied that your application may be decided quickly using the fast track procedures established at Oakington Reception Centre.
    In reaching this decision I have taken into account that, on initial consideration, it appears that your application may be one which can be decided quickly."
  116. It is, says Mr. Martin, a matter of regret that the form lagged behind the change in policy. I would use much stronger language. It is a disgrace. To include the Oakington reason for detention would have been simple and why it took nearly 11 months to produce the addendum is difficult to understand. The result was that immigration officers had to give the detainee information which may well have been inaccurate. Mr. Martin says this:-
  117. " ... the existing version of the form was the only one available to the immigration officers who dealt with these claimants. No doubt this will have presented a dilemma to officers. Given the availability of Oakington and the known criteria as to suitability, I strongly suspect that the old form IS91R was being used by ticking boxes which were considered to be present as additional factors in a case, or at least were the closest fit from a range of choices which did not readily encompass the new Oakington policy."

    The form clearly indicated that detention was only used where there was no reasonable alternative. All the reasons and factors reflect some possible misconduct by the detainee or the need for him to be cared for by detention. As Mr. Martin concedes, it was wholly inappropriate for Oakington detention and it is for example, difficult to follow what reason could conceivably have been close to fitting Dr. Saadi's case. Unfortunately, the copy of the IS91R which should have been retained on the file has disappeared and so I do not know, nor does Dr. Saadi, why it was said he should be detained.

  118. The vice of this is that reasons will be on file which are not accurate. The applicant may be branded as a possible absconder or be said to have committed some other misdemeanour and this will be on his file and may be held against him in future. Furthermore, the law requires that a person be informed why he is being detained and the information must be accurate.
  119. As I have said, Dr. Saadi's IS91R is missing. In Mr. Maged's case, none of the boxes a to e is ticked, but box 6 of the factors upon which the decision has been reached, which reads "You have not produced satisfactory evidence of your identity, nationality or lawful basis in the U.K." has been ticked. That is said to have been appropriate, but it was not the reason why detention was ordered and we do not know what oral explanation was given to Mr. Maged. In Mr. Osman's case, the immigration officer has ticked boxes a and b and relied on lack of close ties, use of deception and failure to produce satisfactory evidence of identity etc. In Mr. Mohammed's case, only box b has been ticked and the factors relied on are use of deception and failure to produce satisfactory evidence of identity etc. The answer to the RLC's letters of 7 December states:-
  120. "Your client has been detained at Oakington on the basis of this restatement of detention criteria at Oakington Reception Centre. The determining officer concluded that it appeared that your client's application could be decided quickly on the basis of various factors including your client's nationality. The fact that your client's individual circumstances were considered by the determining officer in reaching his decision to detain in accordance with current detention policy indicates that all relevant factors were taken into account."

    Mr. Martin accepts that there is a 'tension' between what is said in the letter and the IS91R.

  121. The use of inappropriate forms and the giving of reasons for detention on those forms which may not have been wholly accurate do not affect the lawfulness of the detention. The real reason was the new Oakington process. If that was lawful, the disgraceful failure to prepare proper forms cannot render it unlawful. In any event, it may be that in the cases of the illegal entrants the immigration officers could properly rely on at least the absence of identification and the clandestine entry as factors justifying detention even if, had Oakington not been used, temporary admission would have been granted. I do not need to go into the matter further since Mr Scannell has not sought to argue that the muddle about reasons renders the detentions unlawful.
  122. It was suggested that to regard Iraqi Kurds as appropriate to be dealt with at Oakington was wrong. Reliance was placed on a UNHCR letter of 27 November 2000 which indicated that the volatile political climate and shifting alliances in Northern Iraq made the assumption that the KDP and the PUK could provide protection in their respective areas unsustainable. The letter assumed that Oakington was to be used where claims were likely to be decided to be manifestly unfounded. That assumption was incorrect; indeed, none of the claimants' applications has been regarded as manifestly unfounded. Naturally, some applications will be referred to Oakington because it is believed that they are manifestly unfounded. Such cases can often be dealt with quickly. The Home Office has explained why it believed that Kurds from northern Iraq could often be processed quickly. I do not think that Mr. Scannell has come anywhere near establishing that that view was irrational. The fact that a claim can be and is processed speedily does not mean that it is not properly considered. All claims should be processed as quickly as possible and all that is being done at Oakington is to choose those which seem likely to be able to be processed more quickly than others.
  123. .Complaint has been made that the screening process is inadequate so that some who should not be detained (for example, because they have suffered torture in the past) may be. At an early stage, (usually on the second day) the detainee is seen by a legal representative. If anything is then raised which shows that he should not be detained, it can be put to the authorities and release should follow. If it does not, an immediate application for habeas corpus can be made. In any event, Mr. Martin has indicated that suitability is kept under review and the instructions are that anyone who turns out to be unsuitable should not be kept at Oakington.
  124. Mr. Scannell has submitted that detention is arbitrary because, due to the limited numbers that can be accommodated, it is a matter of chance whether an individual goes to detention at Oakington or gets temporary admission to have his application dealt with in a different fashion. The criteria for admission to Oakington are not themselves arbitrary. Certain nationalities are listed because and only because the view has been taken that they are likely to be able to be processed quickly. Thus any discrimination is not unlawful, since the decision that nationality should be adopted as a criterion is objectively justifiable. The fact that there is limited room at Oakington cannot create arbitrariness. To suggest that a regime such as Oakington cannot be instituted until there is room for all those who might qualify is absurd.
  125. .Mr. Scannell has submitted that the powers to detain contained in the 1971 Act require that individual consideration be given to each detainee's circumstances and that a person be detained only if it is reasonably necessary to detain him. The desirability of speedy decision making cannot itself justify detention, at least unless detention is the only possible means of achieving the purpose of making a decision on an asylum claim. Thus in effect the criteria for detention set out in the 1998 White Paper must govern the lawfulness of detention. Further, detention must be only for as long as is necessary to achieve the relevant purpose. That last submission is uncontroversial: as Mr. Pannick says, it is unarguable that seven to ten days is excessive to consider an application for asylum.
  126. .Mr. Scannell has relied on Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, a decision of the Privy Council on appeal from Hong Kong. That case involved a claim by Vietnamese Boat People that their detention 'for several years' pending removal from Hong Kong was unlawful. The relevant statute permitted detention pending removal. It was not argued that there was a limit on the power so that only those who might otherwise abscond or otherwise misbehave if allowed their liberty could be detained. The appeal was based on the contention that the power was limited to circumstances where removal could be achieved within a reasonable time. Reliance was placed on a decision of Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. At page 111A - E Lord Browne-Wilkinson, giving the judgment of the Committee, said this:-
  127. "Section 13D(1) confers a power to detain a Vietnamese migrant "pending his removal from Hong Kong." Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such a power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain "pending removal" their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.
    Although these restrictions are to be implied where a statute confers simply a power to detain "pending removal" without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships' view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances".
  128. .There is no doubt that the powers contained in the Immigration Act 1971 to detain must be strictly construed. But there is in my judgment no reason to limit the power in the way Mr. Scannell submits. The purpose is clearly set out in Paragraph 16(1) and (2). In particular, Paragraph 16(1) enables a person to be detained 'pending a decision to give or refuse him leave to enter'. That is the purpose for which Dr. Saadi was detained and that and the possible use of Paragraph 16(2) justified the detention of the other claimants. Neither Hardial Singh nor Ten Te Lam is authority for the proposition that such powers can only be used where it is necessary to use them because otherwise, for example, the applicant might abscond. The only limitation is that it must be for a reasonable time. Lord Browne-Wilkinson's reference to unreasonable circumstances at the end of the passage cited was I believe intended to cover a situation where, for example, the purpose could not be achieved at the time of the detention within a reasonably foreseeable period or where the individual circumstances of a person made a decision to detain him unreasonable. So in the context of the cases before me it would be unreasonable to detain someone who was unsuitable for detention. I accept Mr. Pannick's submission that, provided the power is (as is the case here) being used for a purpose permitted by the statute, it is for the Secretary of State to decide (subject to rationality) on the circumstances in which it should be used. It would have been open to Parliament to put specific limits on the power to detain (as has been done obliquely in the Bail Act). It has not done so in the Immigration Act.
  129. Mr. Scannell has relied on R v Secretary of State for the Home Department ex parte Brezinski & Glowacka (Unreported: 19 July 1996). But that case was heard at a time when the policy was to use detention only as a last resort. In that case (at page 6 of the transcript before me) Kay J said this:-
  130. "It seems to me that this is at the very heart of the decision-making process in cases such as these. It is, one adds, not very different from the sort of approach that is clearly employed and properly employed by those who have to consider bail in other contexts. One weighs all the various factors. One only restricts a person's liberty if it is essential to do so and one judges that by having regard to all the factors that are properly to be considered in their particular case."

    This cannot be used to set a general approach to detention in all cases. Apart from Oakington cases where there are reasons to detain to achieve a speedy decision, the policy of last resort must very properly prevail, but those observations cannot apply where there is a statutory purpose behind the detention. It suffices that the Secretary of State reasonably regarded it to be necessary to detain to enable those cases to be dealt with speedily. In Secretary of State for the Home Department v Khan [1995] Imm A.R. 348 the Court of Appeal was concerned with the detention of illegal entrants who had claimed asylum and had been served with notices that removal was proposed. In the meantime, they were detained under Paragraph 16(2). Mr. Pannick, who appeared for the Secretary of State in that case, argued that the claims for asylum did not prevent Paragraph 16(2) applying: they merely protracted the period during which detention could properly be ordered. That argument was accepted. But in giving judgment, Leggatt LJ said (page 334):-

    "Although the immigration officer intends to give directions for the removal of the respondents, he cannot do so pending the Secretary of State's determination of their applications for asylum. Since there is reason to fear that unless detained they may abscond, pending the giving of directions, and indeed pending their removal, the respondents are detained".

    The matters which arise in these claims were not relevant nor were they argued and I do not regard these observations as authority for the general proposition put forward by Mr. Scannell. In any event, at that time the Secretary of State's own criteria would have prevented detention unless there was a danger that the individuals in question would abscond.

  131. It seems to me that the detention of the claimants was lawful in that it was permitted by the provisions of the Immigration Act 1971 as amended. The remaining question to be answered, and the one which is of fundamental importance, is whether the Human Rights Act 1998 and the application of Article 5 of the European Convention on Human Rights renders the detention unlawful. Mr. Pannick submitted that that was the only real issue in the cases. I agree.
  132. Article 5, so far as material, reads as follows:-
  133. "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.
    4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

    It is to be noted that Article 5.4 is not dealing with bail. In Zamir v United Kingdom (1983) 40 D.R. 42 at page 59 (Paragraph 109) the Commission said:-

    " ... this right [sc. Under Article 5.4] must be seen as independent of the possibility of applying to a court for release on bail. In any event, the Commission observes that the applicant's solicitor asked the Home Office that the applicant be released in a letter dated 11 October 1978 and, further, requested that the applicant be admitted to bail in the application for habeas corpus ...".

    And in Chahal v United Kingdom (1996) 23 EHRR 413 at page 468 (Paragraph 127) the Court said:-

    " ... it is clear that Article 5.4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the 'lawful' detention of a person according to Article 5.1".

    Paragraph 22(1B) of Schedule 2 to the 1971 Act prevents any application for bail being made by a person detained under Paragraph 16(1) pending examination unless seven days have elapsed since the date of his arrival in the United Kingdom. Otherwise, the right to apply for bail is unrestricted and Article 5.4 is met by the right to apply for habeas corpus or judicial review of the lawfulness of the detention. And once any examination is concluded (which will normally be on Day 5) bail can in all cases, at least in theory, be applied for.

  134. The question is whether the detention at Oakington is permitted by Article 5.1(f). The Conditions set out in Article 5.1 are designed to ensure that there can be no arbitrary deprivation of liberty and must be given a narrow interpretation: see Winterwerp v Netherlands (1979) 2 EHRR 387 at page 401 (Paragraph 37). In NC v Italy (11 January 2001: case No. 24952/94) the Court stated that it did not suffice that the deprivation of liberty was executed in conformity with national law; it must also be necessary in the circumstances (see Paragraph 41 of the Court's judgment). Tomasi v France (1992) 15 E.H.R.R. 1 concerned the detention of the applicant for four years and seven months before his eventual acquittal on serious charges. A risk of absconding was relied on to justify at least part of the detention. On page 52 at Paragraph 98 the court pointed out that there had been a failure to give reasons why the risk was decisive and to counter any risk by measures such as lodging securities or keeping the applicant under court supervision. The Court in these cases is indicating that measures short of detention must be considered and rejected before detention can be justified even if the conditions in Article 5.1 permitting detention appear to be met. Otherwise, the detention would not be lawful. But these cases do not necessarily help Mr. Scannell since they were not concerned with Article 5.1(f) to which different considerations apply as will become apparent.
  135. .The European Convention on Human Rights is of course an international document aimed at countries with differing systems of law. Thus it cannot be construed like an English statute even though it is incorporated into domestic law by way of a Schedule to the Human Rights Act 1998. But the words have been carefully chosen and effect must be given to them and to the purpose which dictated their use. Thus it is clear that 5.1(f) is looking at two different stages. The first part is concerned with the control of those who are seeking to enter a state and the second with those whom a state is seeking to remove. Thus the reference to the prevention of an unauthorised entry must in my view cover a person who seeks leave to remain as well as one who is seeking leave to enter. Equally action may include the making of investigations to see whether removal should follow.
  136. It is clear from Chahal v United Kingdom (supra) that detention with a view to removal can be justified under Article 5.1(f) even though there is no danger of absconding. In Paragraphs 112 and 113 the Court said this (at page 464):-
  137. "112. The Court recalls that it is not in dispute that Mr. Chahal has been detained 'with a view to deportation' within the meaning of Article 5.1(f). Article 5.1(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence of fleeing; in this respect Article 5.1(f) provides a different level of protection from Article 5.1(c).
    Indeed, all that is required under this provision is that 'action is being taken with a view to deportation'. It is therefore immaterial, for the purposes of Article 5.1(f), whether the underlying decision to expel can be justified under national or Convention law.
    113. The Court recalls, however, that any deprivation of liberty under Article 5.1(f) will be only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5.1(f).

    Mr. Chahal had been detained for almost 5 years. Nonetheless, the Court found that there was no breach of Article 5. In R(Sezek) v Secretary of State for the Home Department (25 May 2001 - [2001] All E.R. (D) 336), the Court of Appeal adopted the same approach. In Paragraph 13 of his judgment, Peter Gibson LJ said:-

    "From the right to liberty and security is expressly excepted the case of a person against whom action is being taken with a view to deportation. Article 5.1(f) has been construed strictly, as the jurisprudence relating to that provision demonstrates ... There is nothing in the Convention nor any authority to support [counsel's] assertion that Mr. Sezek's detention is incompatible with Article 5.1(f) if other ways of preventing him absconding are available".
  138. Amuur v France (1992) 22 E.H.R.R. 533 concerned the first part of Article 5.1(f). The applicants arrived at Orly airport and claimed asylum. They were held at the airport and a nearby hotel, part of which had been converted to be used as a holding area, for 20 days and then, following refusal of leave to enter, removed to Syria, via which they had travelled to France. The Court unsurprisingly decided that they had been deprived of liberty and so fell within the protection of Article 5 and that the failure to allow access to legal or other advice for 15 days made the deprivation of liberty not compatible with Article 5.1. In Paragraph 43 on page 556 the Court said this:-
  139. "Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention ... and the ECHR. States' legitimate concerns to foil the increasingly frequent attempts to get round immigration restrictions must not deprive asylum seekers of the protection afforded by those Conventions".
  140. It is clear that the detention of a person seeking entry and falling within the first part of Article 5.1(f) must be to prevent that person effecting an unauthorised entry. The language of Article 5.1(f) makes that clear. Thus detention cannot be justified on the ground that it may speed up the process of determination of applications generally and so may assist other applicants. Equally, it is plain that detention cannot be justified on the basis that it might deter others from seeking to enter by making false claims for asylum. Indeed, Mr. Pannick did not seek to suggest that any such policy could be lawful. It would clearly not be lawful. But he does submit that because without a favourable decision on the asylum claim entry cannot be authorised detention is justified. The investigation will prevent an unauthorised entry and so detention as part of the process is permissible. I cannot accept that submission. It flies in the face of any sensible reading of Article 5.1(f) and is in my view incompatible with the approach of the court in Amuur in the passage cited in Paragraph 28 above. Once it is accepted that an applicant has made a proper application for asylum and there is no risk that he will abscond or otherwise misbehave, it is impossible to see how it could reasonably be said that he needs to be detained to prevent his effecting an unauthorised entry. He is doing all that he should to ensure that he can make an authorised entry. If his application is refused, further consideration may be given to whether he should be detained under the second part of Article 5.1(f), but the fact that all these claimants were then granted temporary admission underlines the reality that there was considered to be no danger of any of them effecting an unauthorised entry.
  141. Mr. Pannick then submits that they are properly to be regarded as covered by the second part of Article 5.1(f) because they will be removed unless their asylum claims are allowed. A person who arrives and seeks leave to enter cannot properly be regarded as someone 'against whom action is being taken with a view to deportation' (in this context, deportation merely means removal). Even if action is extended to include investigation, the investigation is to see whether he should be permitted to enter. In any event, it is not compatible with asylum seekers' rights under the Refugee Convention to regard the investigation of claims for asylum in all cases as being action with a view to deportation. The question is not whether they should be removed but whether they should be permitted to enter. Thus there can be no doubt that Dr. Saadi at least did not fall within either part of Article 5.1(f).
  142. It is suggested that illegal entrants are in a different position. Whether or not they are depends on the facts of a particular case. Thus where an illegal entrant is caught and removal is to be effected, a claim for asylum to stop such removal cannot prevent the second part of Article 5.1(f) applying. Equally the same will apply where removal is ordered and that triggers an asylum claim. Chahal was such a case. But it has been recognised that refugees may well be compelled to obtain entry to a safe country by illegal means and such illegal entry should not necessarily be held against them. If a person enters by unlawful means, for example hidden in a lorry, but does so with a view to claiming asylum, and claims asylum on arrival or within such time after arrival as is reasonable, he is not dealt with on the basis that he is to be removed but on the basis that he is applying to enter. That reflects the factual situation in the cases of Messrs Maged, Osman and Mohammed. It was never suggested to them that they were to be removed or that action was being taken with a view to their removal. The action being taken was with a view to determining whether they should be allowed to remain and so to enter. If an illegal entrant only claims asylum when discovered, the situation may be different and the approach of the Court of Appeal in Secretary of State for the Home Department v Khan (supra) may justify detention under the second part of Article 5.1(f).
  143. It is wholly artificial to regard the detention as within the second part of Article 5.1(f). It is not. It is therefore not possible to justify the detention since it does not fall within Article 5.1(f) and is accordingly unlawful.
  144. That conclusion means that it becomes unnecessary to consider whether the detention was arbitrary so as to render it not lawful and so not within Article 5.1(f). However, the matter has been fully argued and, in case these cases go further, I should deal with the point. If the detention is covered by the second part of Article 5.1(f), there will be no question of arbitrariness. So much is clear from Chahal and Sezek. Action with a view to removal justifies detention and the only situation in which such detention will be unlawful is if it is for an unreasonable time or in unreasonable circumstances. Neither consideration applies to these claims.
  145. Mr. Pannick submitted that the same principle must apply to the first part of Article 5.1(f). Once it is established that the detention is covered by either part of Article 5.1(f), no more need be established to show that it is lawful. In order to justify detention under the first part it is necessary to show that it is to prevent the detainee effecting an unlawful entry. If that is the purpose, it is submitted that it is unnecessary to determine whether other means short of detention could achieve that purpose. Under the second part, nothing is to be achieved by the detention; it is justified by action being taken with a view to removal. But under the first part the detention is designed to prevent the detainee effecting an unauthorised entry. This is much closer to Article 5.1(c) and so the approach set out in Tomasi and Winterwerp would seem to be more appropriate. When detention is used to ensure that an individual does or does not do something, it is surely required that it be established that that result cannot reasonably be achieved by means other than detention. Otherwise, the detention could properly be said to be arbitrary and thus to contravene the fundamental objective of Article 5 and the right to liberty.
  146. Thus far I have assumed that Chahal will apply to the detention if the second part of Article 5.1(f) is applicable. But I am not persuaded that Chahal does apply. It is in my judgment necessary to identify the reason for the detention. It is clear that it is in order that there should be speedy decision-making of a substantial number of applications: that indeed is the evidence from Mr. Martin which is before me. The minister said in a news release announcing Oakington's opening:-
  147. "Speeding up the asylum process is a major objective in our reform of the asylum system. People who come to the United Kingdom may be fleeing terrible persecution and it is important that their claims are dealt with swiftly, so that rather than being stuck in an administrative limbo they are able to get on with rebuilding their lives.
    Oakington will enable us to deal quickly with the straightforward asylum claims. It is in everyone's interest that both genuine and unfounded asylum seekers are quickly identified. Genuine asylum seekers can be given the support they need to integrate with society. And those with unfounded claims can be sent home quickly thereby sending a strong signal to others thinking of trying to exploit our asylum system".

    I certainly (and I suspect most people) would not quarrel with the sentiments expressed, although it is perhaps somewhat ironic that none of the claimants can at present be returned to Northern Iraq since there is no means of getting them there except via Baghdad and, for obvious reasons, they cannot be returned there. But, desirable though it is that there should be speedy decisions, that cannot necessarily justify detention. Even assuming that either part of Article 5.1(f) applies the reality is that the claimants were not detained because of that but because of the belief that speedy resolution of their applications could not otherwise be achieved.

  148. Accordingly, as it seems to me, it is necessary to show that detention was indeed required to achieve that purpose. That is because it is clear that none of the claimants would have been detained but for the fact that they qualified for the Oakington fast track procedure and had to be detained to enable that procedure to be carried out. They were not detained because they might otherwise effect an unauthorised entry or because action was being taken with a view to their removal from the United Kingdom. While that may be a justification for a finding that Article 5.1(f) apples (and, for the purposes of this part of my judgment, I am assuming that it is) it was not the reason for or the immediate cause of the detention. That being so, it is in my view, consistently with the right to liberty enshrined in Article 5, necessary to decide whether detention was indeed proportionate. If it was not, it was arbitrary and so not lawful.
  149. I recognise the care which must be exercised before I could consider it proper to intervene and the margin of discretion to be allowed to the Secretary of State as the decision-maker. The principles have been helpfully set out in a very recent decision of the Court of Appeal in Samaroo v Secretary of State for the Home Department (17 July 2001: Case No. C/2801/0030 and 0052). At Paragraph 35, after considering relevant authorities, in particular R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 and R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, Dyson LJ said this:-
  150. "Accordingly, the function of the court in a case as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr. Samaroo's right to respect for his family on the one hand and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State, I have been assisted by the discussion at Paragraph 3.26 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill Q.C. and David Pannick Q.C. are the general editors. They identify the following factors: (a) The nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter; (b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord consideration deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable; (c) The extent to which the court has special expertise, for example in relation to criminal matters; (d) Where the rights claimed are of especial importance, a "high degree of constitutional protection" will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts".

    It is necessary to seek a fair balance between the human rights of the individual and the interests of the community at large. Article 5 defines the circumstances in which deprivation of liberty may be permitted with precision. In some cases, things may have happened (e.g. a conviction by a competent court or action being taken with a view to removal) which justify detention. In such cases, it will be easier to establish that the detention was lawful. In others, detention is to achieve or to prevent something. In such cases, there is a need to show that detention was reasonably required to achieve or to prevent that thing.

  151. I entirely accept that the presence of the applicant, his attendance at interview and his availability both to consult his representative and for any further questioning which may be considered necessary is vital. The system will not otherwise operate successfully. I accept, too, that interviews may frequently for different reasons need to be rescheduled, sometimes at short notice, and so presence at all material times is required. Mr. Martin says that only by detention can that be achieved.
  152. The 1999 Act has conferred the powers (now in sub-paragraphs (2A) to (2E) of Paragraph 21 of Schedule 2 to the 1971 Act) to impose conditions on temporary admission. Conditions are a feature of bail in criminal cases and one such condition may be a condition of residence. So there can be a condition of residence at a true reception centre (rather than the euphemistic and somewhat misleading description of Oakington). There can be a requirement to attend at interview as and when required and a condition that the applicant is available at particular times (for example, during normal working hours). It can be made clear that a failure to co-operate or to abide by the requirements of availability will be likely to result in the rejection of the claim under Paragraph 340 of the Immigration Rules. It will be difficult for an appellant in such circumstances to persuade an adjudicator or the I.A.T. that his claim is well-founded if he failed without excuse (for it would be difficult to establish any excuse) to co-operate.
  153. It is said that if there were no locks applicants would leave (not because they were going to abscond; they would not be at Oakington if there was a concern that they might abscond). They might then not be available: perhaps they would miss the bus or it would be running late. Perhaps their watches might stop. Most applicants would have no resources; they would need none since board and lodging would be provided. It seems to me that in those circumstances they would be unlikely to leave - there would be no incentive to do so. I do not of course suggest that it would be right to require a 24 hour presence: that would be akin to house arrest and might well be regarded as detention. But that is not necessary to achieve the objective of the system.
  154. Mr. Scannell has suggested that in reality detention was decided on because of concerns by those who lived near Oakington that asylum seekers would cause problems if allowed to leave the centre. The local planning authority was consulted in accordance with the system in operation where development by government which does not require formal planning permission is concerned. This culminated in a proposed condition in the following terms:-
  155. "No detainee shall normally be allowed to leave the centre without the provision of transport or an escort although persons granted temporary admission to the United Kingdom from the Centre will normally be offered transport to connect with rail or bus services but may make their own arrangements {Reason: to minimise the risk of prejudicing public order and to allay public concern about the possible effect of significant numbers of strangers without support within the local community]".

    This, it appears, was accepted by the Home Office. It is said that it appears to be inconsistent with the statement made in October 1999, when the Oakington proposal was being publicised, that:-

    "In certain circumstances applicants would be able, with prior approval, to leave without escort for specific purposes and periods".

    Mr. Martin explains that that was intended to deal with such matters as a need for medical attention which could not be provided at the Centre. He draws attention to an answer to a question in Parliament on 3 April 2000 which makes that point. He categorically denies that a concern that local public opinion would not accept anything other then detention played any part in the decision that detention was needed. In the light of that, I do not think it would be right for me to accept that Mr. Scannell's suggestion is correct. Nor should I rely on such public concerns as a reason for finding that detention was proportionate. I should say that both counsel accepted that in considering proportionality I was entitled to rely on matters which supported the Home Office view even if not relied on by them, but I should be very slow to do so.

  156. I recognise that, as Mr Martin has said, ministers have considered whether a use of the power to impose conditions would have achieved the desired result and have decided that it would not. But I have also had put before me extracts from Hansard. In a debate on what is now Section 4 of the 1999 Act on 2 November 1999, Lord Williams of Mostyn, the government spokesman, said this (Column 736):-
  157. "I turn now to the second element of the amendment; it is not about the use of detention or the regime proposed at Oakington. The point of the amendment is to give greater flexibility in the use of temporary admission. We would then be able to develop reception facilities at which those given temporary admission were required to reside but were free to come and go during the day if they wished ... It is not 24-hour detention; it is an intermediate stage ...
    We want to be able to ensure that applicants remain at the accommodation overnight - again, I say this without any doubt that it is a proper thing to say - and to be able to say to them, 'we require you to be present at this designated accommodation at certain times because that is when your interviews will occur'. There is nothing wrong with that. In fact, it is a sensible way to behave. One must apply proportionality in more than one way".

    Why should that not be effective to achieve what Oakington sets out to achieve? Surely measures short of detention should be tried first and detention should be regarded as the last resort.

  158. I have hesitated long before concluding that the arguments put forward by Mr. Pannick based on Mr. Martin's evidence do not persuade me that my view is wrong. I am satisfied that detention is not proportionate. I have, of course, considered all the material put before me and I do not find it necessary to extend this judgment by going into greater detail. Essentially, it boils down to a concern that applicants would leave the centre if there were no locks and therefore their presence for interview or questioning could not be guaranteed. Those concerns seem to me to be based on assumption and speculation rather than on substance.
  159. As I hope will be clear, I am not saying that to detain those who come to this country seeking asylum is necessarily unlawful. It will be very easy to justify detention of illegal entrants, particularly those who have shown that they have single-mindedly set out to get here. Many will have spent what for them and those who supported them were large sums of money to be assisted by agents, who are in reality in the main criminals preying on those who, whether for economic reasons or because they face at worst persecution and at best probably discrimination and certainly a miserable existence, wish to make a life for themselves in this country. Their desire to settle here at all costs may be ample justification for forming the view that if not detained they will effect an unauthorised entry, particularly, of course, if they are not fleeing persecution and so are not likely to succeed in establishing that they are refugees. Equally, I am not saying that no-one detained at Oakington is lawfully detained. In the majority of cases, once the decision is made (often to refuse leave to enter) temporary admission is granted. But it is envisaged that in some cases detention will continue and in those, there would have been reason to detain beyond the need for a speedy decision on their claim for asylum.
  160. .What I have decided is that to be lawful detention must be justified for the individual under Article 5.1(f). Thus the reasons for and the purpose behind a person's detention are all-important. In these cases, the claimants have not been detained because they might otherwise effect an unauthorised entry or because action is being taken to remove them; it is because it is considered necessary to achieve a speedy decision in the interests of the general administration in relation to asylum claims. Indeed, the grant of temporary admission on refusal of the claims at a time when the likelihood of absconding is, one would have thought, greater shows that concerns that an unauthorised entry might otherwise be effected cannot have been the reason for detention. The reason for the detention of each individual is what is important. In these cases, it is to enable there to be speedy determination of their applications. It is that that renders the detentions in these cases unlawful. The same may well apply to many, perhaps most, Oakington cases. But that is because and only because the Home Office has chosen to make it clear that the sole reason why most applicants are detained at Oakington is because of the advantages it provides in ensuring speedy decisions. Otherwise, the applicants would be granted temporary admission and would not be detained.
  161. For the reasons I have given, I am satisfied that the detention of all the claimants was not lawful. I will hear counsel on the appropriate relief to be granted.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1512.html