European Court Finds That UK Immigration Authorities Had Right To Detain an Asylum Applicant

The European Court of Human Rights has found that the UK immigration authorities did not breach an asylum seeker's human rights as guaranteed by the European Convention of Human Rights 1950 by detaining him. However the court found that the applicant's human rights were breached as he was not told the reasons for his detention for 76 hours (Saadi v United Kingdom, 11/7/06).

The applicant is an Iraqi national and claimed asylum as soon as he arrived in the UK on 30 December 2000. He was granted temporary admission and asked to return to the airport the following day. The applicant returned as requested and again was given temporary admission until the next day. When the applicant returned to the airport the following day, he was detained. He was eventually granted refugee status but sought damages for his original detention which he claimed was illegal.

Article 5 of the European Convention of Human Rights guarantees a person's right to liberty and security. It reads;

ARTICLE 5

RIGHT TO LIBERTY AND SECURITY

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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(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.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The UK authorities argued that sub-paragraph (f) of the exceptions to the right to liberty and security entitled the immigration authorities to detain the applicant when he claimed asylum. The applicant argued that to detain a person who did not present a threat to immigration control did not come within the exemption.

The court found that the exception to the right under Article 5 did extend to situations where a person had sought asylum or any other immigration application. The fact that the applicant had claimed asylum did not mean that he had therefore been granted authorised entry. Consequently the applicant?s detention did not breach Article 5(1).

However, the applicant was not told why he was being detained for 76 hours.

Article 5(2) of the Convention states that Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him?. The court found that the 76-hour delay in telling the applicant the reasons for his detention was not prompt and breached the applicant?s rights.

If you require advice on this or any other UK immigration matter, please do not hesitate to contact one of our specialist immigration lawyers and advisors.