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UK found to have violated immigration detainee’s rights protected by article 5 of the ECHR

JN v United Kingdom (App No. 37289/12)

Related Member(s):
Hugh Southey QC
Related Practice Area(s):
Immigration, Asylum and Free Movement, Human Rights
Court:

The applicant argued that the system of immigration detention in the UK lacked the “quality of law”, required by ECHR, art 5(1)(f), as it was not clear and did not provide individuals with foreseeable consequences. In particular, he criticised the absence of fixed-time limits for immigration detention and absence of automatic judicial review of detention periods. He also argued that his detention exceeded that which was reasonably required for the stated purpose of detention, and thus violated his ECHR right.

The government argued that the immigration system was based on the Hardial Singh principles, which produced foreseeable and predictable outcomes, depending on the individual detainee’s circumstances. These principles ensured that detention was not arbitrary, and ensured limitations would exist. The government also denied that automatic judicial oversight of detention was required by art 5(4). Judicial review and bail applications were permitted, and this ensured compliance with the ECHR.

The court considered that the system of immigration in the UK was not contrary to ECHR, art 5(1). It did not think that fixed-time limits for detention pending expulsion or automatic judicial review were required to comply with art 5.

However, the court considered that the applicant’s lengthy detention since 21 March 2005, and the failure of the authorities to take pro-active steps to bring about his deportation from mid-2008 onwards, meant that his detention was not justifiable under art 5(1)(f) from that point onwards. The fact that the applicant refused to return voluntarily could not be seen as a trump card which enabled the Secretary of State to continue to detain him.

The court ordered the payment of €7,500 damages, as well as costs and expenses.

Hugh Southey QC was involved in this case.