Winning the battle but losing the war: ECHR concludes Zimbabwean claimant unlawfully detained but refuses to award damages

In SMM v. THE UNITED KINGDOM – 77450/12 (Judgment : Violation of Article 5 – Right to liberty and security (Article 5-1 – Lawful arrest or detention)) [2017] ECHR 582 (22 June 2017), a Zimbabwean national residing in the UK, complained to the ECHR that his detention from 28 November 2008 to 15 September 2011 was in violation of Article 5  1 (f) of the Convention, was lawful under domestic law and was unreasonable, arbitrary and disproportionate.

 

Even though S.M.M, had been detained for a period of two and half years and  was  considered vulnerable as someone suffering from serious mental health problems, nothing much turned upon  the issues  of the  stay on forced removals to Zimbabwe  that was in place during his period of detention but most importantly,  because of his conduct during the period of detention, the ECHR refused to  afford the applicant any financial compensation  for the  period during which he was found to have been  unlawfully detained.

 

Summary Background

 

S.M.M, a failed asylum seeker at that time, was on 13 August 2007  convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment.

 

On 14 November 2008, he was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers.

 

S.M.M made a second asylum application on 27 March 2008.

 

On 20 February 2009, he was admitted to hospital for a psychiatric assessment and was sectioned for six days after his mental health deteriorated significantly.

 

On 14 January 2011, he submitted his application for permission to apply for judicial review, in which he challenged his continuing detention. S.M.M was refused permission to apply for judicial review on the papers. Permission was also  refused at a renewed oral hearing.  The Court of Appeal also refused permission to appeal the decision of 31 October 2011, finding that the High Court had been correct on every point.

 

As regards the asylum claim, ultimately,  following a series of appeals, on  20 November 2012 the Upper Tribunal allowed his asylum appeal on human rights grounds. On 30 January 2013 the deportation order  that had been  issued was revoked and he was subsequently granted discretionary leave.

 

Applicable United Kingdom Enforcement Instructions and Guidance and non- removal Policy to Zimbabwe

 

The Court noted the following as relevant:

 

  • Chapter 55.10 of the United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance set out the detention policy. Detention should be the exception for those suffering from a serious mental illness, or where there is independent evidence they have been tortured

  • In 2008, the United Kingdom Border Agency aimed to give half of all asylum applicants a decision within one month of application and to give 80 per cent a decision within two months according to “Management of Asylum Applications by the UK Border Agency”, by the Comptroller and Auditor General for the National Audit Office (HC 124 Session 2008-2009 23 January 2009).

  • The Court noted that in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 the Asylum and Immigration Tribunal indicated that those at risk on return to Zimbabwe were not simply those who were seen to be supporters of the Movement for Democratic Change but anyone who could not demonstrate positive support for Zanu-PF or alignment with the regime. Although there had been voluntary removals in 2007, 2008, 2009 and 2010, prior to 14 October 2010 there was a moratorium on enforced removals to Zimbabwe. On 14 October 2010 the policy changed, but the new policy remained in suspense pending the decision of the Upper Tribunal in the case of EM (Zimbabwe) CG [2011] UKUT 98 (IAC). This judgment, which was promulgated on 11 March 2011, found that there had been a well-established and durable change for the better in Zimbabwe since the guidance in RN. On 18 June 2012 the Court of Appeal allowed the claimant’s appeal against this decision and remitted the case to the Tribunal. On 31 January 2013 the Tribunal reconsidered the case and confirmed the country guidance given in EM.

 

The Hardial Singh principles observed

 

The Court observed that in reviewing the continuing legality of immigration detention, the domestic courts apply the principles identified in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and authoritatively summarised by Lord Justice Dyson in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at §§ 46-47 (see J.N. v. the United Kingdom, no. 37289/12, § 33, 19 May 2016):

 

“… the following four principles emerge:

i)  The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii)  The deportee may only be detained for a period that is reasonable in all the circumstances;

iii)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv)  The Secretary of State should act with the reasonable diligence and expedition to effect removal”.

 

Arguments based on absence of fixed time-limits on UK system of immigration detention

 

The Court noted that the applicant’s complaints included a submission that the system of immigration detention in the United Kingdom – in particular, the absence of fixed time-limits and automatic judicial review – does not comply with the “quality-of-law” requirements of Article 5 1(f) of the Convention.

 

The Court stated that in the recent case of J.N. v. the United Kingdom, no. 37289/12, 19 May 2016,  this argument was expressly rejected. In doing so,  the Court had found that, despite the absence of fixed time-limits and/or automatic judicial review, the system of immigration detention was sufficiently accessible, precise and foreseeable in its application because it permitted the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. In considering any such challenge, the domestic courts were required to consider the reasonableness of each individual period of detention based entirely on the particular circumstances of that case, applying a test similar to  that required by Article 5  1 (f) in the context of “arbitrariness” – the Hardial Singh test.

 

The Court concluded that given that S.M.M’s detention had a basis in domestic law, the applicable law was sufficiently accessible, precise and foreseeable, and his complaints concerning the “lawfulness” of his detention were  rejected.

 

 

Areas where the Court was un-persuaded:

 

Court’s reasoning and considerations  were as follows:

 

  • Where an applicant is bringing a challenge under the Hardial Singh principles at the domestic level, it may be presumed, unless the domestic courts expressly indicate otherwise, that he is raising in substance all the arguments that the ECHR Court would consider under Article 5  1 (f) – that included the arguments that the Government failed to act with due diligence and consequently his detention was excessively lengthy.

  • The Hardial Singh principles applied by the United Kingdom courts are almost identical to the test applied by the ECHR under Article 5 1 (f) of the Convention in determining whether or not detention has become “arbitrary”.

  • The Court reiterated that under the sub-paragraphs of Article 5 .1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”- it must conform to the substantive and procedural rules of domestic law.

  • In addition to the requirement of “lawfulness”, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness.

  • The Court further stated that where a person has been detained under Article 5 1 (f), the Court, interpreting the second limb of this sub-paragraph, has held that, as long as a person was being detained with a view to deportation, that is, as long as action was being taken with a view to deportation, Article 5 1 (f) did not demand that detention be reasonably considered necessary, for example, to prevent the individual from committing an offence or fleeing. It was therefore immaterial whether the underlying decision to expel could be justified under national or Convention law.

  • It was noted that the Court held in Chahal that the principle of proportionality applied to detention under Article 5 § 1 (f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held 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”.

  • The Court stated that the domestic courts’ conclusions concerning the S.M.M’s state of mental health and evidence of his torture were factual findings, which were not for the Court to interfere. Mindful of the scope of its review when examining lawfulness under Article 5 . 1, the Court did not find that the applicant had adduced any reason which could require it to diverge from the national courts’ conclusions concerning the applicability of the relevant policy concessions.

  • Given that the applicant’s detention had a basis in domestic law , the applicable law was sufficiently accessible, precise and foreseeable, the applicant’s complaints concerning the “lawfulness” of his detention were rejected.

  • As regards whether the applicant was detained with a view to his deportation, the Court accepted the domestic courts’ conclusions that the Secretary of State was right to find that the applicant’s deportation could be effected within a reasonable period under the third Hardial Singh principle. In this connection, it was noted that commenting on the steps taken by the authorities to ready the applicant for deportation whilst the stay on forced removals to Zimbabwe was in place, when refusing permission to renew the application for judicial review on 28 October 2011, Mr Justice Ouseley considered that: “It is perfectly clear that the resumption of forced removals [after 14 October 2010] would require an effort of engagement with the Zimbabwe authorities to achieve documentation and circumstances for return which would enable them to take place. That was bound to take time, and there is nothing before me to indicate that the prospects of removal were nil or the efforts did not take place.”

  • The principal question for the Court to consider was therefore whether, at any time between 28 November 2008 (when his criminal sentence ended) to 15 September 2011 when he was released, the applicant’s detention could be said to have been “arbitrary”. It was noted that in the present case there was no suggestion that the authorities had at any time acted in “bad faith”. Furthermore, it could not be said that the place and conditions of detention were not appropriate for its purpose. The applicant was assessed as suitable for immigration detention under the relevant policies. The applicant had not provided any reasons which would make it appropriate for the Court now to find that the domestic authorities should have come to different conclusions.

  • The Court noted with some concern that the period of detention under challenge lasted for over two and a half years, during which time the applicant was exercising his right to bring proceedings challenging the decision to deport him, however the Court was satisfied that, in the particular circumstances of the case, the requirements of Article 5 .1 had been met. It was observed that pursuant to the Secretary of State’s published policy on immigration detention, “wherever possible, alternatives to detention should be used”. It was noted that the domestic courts concluded that S.M.M. was detained lawfully under that provision, taking into account the fact that he was a repeat offender who had failed to comply with the conditions of his stay and previously absconded, and did not have close ties in the United Kingdom which might mitigate the risk of him absconding again. Similar conclusions could be found in the decisions rejecting S.M.M.’s bail application. It was noted that the applicant withdrew a later bail application in November 2010. The Court further noted that limited – if any – alternatives to detention were available in the present case. Reporting requirements were generally not considered to be an effective safeguard against a risk of absconding, and electronic tagging was not recommended.

 

How the UK authorities failed to act with “ due diligence”

 

In determining whether the length of detention exceeded that reasonably required for the purpose pursued, the Court  went to ask whether the UK  authorities acted with “due diligence” and reached the following conclusions:

 

  • It could not be overlooked that the applicant’s second asylum application, made on 27 March 2008, (the resolution of which was decisive for his immigration status) was not decided by the Secretary of State until 8 February 2011, just over 2 years and 10 months later. This was a period that appeared significantly longer than necessary, in particular when compared against the stated United Kingdom Border Agency aim to give 80 percent of asylum applications a decision within two months.

  • On the other hand the Court noted that during the two year period from when the applicant began his immigration detention to the resolution of the claim, the authorities were not completely inactive.

  • The Secretary of State should have taken more decisive steps to bring the decision making process swiftly to a close. Whilst the applicant was considered sufficiently well to be detained it was accepted that he had serious mental health problems, making him vulnerable. There was therefore a heightened duty on the authorities to act with “due diligence” in order to ensure that he was detained for the shortest time possible.

  • The Court noted that the applicant, being a vulnerable individual, was detained for a very significant period of time. In respect of the period between 9 November 2009, when the applicant first indicated that he intended to provide a medical report to support his second asylum application and 8 February 2011, when his asylum claim was finally decided the government failed to take any significant initiative towards deciding his claim. Moreover, for the period of just over four months after the deadline for that expert report expired and until the final report was ultimately provided, the Court considered there was a heightened need for the government to process and, ultimately, decide the claim diligently and speedily given the amount of time that the applicant had already been in detention.

  • It was also noted that the UK Government had chosen to put in place a system where there are no fixed time limits on immigration detention. The Court stated that where an applicant is subject to an indeterminate period of detention, the necessity of procedural safeguards becomes decisive. Accordingly, in the context of the present case, the Court considered that the necessity to ensure the effectiveness of the available procedural safeguards meant that there was a particular need for the authorities to act with appropriate due diligence in managing the decision making process and following up the deadline ultimately imposed. By failing to ensure a timeous decision in the applicant’s asylum claim, the domestic authorities also prevented the applicant from challenging that decision sooner before the asylum and immigration tribunals.

  • It was clear that even if the applicant’s actions were contradictory, the responsibility lay with the Secretary of State to ensure that the detention was (and remained) lawful. The applicant was vulnerable and detained for over two and a half years in the context of a legal framework that did not impose time limits on his immigration detention. Accordingly, the Court considered that in the circumstances the UK authorities should have been more diligent in pursuing the applicant’s representatives and following up the provision of the expert evidence, especially after a deadline had been imposed, to ensure the necessary “due diligence”.

  • The Court concluded that the authorities did not act with sufficient “due diligence” from 28 June 2010 until 8 February 2011 when the asylum claim was finally decided; a total period of 7 months and 12 days. 2.  It was held that there had been a violation of Article 5 . 1 of the Convention.

No award of damages due to Applicant’s conduct

 

The applicant had claimed £100,000 in respect of non-pecuniary damage.

 

The Court made it clear that it found that the  UK authorities’ failure to act with due diligence was because they did not manage the applicant’s requests relating to his asylum claim efficiently, including his requests to allow him more time to submit evidence. It was noted  however that  the failure occurred largely because the authorities were allowing the applicant time to make the fullest possible asylum claim, and there was nothing to indicate that they would not have decided his claim sooner and ended his immigration detention sooner, had he produced that evidence earlier as requested. The Court also noted that the applicant withdrew an application for bail thereby depriving the domestic courts of the possibility to consider his release during the relevant period.

 

 

The Court concluded that in light of the applicant’s conduct and having regard to the particular circumstances of the case, they did not consider that it was necessary, in the terms of Article 41 of the Convention, to afford the applicant any financial compensation by way of just satisfaction. The Court accordingly held that the finding of a violation of Article 5  in itself constituted adequate just satisfaction for the purposes of the Convention.

 

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