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FOURTH
SECTION
DECISION
AS
TO THE ADMISSIBILITY OF
Application no.
2134/10
by Naeem Anwar TABASSUM
against
the United Kingdom
The
European Court of Human Rights (Fourth Section),
sitting on 24 January 2012 as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
regard to the above application lodged on 12 January 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Naeem Anwar Tabassum, was born in 1966
and lives in West Drayton. His nationality is in dispute. He
maintains that he is a national of the United Kingdom; the Government
maintain that he is a Pakistani national.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
- The
applicant claims to have been born in the United Kingdom to a British
mother and a Pakistani father, and thus to have British nationality.
He claims that he returned as a young child with his father to
Pakistan, where he lived until he re-entered the United Kingdom in
2000, travelling with both his expired child’s British passport
and his valid Pakistani passport. There is no evidence to support
this account, as he claims that both passports were subsequently
stolen from him.
- In
November 2001, the applicant was convicted for persistently
soliciting a woman for prostitution and fined. He was convicted in
July 2004 of obtaining property by deception, for which he was
sentenced to two years’ imprisonment. He was convicted in May
2005 of soliciting persons for car hire without a licence and driving
whilst uninsured, for which he received a fine. He was convicted in
September 2008 of driving whilst uninsured, for which he was fined
and disqualified from driving for six months. On 19 September, he was
convicted of forgery. He was sentenced to eighteen months’
imprisonment and deportation proceedings against him were initiated.
He was notified of his liability to deportation on 29 October 2008
and did not make any representations in response. Nor did he appeal
against deportation. On 10 December 2008, he was served with a signed
deportation order. At the expiry of his sentence on 12 June 2009, the
applicant was taken into immigration detention pending his
deportation.
- On
1 December 2008, whilst still in prison, the applicant refused to
attend an interview with the High Commission for Pakistan in London
to obtain a travel document. Following a warning, however, he
attended an interview on 23 June 2010. The Pakistani authorities were
not prepared to accept that the applicant was a national of Pakistan;
however, subsequent to the interview, further documentation was sent
to the High Commission by the British authorities in evidence of the
applicant’s connection to Pakistan. Regular reminders have
since been sent by the British authorities and, on 17 June 2011,
a response was received from the High Commission, stating that the
applicant’s national status was required to be verified from
Pakistan.
- The
applicant sought permission to apply for judicial review of the
legality of his detention. Permission was granted and a substantive
hearing was held before the High Court on 15 July 2011. The onus was
on the applicant to prove his claimed British citizenship and the
judge found that, on the evidence before him and having regard to the
applicant’s dishonesty and use of false identities in the past,
he had not done so. He had not established that any of the identities
he had claimed in the past were actually his, or that he had been
born in the United Kingdom to a British mother, as he claimed. Having
failed to prove that he was British, he must be treated as a foreign
criminal, and was thus liable to detention pending his deportation.
The judge was satisfied that the Secretary of State was genuinely
using the power to detain for the purposes of effecting the
applicant’s deportation. While the two-year period of
immigration detention was long, it was not unreasonable, given the
applicant’s insistence that he was British when he was not, and
his failure to disclose sufficient details about his years in
Pakistan to enable the Pakistani authorities to issue him with a
travel document. The judge also accepted the Secretary of State’s
decision that the applicant presented a high risk of absconding and
of committing further offences if granted immigration bail; the fact
that the applicant was failing to cooperate in obtaining a travel
document only reinforced this risk. The key point was that the
obstacles to the applicant’s deportation had been created by
the applicant himself and his failure to give an honest account to
either the British or Pakistani authorities. Given that his claim to
be British had now been examined and rejected by a court, the judge
found that the applicant might now be minded to disclose the
necessary information to the authorities to enable a travel document
to be issued. There was a sufficiently realistic prospect that the
applicant’s deportation would take place within a reasonable
time to render his continued detention lawful.
The
applicant notified the Court on 21 December 2011 that he had been
released from detention. He did not provide any information as to why
he had been released.
B. Relevant domestic law
- Section
3(5)(a) of the Immigration Act 1971 (as amended by the Immigration
and Asylum Act 1999) provides that a person who is not a British
citizen shall be liable to deportation from the United Kingdom if the
Secretary of State deems his deportation to be conducive to the
public good.
- Section
3(8) of the same Act provides that when any question arises as to
whether a person is a British citizen or not, the onus shall be on
the person asserting such citizenship to prove it.
- Paragraph
2 of Schedule 3 of the same Act provides that, where a deportation
order is in force against any person, he may be detained under the
authority of the Secretary of State pending his removal or departure
from the United Kingdom.
- The
Supreme Court recently reaffirmed principles that had been set down
in the case of R. v. Governor of Durham Prison, ex parte Hardial
Singh (1984) 1 WLR 704 regarding the Secretary of State’s
power to detain those whose deportation is pending, in Lumba (WL)
v Secretary of State for the Home Department [2011] UKSC 12. The
principles are as follows: 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 the deportation within a reasonable
period, he should not seek to exercise the power of detention; and
iv) the Secretary of State should act with reasonable diligence and
expedition to effect removal.
COMPLAINT
- The
applicant complained under Article 5 of the
Convention about the length of his detention, which he maintained
also was unlawful given that he was a British citizen.
THE LAW
- Article
5 of the Convention, so far as relevant, provides as follows:
“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 ...
against whom action is being taken with a view to deportation or
extradition.”
- The
Court recalls that subparagraphs (a) to (f) of Article 5 § 1 of
the Convention contain an exhaustive list of permissible grounds of
deprivation of liberty, and that no deprivation of liberty will be
lawful unless it falls within one of those grounds (see, inter
alia, Saadi v. the United Kingdom [GC], no. 13229/03, §
43, ECHR 2008-...). The first question for the Court, therefore, is
to determine whether the applicant’s detention fell within the
scope of Article 5 § 1 (f), since that is the only ground of
detention of relevance to his case.
- The
Court observes that, having failed to discharge the burden of proving
that he is a British national as he claims, the applicant is clearly
liable to deportation as a foreign national who has committed several
offences. The Court further notes that, on the date on which the
applicant was taken into detention, there was a deportation order
against him in force. Given that the applicant had not made
representations against or sought to appeal the decision to deport
him, the only barrier to his deportation at that time was the need to
obtain a travel document. The Court has no reason to doubt that the
applicant was detained in order to effect his deportation and to
prevent his absconding and thus rendering deportation impossible. His
detention therefore fell squarely within the scope of Article 5 §
1 (f).
- The
Court further recalls that Article 5 § 1 (f) does not demand
that detention be reasonably considered necessary, for example to
prevent the individual from committing an offence or fleeing. Any
deprivation of liberty under the second limb of Article 5 § 1
(f) will be justified, however, only for as long as deportation or
extradition 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) (see A. and Others v. the
United Kingdom [GC], no. 3455/05, § 164, 19 February 2009,
and Chahal v. the United Kingdom, 15 November 1996, §
113, Reports of Judgments and Decisions 1996 V).
- The
deprivation of liberty must also be “lawful”. Where the
“lawfulness” of detention is in issue, including the
question of whether “a procedure prescribed by law” has
been followed, the Convention refers essentially to national law and
lays down the obligation to conform to the substantive and procedural
rules of national law. Compliance with national law is not, however,
sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness. It is a fundamental
principle that no detention which is arbitrary can be compatible with
Article 5 § 1 and the notion of “arbitrariness” in
Article 5 § 1 extends beyond lack of conformity with national
law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and thus contrary to the Convention
(see Saadi, cited above, § 67). To avoid being branded as
arbitrary, detention under Article 5 § 1 (f) must be carried out
in good faith; it must be closely connected to the ground of
detention relied on by the Government; the place and conditions of
detention should be appropriate; and the length of the detention
should not exceed that reasonably required for the purpose pursued
(see A. and Others v. the United Kingdom, cited above, §
164, and, mutatis mutandis, Saadi, cited above, §
74).
- The
Court observes that the lawfulness of the applicant’s detention
was considered and confirmed by the High Court, which found that the
length of his detention at that time was not unreasonable in all the
circumstances of the case, and particularly in the light of the
applicant’s failure to disclose information within his
knowledge which would facilitate the provision of a travel document
to him by the Pakistani authorities. Having regard to the judgment of
the High Court and to the domestic legislation setting out the
Secretary of State’s powers to order the detention of persons
whose deportation is pending, the Court finds that the applicant’s
detention was lawful in terms of the national law.
- Moreover,
the Court finds that the applicant’s detention was not
arbitrary. The Court has been given no reason to believe that the
authorities, in maintaining the applicant’s detention, were
acting otherwise than in good faith. The applicant’s detention
was clearly connected to the ground of detention in that he was being
detained in order to ensure that his deportation could be effected,
once a travel document for him could be obtained. The applicant did
not suggest, and the Court does not find, that his conditions of
detention were inappropriate.
- Finally,
as regards the length of the applicant’s detention, the Court
notes the High Court’s findings that, as at July 2011, this had
not exceeded what was reasonable in all the circumstances of the
case, and finds that this remained true throughout the period of the
applicant’s detention. The applicant had the power to curtail
his detention by disclosing sufficient information, which must surely
be within his knowledge, to permit the Pakistani authorities to issue
him with a travel document. His failure to do so and insistence that
he is a British citizen when he has failed to prove that this is true
acted to lengthen the period that he spent detained. This was in
spite of the exercise by the domestic authorities of due diligence in
trying to effect his deportation. In this regard, the Court notes
that the domestic authorities organised more than one interview for
the applicant with the Pakistani authorities; sent further
information to the Pakistani authorities following their initial
refusal to accept the applicant as a national of Pakistan; and sent
regular reminders to the Pakistani authorities to follow up on the
applicant’s case. The Pakistani High Commission in London
confirmed in June 2011 that the supplementary information provided by
the United Kingdom authorities had been forwarded to Pakistan in
order that the applicant’s national status could be verified.
It is not known whether the applicant’s release from detention
signified the failure of the domestic authorities’ attempts to
obtain a travel document for the applicant or whether a decision was
simply taken domestically that the applicant’s detention was
approaching the limit of what was reasonable in the circumstances.
However, it is apparent to the Court that the domestic authorities
clearly pursued the applicant’s removal to Pakistan throughout
his detention and exercised due diligence in so doing.
- The
present case can therefore be distinguished from others in which the
Court has found that detention for shorter periods than that for
which the present applicant was detained violated Article 5 § 1
(f). In Louled Massoud v. Malta, no. 24340/08, 27 July 2010,
the applicant, a failed asylum seeker of Algerian national origin,
was detained for eighteen months. The Court found that his detention
had been arbitrary, having regard in particular to the Maltese
Government’s failure to demonstrate that they had pursued the
applicant’s deportation vigorously or endeavoured entering into
negotiations with the Algerian authorities with a view to obtaining a
travel document for the applicant (see paragraph 66 of the judgment),
and the lack of safeguards against arbitrariness present in the
Maltese system (see paragraph 71). The Court finds that, unlike the
Maltese authorities in the aforementioned case, the United Kingdom
authorities, as found by the High Court and confirmed above by this
Court, acted with due diligence in attempting to obtain a travel
document in respect of the present applicant. The Court also agrees
with the High Court that the present applicant’s own actions,
in insisting on his British citizenship and in failing to divulge
details of his life in Pakistan that would enable the Pakistani
authorities to identify him, contributed in large part to the length
of his detention. This is in contrast to the applicant in Louled
Massoud where, although the Maltese Government argued that he had
been unwilling to cooperate with the repatriation process, the
applicant contended that the authorities had never in fact contacted
him with a view to facilitating his removal (see paragraph 54 of the
judgment).
- The
Court finds that the present case can also be distinguished from Auad
v. Bulgaria, no. 46390/10, 11 October
2011 in which the applicant, a Palestinian who had last lived in a
refugee camp in Lebanon, was detained for precisely eighteen months,
only being released when his detention reached the maximum length of
time permitted by Article 15 of Directive 2008/115/EC. The Court
found that his detention, notwithstanding the fact that it did not
exceed what was permitted by the Directive, was not justified by
valid grounds throughout the entire period. The Court notes that the
above mentioned Directive is not applicable in the United Kingdom.
However, the real issue in Auad, which is also of relevance in
the present case, was whether the Bulgarian authorities had acted
with due diligence to secure the applicant’s deportation. The
Court found that they had not, given the lack of evidence that the
Bulgarian Government had vigorously pursued the matter with the
Lebanese authorities or had made any effort to secure the applicant’s
admission to a safe third country. The authorities’ failings
were further compounded by the fact that no destination country in
respect of the applicant had been specified, which was problematic in
terms of legal certainty. The Court finds that the present case can
be distinguished from Auad on the grounds that the Government
clearly tried to pursue the applicant’s deportation to a
specific country, namely Pakistan, and that, as stated above, they
employed due diligence in their efforts to do so.
22. The
Court does not exclude that, in a case such as the present where an
applicant withholds information which is required in order effect his
deportation, his continued detention could exceed a reasonable
period, notwithstanding the detainee’s own role in its
duration. The Court recalls in this regard its findings in Mikolenko
v. Estonia, no. 10664/05, §§ 64 and 65, 8 October 2009,
which concerned a national of Russia kept in detention in Estonia for
a period of just under four years due to his refusal to fill in the
necessary application forms to renew his Russian passport and the
Russian authorities’ refusal to accept his return on a
temporary travel document. In that case, the Court found that the
applicant’s detention had exceeded what was reasonable in all
the circumstances of the case and found a violation of Article 5 §
1. However, the case of Mikolenko differs from the present
case on the grounds that, in Mikolenko, the Russian
authorities had continually refused to admit the applicant on a
temporary document, while at the same time it was entirely clear that
the applicant was unwilling to sign the forms necessary for him to be
issued with a new passport. In the present case, the Pakistani
authorities expressed no lack of willingness to accept the applicant,
if his nationality could be established. The information necessary to
establish the applicant’s nationality is undoubtedly within the
applicant’s knowledge and within his power to divulge. The
efforts made throughout his period of detention to deport him to
Pakistan were not “bound to fail”, as the Court found to
be the case in Mikolenko, § 64.
- The
Court therefore finds, having regard to the fact that the domestic
authorities employed due diligence in attempting to secure the
applicant’s deportation throughout the entire period for which
he was detained, his detention did not exceed what was reasonable in
all the circumstances of the case and was not arbitrary.
- It
follows that the applicant’s complaint under Article 5 of the
Convention is manifestly ill-founded and therefore inadmissible,
pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application
inadmissible.
Lawrence Early Lech
Garlicki
Registrar President
