ECtHR – S.M.M. v. UK, Application No. 77450/12, 22 June 2017

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Zimbabwe
Date of Decision: 
22-06-2017
Citation: 
ECtHR, S.M.M. v. UK, Application No. 77450/12, 22 June 2017
Court Name: 
European Court of Human Rights (First section)
Headnote: 

The Court held that detention is considered to be arbitrary within the meaning of Article 5 § 1 ECHR, if the length of the detention exceeds what is reasonable for the purpose pursued. It is to be examined whether the authorities have acted with ‘due diligence’.

In cases, such as the present, where the detention has been upheld for a long period, although lawfully, authorities are required to take additional steps in order to proceed with an asylum claim more speedily. When the detained person can be considered as ‘vulnerable’ a higher level of ‘due diligence’ can be expected from the authorities. Even if the asylum claimant complicates the examination of his claim by not providing sufficient evidence, the failure of the authorities to take initiative to end the asylum claim, results in a violation of Article 5 § 1 ECHR.

Facts: 

The applicant, a Zimbabwean national, came to the UK in 2001 and made a first application for asylum in 2005, which was refused on no-compliance grounds. Since 2003, he was suffering from serious mental illness. After being sentenced to three years imprisonment in 2007 for drug possession, the applicant made a second asylum application in 2008 while still imprisoned. After completing his sentence, the applicant was kept in detention for immigration purposes.  To support his asylum claim, the applicant expressed his intention to submit medical evidence proving his serious mental condition. His representative stated that it would be unreasonable for the Secretary of State to make a decision on his claim without awaiting the medical report. Following multiple attempts by the Secretary of State to obtain information on the medical report from the applicant, on 28 June 2010 (and 8 July 2010), the representative sent a letter stating that the detention is unlawful due to the Secretary of State’s policy not to detain mentally ill persons. The respondent’s reply rejected this argument and set a deadline (31 August 2010) to submit the medical report. The report was finally submitted in November 2010 (and replaced by a new report dated 18 January 2011).

In January 2011, the applicant sought permission to apply for judicial review of his detention, which, in his opinion, was unlawful and was contrary to the Secretary of State’s mental health and torture concession and the so called Hardial Singh principles. He was refused permission with decision from 3 June 2011, as the High Court judge held that the circumstances of the applicant were not sufficiently grave to fall under these provisions. This was accepted by the Court of Appeal, reiterating the findings of the High Court’s decision.

On 8 February 2011, the Secretary of State refused the applicant’s second asylum claim and made a deportation order. The applicant’s request to obtain permission to appeal was refused, in the first instance. In 2012, the Upper Tribunal allowed the asylum appeal which was still ongoing at the time this judgment was delivered.

On 15 September 2011, the applicant was released after being granted bail by the Upper Tribunal.

Decision & Reasoning: 

Violation of Article 5 § 1 (f) ECHR

As regards the admissibility of the alleged violation, the UK Government argued that the applicant had not exhausted the domestic remedies concerning his argument that the authorities have not acted with ‘due diligence’ as he has not expressively invoked the test in the second and fourth Hardial Singh principles before the domestic courts. However, the fact that the applicant has primarily focused on the third Hardial Singh principle, cannot be seen as preventing the domestic courts from considering all Hardial Singh principles. The Court supports its approach by stating that the test applied by these principles is ‘almost identical’ to the Court’s test of arbitrariness of detention under Article 5 § 1 (f) ECHR and that the applicant has, thus, raised all relevant arguments under Article 5 § 1 (f) before the domestic courts. The Court, therefore, rejects the inadmissibility argument by the UK Government.

On the merits, the applicant complained that his detention from 28 November 2008 to 15 September 2011 was unlawful, unreasonable, arbitrary and disproportionate and, therefore, violates the right enshrined in Article 5 § 1 (f) ECHR. He bases his complaint essentially on three reasons: (1) by failing to apply the mental health concession the authorities had acted unlawfully; (2) this equally results from not applying the torture concession; and (3) the Secretary of State had failed to apply the third Hardial Singh principle because there was no prospect to effect deportation due to the moratorium on enforced removals to Zimbabwe which lasted until 14 October 2010.

1) Lawfulness of the detention

The Court recalled that the lawfulness of the detention must be assessed in view of its conformity with the substantive and procedural rules of domestic law. However, in V.M. (§ 88) the Court held that this sets inherent limits to the scope of the Court’s review, as national courts are primarily qualified to deal with compatibility issues with national legislation. In the present case, the Court found that the applicant could not establish any reasons why a divergence of the national court’s assessment on the mental health and torture concession would be required. Within the scope of its review, the Court must, however, ascertain whether the relevant domestic law was itself in conformity with Article 5 § 1 (f) ECHR. The applicant claimed that system of immigration detention in the UK cannot be seen as lawful as it lacks fixed time-limits and automatic judicial review. In this respect, the Court refers to its decision in J.N. (§§ 90-93) where it expressly rejected this argument and stated that, despite fixed time-limits and automatic judicial review, the system of immigration detention was sufficiently accessible, precise and foreseeable as it allows the detainee to challenge the lawfulness of the detention at any time.

2) Arbitrariness of the detention

While the Court has not yet established a uniform definition of what constitutes an arbitrary detention, it has developed key principles on a case-by-case basis, according to which detention is arbitrary (1) where there has been bad faith on the part of the authorities; (2) where detention is not closely connected to the grounds relied on by the authorities; (3) where the place and conditions of detention are not appropriate for its purpose or; (4) where the length of the detention exceeds what is reasonably required for the purpose pursued. The Court briefly rejects a violation of the first and the second principle. Regarding the third principle, the Court states, that for a detention to not be arbitrary, it must be, in the case of Article 5 § 1 (f) ECHR, ‘taken with a view to deportation’. In Chahal (§ 113), the Court, thus, held that the detention should not continue for an unreasonable length of time, i.e. only as long as the deportation proceedings are in progress. In the present case, the Court accepted the domestic courts application of the third Hardial Singh principle and concludes that the applicant was detained with view to his deportation.

The Court then assessed in detail, whether the fourth principle applies. While the Court raised some concerns regarding the length of detention of more than two and a half years, it accepted that given the special circumstances in the case (proceedings to challenge the deportation decision initiated by the applicant, repeat offender that has previously absconded, lack of close ties in the UK) the period of detention is still within the scope of Article 5 § 1 ECHR. However, the Court then had to examine whether the length of the detention exceeded the reasonable period required for the purpose pursued and whether the authorities acted with ‘due diligence’. Essentially, the Court acknowledges that the authorities have taken a particularly long period of time to assess the applicant’s second asylum application, filed on 27 March 2008, which was decided on 8 February 2011, more than two years and 10 months later, whereas the UK Home Office normally aims to give a decision within two months. Although it could not be stated, that the authorities were completely inactive during that time (second asylum interview, communication with the applicant’s representative, request from the applicant to be given more time to provide evidence of his medical condition), the Court held that the Secretary of State should have taken more decisive steps to bring the decision making process swiftly to a close. Furthermore, the Court considered the applicant’s serious mental health issues to qualify him as a vulnerable individual, where there is a heightened duty to act with ‘due diligence’ to keep the detention as short as possible. Between the 9 November 2009, when the applicant indicated that he wants to provide medical evidence supporting his asylum claim, and the decision on the asylum claim on 8 February 2011 the UK authorities failed to take any significant initiative towards deciding his claim. Also, during the four months where the medical evidence was due and when it was ultimately provided, the Court stated that there was a heightened need for the government to process and decide the claim diligently and speedily, given the amount of time the applicant has already been held in detention.

The Court, then, recalls that in a system with no fixed time limits on immigration detention, the necessity of procedural safeguards is decisive. Therefore, the Court concludes that there was a particular need for the authorities to ensure the effectiveness of procedural safeguards by guaranteeing a timely decision with appropriate ‘due diligence’. By failing to ensure this, the applicant was prevented from challenging the decision sooner in front of the tribunals who would have been able to fully examine the asylum claim on the merits. Although the applicant has to some extent acted contradictory (requesting more time to submit evidence while, in the same time, complaining about the length of the detention), the burden of proof as regards the lawfulness of the detention lays upon the detaining authority. Given the applicant’s vulnerability and the length of the detention, the authorities should have been more diligent in pursuing the applicant’s representative and following up the provision of the expert evidence, even after the deadline, to ensure the necessary ‘due diligence’.

Therefore, the Court found that the detention from 28 June 2010 until 8 February 2011 was conducted without the required ‘due diligence’ and there has been a violation of Article 5 § 1 ECHR.

Outcome: 

The Court found, unanimously, that there has been a violation of Article 5 § 1 ECHR. The Court dismisses the applicant’s claim for satisfaction for non-pecuniary damage. The applicant is granted EUR 7000 for costs and expenses.

Observations/Comments: 

Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).

Case Law Cited: 

ECtHR - Azinas v Cyprus, Application No. 56679/00

ECtHR - Winterwerp v. the Netherlands, Application No. 6301/73

ECtHR - Bozano v. France, Application No. 9990/82

ECtHR - Sadaykov v. Bulgaria, Application No. 75157/01

ECtHR - Slivenko v. Latvia [GC], Application No. 48321/99

UK - RN (Zimbabwe) CG [2008] UKAIT 00083

UK - R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Raza v Bulgaria, Application no. 31465/08, 11 February 2010

ECtHR - Kim v. Russia, Application no. 44260/13, 17 July 2014

ECtHR - Nicklinson and Lamb v. the United Kingdom, Application No. 2478/15, 1787/15, 23 June 2015

ECtHR - Portyanko v. Ukraine, Application No. 24686/12, 6 October 2015

R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704

ECtHR - Kemmache v. France, Application no. 17621/91

ECtHR - Peacock v. the United Kingdom, Application No. 52335/12, 5 January 2016
Other sources cited: 

Home Office, ‘Management of Asylum Applications by the UK Border Agency’, HC 124 Session 2008-2009, 23 January 2009

Magna Charta, 1215

Authentic Language: 
English
State Party: 
United Kingdom
National / Other Legislative Provisions: 
United Kingdom- Immigration Act 1971 (The 1971 Act)
United Kingdom - Mental Health Act
United Kingdom - UK Borders Act 2007
United Kingdom - Bill of Rights
1688