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AS TO THE ADMISSIBILITY OF

Application No. 28110/95

by Ahmet JAHROMI

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 July 1995 by

Ahmet JAHROMI against the United Kingdom and registered on

3 August 1995 under file No. 28110/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the letter submitted by the respondent Government on

14 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Iran born in 1967 and at the time

of his application was detained in Winson Green prison, Birmingham. He

is represented before the Commission by Dr. L. Malik, a solicitor

practising in Manchester. The facts as submitted by the parties may be

summarised as follows.

In 1984, the applicant fled to Kuwait from Iran to avoid being

conscripted to fight in the Iran-Iraq war. He was granted political

asylum in Kuwait.

In or about 1985, the applicant entered the United Kingdom as a

student and has remained there ever since. During his residence there,

the applicant has been an active opponent of the regime in Iran and has

been involved in religious activities, being a devout muslim who

regards it as part of his religious vocation to convert non-believers.

In or about 1993, the applicant claimed asylum in the United

Kingdom. According to the facts as found by the courts in subsequent

proceedings, the applicant was given temporary admission to the United

Kingdom on the basis that he had made an application for asylum which

was still pending.

On 9 March 1995, the applicant was detained, being informed that

the Secretary of State had decided to deport him on the basis that for

reasons of national security, namely, the likelihood of his involvement

in terrorism, his continued presence in the United Kingdom would not

be conducive to the public good. He was to be detained pending the

decision on his outstanding application for asylum and any

representations which he might wish to make.

On 7 April 1995, the applicant applied for habeas corpus

challenging the legality of his detention. He also applied for judicial

review of the Secretary of State's failure to give adequate reasons or

particulars of the allegations against him. He submitted, inter alia,

that the Secretary of State had misdirected himself in considering

whether his continued presence would not be conducive to the public

good rather than the words of the statute which refer to the

deportation having to be conducive to the public good (Section 3(5)b

of the Immigration Act 1971).

In an affidavit of 11 April 1995, the Secretary of State

indicated that the reason for the decision to deport was that he had

seen material which lead him to the view that the applicant was

involved in the planning of terrorist activity in the United Kingdom

and to give further reasons would be damaging to national security and

incompatible with the protection of intelligence sources.

On 12 April 1995, Mr Justice Laws dismissed the application for

judicial review and habeas corpus.

On 21 June 1995, the Court of Appeal dismissed the applicant's

appeal. It found that the difference in wording between the Secretary

of State's decision-letter and the provisions of the Act was a matter

of semantics and there was no reason to suppose that the Secretary of

State had misdirected himself. As regards the lack of reasons given,

it found that unless there was evidence that the Secretary of State was

not acting in good faith in asserting that the giving of further

reasons would be damaging to national security and incompatible with

the protection of intelligence sources, the courts must accept that

position and make no further enquiry.

On a date unspecified, the applicant's asylum application was

refused by the Secretary of State. He decided not to exercise his right

of appeal due to the national security grounds. He was removed from the

United Kingdom on 3 January 1996 and was granted asylum in Kuwait.

COMPLAINTS

The applicant complains that his detention was not in accordance

with law or a lawful arrest or detention within the meaning of

Article 5 para. 1 (f) of the Convention since the Secretary of State's

decision did not reflect the test of the legislation ie. that the

applicant's deportation must be conducive to the public good rather

than that his presence was not conducive to the public good.

The applicant submits that he was not given sufficient or

adequate reasons for his arrest as required by Article 5 para. 2 of the

Convention.

The applicant complains that he had no possibility of obtaining

a review of the lawfulness of his detention as required by Article 5

para. 4 of the Convention since the courts will not inquire into the

reasons where national security is invoked.

The applicant also invokes Article 5 para. 5 of the Convention

in relation to a lack of enforceable right to compensation.

The applicant submits that the arbitrary detention interfered

with his right to respect for his private life contrary to Article 8

of the Convention and, insofar as it was attributable to his religious

beliefs, contrary to Article 9 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 July 1995 and registered on

3 August 1995.

On 21 May 1997, the Commission decided to communicate the

application to the respondent Government.

The Government wrote a letter on 14 October 1997, stating that

they did not wish to submit any observations, after an extension of the

time-limit fixed for that purpose. The applicant did not make any

observations.

On 21 January 1998, the Commission granted the applicant legal

aid.

THE LAW

1. The applicant complains that his detention was not in accordance

with the provisions of Article 5 para. 1 (f) (Art. 5-1-f). He also

complains that he was not given the reasons for his detention contrary

to Article 5 para. 2 (Art. 5-2) of the Convention. The applicant

further complains that he did not have a review of his detention which

conformed with the requirements of Article 5 para. 4 (Art. 5-4) nor an

enforceable right to compensation as required by Article 5 para. 5

(Art. 5-5). The applicant further invokes Articles 8 and 9

(Art. 8, 9) of the Convention alleging that his arbitrary detention

discloses violations of his right to respect for private life and his

right to manifest his religious beliefs. The relevant provisions of

Article 5 (Art. 5) provide 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 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.

...

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 Government state that they do not wish to submit observations

in relation to the admissibility of the application.

The applicant relies, inter alia, on the Court's judgment in

Chahal (Eur. Court HR, Chahal v. the United Kingdom judgment of

15 November 1996, Reports 1996-V, p. 1789 at p. 1865, paras. 124-132)

which raised similar issues under Article 5 para. 4 (Art. 5-4) and in

which the Court unanimously found a violation of that provision.

The Commission has taken cognizance of the submissions of the

parties concerning the complaints raised by the applicant. It considers

that the complaints raise serious issues of fact and law the

determination of which should depend on an examination of the merits.

The application cannot therefore be regarded as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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JAHROMI v. THE UNITED KINGDOM

JAHROMI v. THE UNITED KINGDOM

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