Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28023/95

by Parmjett SINGH VIRK

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 7 July 1995 by

Parmjett SINGH VIRK against the United Kingdom and registered on

25 July 1995 under file No. 28023/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Indian national, born in 1961 in the Punjab,

India. The Commission has not been informed as to the present

whereabouts of the applicant and whether or not he has in fact been

deported. The applicant is represented before the Commission by

Malik Adams Solicitors. The facts as submitted by the applicant can

be summarised as follows.

The applicant entered the United Kingdom illegally in early 1994

and made an application for political asylum in the United Kingdom.

In about May 1994 he instructed Maliks solicitors, as they were then

known, to progress his application for asylum.

On 30 August 1994 the applicant was requested to attend an

interview for the purposes of his application for political asylum.

On 30 September 1994 the applicant attended an interview at the Asylum

Screening Unit of the Immigration Department during which a further

interview was arranged for some time in January 1995.

On 8 December 1994 the applicant was arrested at his place of

employment. He was interviewed and then served with a notice in the

following terms:

"I have considered all the information available to me and

I am satisfied that you are an illegal entrant as defined

in Section 33(1)of the Immigration Act 1971.

A. You are therefore a person who is liable to be

detained pending the completion of arrangements for dealing

with you under the Act* I propose to give directions for

your removal from the United Kingdom in due course and

details will be given to you separately.

B. I hereby authorise your detention in police

cells/Group 4.

* paragraph 16 of Schedule 2 to the Act"

On 15 December 1994 the applicant's application for habeas corpus

was consolidated with the habeas corpus applications of two other

asylum seekers (nos. 28021/95 and 28022/95 respectively). On

19 December 1994 the application was heard before the High Court and

on 16 January 1995 judgment was given in favour of the applicant, the

Judge ordering his release. The Secretary of State and the Immigration

Officer appealed that decision and the matter was heard before the

Court of Appeal on 20 January 1995. On 3 February 1995 the Court of

Appeal allowed the appeal and overturned the decision of the Court

below. On 4 July 1995 the House of Lords refused leave to appeal.

By letter of 3 September 1996 the applicant's representatives

were asked to supply information as to the whether a decision had been

taken by the authorities in respect of the applicant's application for

asylum and if so, the content and date of that decision. Further, they

were asked to state whether appeal or judicial review proceedings had

been taken and to enclose any relevant decisions and to say whether the

applicant had been deported or was still detained in the UK. They were

asked to give all relevant dates and to enclose any relevant order(s).

The applicant's representatives wrote to the Commission on

9 October 1996 without providing any of the information requested and

stating that the application did not relate to the merits of the asylum

but to the question of detention only.

COMPLAINTS

1. The applicant complains that his detention in the United Kingdom

pending the determination of his application for asylum is punishment

and constitutes inhuman and degrading treatment within the meaning of

Article 3 of the Convention.

2. The applicant further complains that he was deprived of his right

to liberty as guaranteed by Article 5 of the Convention, his detention

not falling within any of exceptions set out in Article 5

paragraph 1(a)-(f). As regards Article 5 para. 1(f), the applicant

submits that he was a refugee seeking political asylum and that his

application was still under consideration. As such, he submits that

no action in relation to deportation or extradition was pending against

him and his detention could not therefore fall within Article 5

para. 1(f).

3. The applicant contends that if his arrest and detention is found

to fall within the scope of Article 5 para. 1(c), which he denies, he

was deprived of his rights under Article 5 para. 3. He submits that

he was arrested and detained by reason of an administrative decision

and that no tribunal held jurisdiction to determine the matter on which

he had allegedly been arrested. He contends that the authorities did

not intend to bring him before a judge or judicial officer authorised

by law to exercise judicial power.

4. The applicant further complains that he was detained from

27 October 1994 to 19 December 1994 and that the lawfulness of his

detention was not therefore determined speedily within the meaning of

Article 5 para. 4 of the Convention.

5. The applicant further complains that he was deprived of his right

to compensation as guaranteed by Article 5 para. 5 of the Convention

in respect of the alleged violations of Article 5 paras. 1-4 referred

to above.

6. The applicant further complains under Article 6, submitting that

because he was not charged with any criminal offence, but detained as

a result of an administrative act, he was deprived of all the rights

guaranteed in Article 6. Further, he submits that by virtue of the

arbitrary nature of the decision he must have been presumed guilty,

contrary to Article 6.

THE LAW

1. The applicant complains that his detention pending the

determination of his application for asylum was contrary to Article 3

(Art. 3) of the Convention. That provision provides as follows.

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3). The assessment of that minimum

is relative and depends on all the circumstances of the case, such as

the duration of the treatment and its physical or mental effects (see

e.g. Eur. Court H.R., Ireland v. the United Kingdom judgment of

18 January 1978, Series A no. 25, p. 65, para. 162).

The Commission notes that it is unable from the information

supplied to ascertain how long the applicant was detained before his

application for asylum was determined. In the circumstances the basis

of the complaint cannot be considered to have been substantiated.

Further, the Commission notes that the applicant has not alleged or

shown that he suffered inhuman or degrading treatment in the course of

detention, but claims only that detention pending the outcome of his

application for asylum was in itself inhuman and degrading. The

Commission considers that without more, such treatment cannot be

regarded as reaching the threshold required to establish inhuman and

degrading treatment within the meaning of Article 3 (Art. 3) of the

Convention.

It follows that this part of the complaint must be dismissed as

manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains that he was deprived of his right

to liberty as guaranteed by Article 5 (Art. 5) of the Convention.

Article 5 (Art. 5) provides, so far as relevant, 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:

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so;

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.

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial. Release may be

conditioned by guarantees to appear for trial.

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 Commission recalls that the exception provided by Article 5

para. 1(f) (Art. 5-1-f) extends to cover circumstances in which an

individual, originally detained with a view to deportation, challenged

the decision to deport or claims asylum and is kept in detention

pending the outcome of the challenge or claim (see Eur. Court HR,

Chahal v. United Kingdom judgment of 15 November 1996, para. 112

(Reports 1996)).

The Commission notes that the applicant was served with a

deportation notice on 8 December 1994, on which date he was detained.

The Commission therefore considers that, in principle, the applicant

has been lawfully detained under Article 5 para. 1(f) (Art. 5-1-f) of

the Convention as a "person against whom action is being taken with a

view to deportation".

The Commission recalls that detention pending deportation may be

rendered unlawful if the deportation proceedings are not conducted with

the requisite diligence (cf. Eur. Court HR, Kolompar v. Belgium

judgment of 24 September 1992, Series A no. 235, p. 55, para. 36,

Application No. 7317/75, D.R. 6, p. 141).

The Commission observes however that it has not been provided

with the relevant dates, and in particular the date on which the

applicant's application for asylum was determined. It therefore

considers that it has insufficient information to determine whether the

proceedings were conducted with the requisite diligence. In the

circumstances the Commission must conclude that the applicant's

complaints have not been substantiated.

It follows that this part of the complaint must be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant further complains that he was deprived of his right

to be brought promptly before a judge or other officer as guarantee by

Article 5 para. 3 (Art. 5-3) of the Convention.

The Commission recalls that rights are only accorded under

Article 5 para. 3 (Art. 5-3) to those detained in accordance with

Article 5 para. 1(c) (Art. 5-1-c) of the Convention. The Commission

notes that the applicant was detained for the purpose of deportation

and not with a view to bringing him before a competent legal authority

on reasonable suspicion of his having committed an offence or to

prevent his committing an offence or fleeing after having done so. The

Commission does not therefore consider that the applicant's detention

fell within Article 5 para. 1(c) (Art. 5-1-c) and Article 5 para. 3

(Art. 5-3) is not therefore applicable in the circumstances of this

case.

This part of the complaint must therefore be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicant further complains that he was detained from

27 October 1994 to 19 December 1994 and that the lawfulness of his

detention was not therefore determined speedily within the meaning of

Article 5 para. 4 (Art. 5-4) of the Convention.

The Commission recalls that the relevant application for habeas

corpus was issued on 12 December 1994 and heard by the Court

19 December 1994. It notes that the applicant was not in fact released

until 16 January 1995, not 19 December 1994 as submitted, when a writ

of habeas corpus was issued by the High Court.

The Commission observes that the basis for the applicant's habeas

corpus application was that it was unlawful to detain asylum seekers

pending the outcome of their asylum applications. The question raised

complex issues of domestic and international law, the outcome of which

would have affected the position of all asylum seekers held in

detention, indeed, had it been upheld, it would have led to the release

of all asylum seekers detained pending the outcome of their

applications. In the circumstances, the Commission does not consider

that it was unreasonable for the judge to take time to determine the

complex issues of law that had been raised. Indeed, the fact that his

decision was overturned by the Court of Appeal supports the contention

that the answer to the legal arguments raised was not clear cut. The

Commission therefore considers that the delay in determining the

lawfulness of the applicant's detention cannot, in the very particular

circumstances of this case, be considered unreasonable.

It follows that this part of the complaint must also therefore

be dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

5. Insofar as the applicant invokes Article 5 para. 5 (Art. 5-5) in

respect of his complaints under Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4), the Commission recalls that the right to

compensation under this provision presupposes that a violation of one

of the other paragraphs of Article 5 (Art. 5) has been established

either by a domestic organ or by the Convention organs (see eg. No.

7950/77, Dec. 4.3.80, D.R. 19, p. 213). In the present case however,

the Commission has found above that the applicant's complaints disclose

no appearance of a violation of Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4) of the Convention.

It follows that these complaints must also therefore be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

6. The applicant complains that he was deprived of his right to a

fair trial under Article 6 (Art. 6), which, so far as relevant, provide

as follows.

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Commission recalls its previous case law which establishes

that Article 6 (Art. 6) is inapplicable to deportation proceedings

since a decision as to whether an alien should be allowed to stay in

a country is a discretionary act of a public authority and therefore

of an administrative nature. The exercise of the discretionary powers

of the immigration authorities or, as in this case, the Secretary of

State, does not involve the determination of civil rights or

obligations or of a criminal charge within the meaning of Article 6

(Art. 6) of the Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25 p.

105).

It follows that Article 6 (Art. 6) is not applicable in the

present case and this part of the application must be dismissed as

incompatible ratione materiae with the provisions of the Convention

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SINGH VIRK v. THE UNITED KINGDOM

SINGH VIRK v. THE UNITED KINGDOM

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