FOURTH SECTION

DECISION

Application no . 19352/12 Mowleed Mohamed HUSSEIN against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 25 November 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , Ledi Bianku , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges,

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 6 February 2012 ,

Having regard to the declaration submitted by the respondent Government on 7 May 2014 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . T he applicant, Mr Mowleed Mohammed Hussein , is a Somali national, who was born in 1979 and lives in West Drayton . He was represented before the Court by Ms R. Tanna of Islington Law Centre , a lawyer practising in London .

2. The United Kingdom Government (“the Government”) wer e represented by their Agent, M s M. Addis of the Foreign and Commonwealth Office .

3. The application had been communicated to the Government .

A. The circumstances of the case

4. The applicant is a Somali national who was born in Somaliland . He was administratively detained under the Immigration Act between 16 April 2004 and 21 August 2007 pending deportation. Throughout his detention the applicant did not receive monthly reviews in accordance with the relevant Home Office guidelines. Moreover, from April 2006 the Home Office was operating a “secret” unpublished policy which created a presumption in favour of detention.

5. In two separate (unrelated) judgments ( Shepherd Masimba Kambadzi v. Secretary of State for the Home Department [2011] UKSC 23 and Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12), the Supreme Court considered the lawfulness under domestic law of the detention of two persons pending deportation.

6. In the case of Shepherd Masimba Kambadzi v. Secretary of State for the Home Department the applicant , who had been detained pending the making of a deportation order for twenty-seven months , alleged that his detention had been unlawful as it had not been subject to regular reviews as required by the Secretary of State ’ s published policy. The Supreme Court concluded by a majority that it was the Secretary of State ’ s duty to give effect to his published policy if that policy was sufficiently closely related to the authority to detain. In that case, the court found that this test was met and that the applicant ’ s detention was unlawful.

7. In Lumba and Mighty v. Secretary of State for the Home Department applicants were Foreign National Prisoners detained pursuant to a “secret” policy creating a presumption in favour of detention pending deportation, while at all material times the Secretary of State ’ s published policy indicated that there was a presumption in favour of release. The question of whether the applicants were lawfully detained divided the court, which concluded, by a narrow margin, that the unpublished policy applied to the applicants was unlawful. As a consequence, their detention was unlawful under domestic law.

COMPLAINTS

8. The applicant complains that his detention did not fall within the exception in Article 5 § 1 (f) of the Convention because he was not being detained “with a view to deportation” as there was no realistic prospect of his deportation within a reasonable time or at all.

9. Alternatively, he complained that his detention was in breach of Article 5 § 1 because the lack of time limits and judicial oversight prevented the domestic legal regime governing administrative detention from being adequately accessible, precise and foreseeable; the United Kingdom did not act with due diligence in pursuing his deportation and the length of his detention was excessive; and his detention was not in accordance with a procedure prescribed by law as regular reviews were not conducted and for the latter part it was pursuant to an unpublished policy.

10. The applicant further complained under Article 5 § 2 of the Convention that the failure to conduct detention reviews and the operation of the secret detention policy deprived him of accurate reasons for his detention .

11. The applicant also complained under Article 5 § 4 of the Convention that his ability to challenge his detention was impeded as he did not know the true policy under which he was being detained or the true reasons for his detention.

12. Finally, the applicant complained that he has not been awarded the compensation to which he is entitled for his unlawful detention in breach of Article 5 § 5 of the Convention.

THE LAW

13. The applicant complained about the length and lawfulness of his detention pending deportation .

14. The Court communicated the following questions to the parties:

“ 1. Was the applicant ’ s detention in accordance with a procedure prescribed by law?

2. Was the applicant lawfully detained throughout the period between 16 April 2004 and 21 August 2007 as “a person against whom action was being taken with a view to deportation”?

3 . Did the domestic legal regime of administrative detention lack the “quality of law” required by Article 5? In particular, did the lack of any time-limits on administrative detention, taken alone or in conjunction with the lack of any automatic judicial oversight of such detention, violate Article 5 in this sense?”

15. After the failure of attempts to reach a friendly settlement, by a letter of 10 June 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

16. The declaration provided as follows:

“ 1. In the particular circumstances of the present case the Government wish to express by way of a unilateral declaration their acknowledgement that, in accordance with the judgment of the Supreme Court of the United Kingdom in R ( Kambadzi ) v. Home Secretary , the Applicant ’ s detention was not lawful under domestic law when the regular reviews required by the Secretary of State ’ s published policy were not carried out on the occasions identified in the Statement of Facts prepared by this Court ’ s Registry.

2. In those circumstances, the Government accept that the findings in this Court ’ s judgment in Abdi v. the United Kingdom that detention in that case was not ‘ lawful ’ under domestic law for this reason was, as such, in breach of Article 5 § 1 of the Convention apply with equal force to the applicant ’ s complaints in this case. The Government accept the Court ’ s reiteration in the Abdi judgment that for detention to be ‘ lawful ’ , it must conform to the substantive and procedural rules of national law having the quality of law, including the aforementioned requirement for regular reviews of detention in these circumstances. The Government accordingly accept and regret that in the circumstances of the Applicant ’ s case, his detention was therefore in breach of Article 5 § 1. With regard to the length of the Applicant ’ s detention, the Government accept that the Court ’ s reasoning and conclusions in Abdi apply equally to the Applicant ’ s case.

3. The Government further acknowledge and regret that save for two months of the Applicant ’ s detention which the Administrative Court declared to be unlawful the Applicant has not otherwise received any redress under domestic law for the unlawfulness of his detention, either under domestic law or in respect of a violation of the Convention.

4. Consequently, the Government are prepared to pay the Applicant a total amount of EUR 6,750 inclusive of costs, expenses and any tax payable. In the Government ’ s view, having regard to all the circumstances of the Applicant ’ s case; to this Court ’ s awards in comparable cases, including in particular the similar case of Abdi ; and to the estimated amount of costs and expenses that the Applicant is likely to have incurred to date; the above total would constitute adequate redress for the violation of Article 5 § 1 in the present case.

5. The total sum would be payable in pounds sterling into a bank account nominated by the Applicant within 3 months from the date of the striking out decision of the Court pursuant to Article 37 of the Convention. The payment will constitute the final settlement of the Applicant ’ s case as to Article 5 of the Convention. In the event of the failure to pay this sum within the said 3 month period, the Government will pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points.

6. In light of the foregoing, the Government submit that the circumstances of the present case allow the Court to reach the conclusion that there exists ‘ any other reason ’ , as referred to in Article 37 § 1(c), justifying the Court discontinuing the examination of this application. The final disposal of this application in accordance with the Government ’ s unilateral declaration would adequately ensure respect for human rights.

7. The period during which reviews of the Applicant ’ s detention were not carried out in accordance with the Secretary of State ’ s published policy (namely May 2004 to April 2007) was one in which there regrettably appears to have been failure to comply with the relevant requirements of policy. This is also illustrated by the facts of the Kambadzi case, in which the relevant period of detention was from March 2006 to January 2008, during which that claimant had had only 10 reviews of his detention out of the 22 reviews that should have taken place; any by the facts of the Abdi case, in which the relevant period of detention was from September 2003 to April 2007, during which that applicant had had only 22 reviews of his detention out of 43.

8. However, since that pattern of non-compliance was brought to light in domestic litigation, including in particular in the Kambadzi case, and since the domestic courts began to consider that a failure to conduct a detention review could undermine the lawfulness in domestic law of the individual ’ s detention (as since confirmed by the Supreme Court in Kambadzi ), the Home Office has implemented changes to its procedures and systems to ensure that detention reviews are conducted in accordance with the timetable set out in published policy. Those changes have generally led to detention reviews being conducted at the times required by the policy, and litigation about lawfulness of detention usually concerns questions of whether the conclusion reached by each review was lawful and/or correct in the circumstances of the individual case. Further, any affected individual is now clearly able to seek a remedy in domestic law following Kambadzi . ”

17. By a letter of 16 July 2014 the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that his case was the first communicated case to allege important systemic defects affecting the fundamental right to liberty in the United Kingdom; the case was an appropriate vehicle to consider whether the lack of any time-limits on administrative detention, taken alone or in conjunction with the lack of any automatic judicial oversight of such detention, violated Article 5 in this sense; the scope of the Government ’ s admissions was narrower than the Convention breaches alleged by the applicant; significant facts remained in dispute; and the sum proposed by the Government was considerably lower than that to which the applicant would ordinarily be entitled should he succeed on his primary grounds of challenge.

18. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

19. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

20. To this end, the Court examine d the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objection) , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec. ) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ) no. 28953/03).

21. In the present case, the Court communicated three complaints: whether the applicant ’ s detention was in accordance with a procedure prescribed by law; whether he was lawfully detained throughout as “a person against whom action was being taken with a view to deportation” ; and whether the domestic legal regime lacked the quality of law required by Article 5 of the Convention.

22. In Abdi v. the United Kingdom , no. 27770/08 , 9 April 2013 the applicant had complained generally under Article 5 § 1 (f) about the length of his detention pending deportation. The Court only found his complaints to be admissible in respect of the later period of his detention. However, following the decision of the Supreme Court in Shepherd Masimba Kambadzi v. Secretary of State for the Home Department , the Court found that his detention had not been in accordance with domestic law because the necessary reviews had not been carried out and, as such, it was in breach of Article 5 § 1 of the Convention. In view of this finding, the Court did not consider it necessary to make a separate finding about whether the applicant ’ s detention also violated Article 5 § 1 on account of its length, although it did opine that the Supreme Court ’ s views on this question, as expressed in Lumba and Mighty v. Secretary of State for the Home Department , were consistent with its own conclusions in Mikolenko v. Estonia , no. 10664/05 , 8 October 2009 .

23. In the present case the Government have accepted in their unilateral declaration that the applicant ’ s detention was in breach of Article 5 § 1 because all of the necessary reviews were not carried out . With regard to the length of the applicant ’ s detention, the Government have accepted that the Court ’ s reasoning and conclusions in Abdi apply equally to the applicant ’ s case.

24. Having regard to its conclusions in Abdi , the Court considers that the admissions made by the Government are sufficient to enable it to dispose of the present case. First, it notes that if the present case were to proceed to judgment, it would not be necessary for it to consider whether or not the length of the applicant ’ s detention was in breach of Article 5, or whether the domestic regime lacked the quality of the law required by Article 5, because it would be clear from the outset that the detention was not in accordance with domestic law following the judgment of the Supreme Court in Shepherd Masimba Kambadzi v. Secretary of State for the Home Department . Secondly, while the Court agrees that the applicant ’ s allegation that there exist systemic defects in the domestic law permitting detention pending deportation is an important one which requires judicial consideration, it notes that this question has been posed in a number of communicated cases in which the question of lawfulness under domestic law does not arise (see, for example, V.M. v. the United Kingdom , no. 49734/12, S.M.M. v. the United Kingdom, no. 77450/12, J.N. v. the United Kingdom , no. 37289/12 and L.M. Ahmed v. the United Kingdom , no. 59727/13). As such, the Court will have the opportunity to consider this question fully at a later date. Finally, the Court considers that the award of damages proposed by the Government is commensurate with the award made in Abdi , which concerned a period of detention of a similar length.

25. The Court notes that the applicant made a number of complaints which were not addressed by the Government in the Unilateral Declaration. However, it considers that the applicant ’ s complaints under Articles 5 § 2 and 5 § 4 of the Convention are in essence a re-statement of his complaints under Article 5 § 1. The Court further consid ers the complaint under Article 5 § 5 to be manifestly ill-founded . The applicant was entitled to compensation but chose not to pursue it because any sum awarded would have been consumed by the statutory charge levied by the legal aid fund.

26. Therefore, in light of the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – whic h is consistent with the amount awarded in Abdi v. the United Kingdom – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

27. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

28. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 5 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it relates to the complaint under Article 5 § 1 of the Convention ; and

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President