FIRST SECTION

DECISION

Application no . 33341/13 Arben DRAGA against the United Kingdom

The European Court of Human Rights (First Section), sitting on 25 April 2017 as a Committee composed of:

Kristina Pardalos, President, Robert Spano, Tim Eicke, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 20 May 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by third party intervener Bail for Immigration Detainees (“BID”),

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Arben Draga, is a Kosovan national, who was born in 1984 and lives in Queensbury. He was represented before the Court by Ms J. Savic of Savic & Co. Solicitors, a lawyer practising in London.

2. The United Kingdom Government (“the Government”) were represented by their Agents, Ms A. McLeod and Ms M. Macmillan.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant is a Kosovan Gorani who was granted refugee status and indefinite leave to remain in the United Kingdom on 6 December 2001.

5. In 2005 he was convicted of criminal damage; possession of a class A drug with intent to supply; and possession of a knife in a public place. He received a fine, a sentence of eighteen months ’ imprisonment and a sentence of three months ’ imprisonment respectively. He was released in December 2005.

6. At the relevant time, section 72(4) of the Nationality, Immigration and Asylum Act 2002 provided that if convicted of any of the offences listed in the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (the “2004 Order”), a person would be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom.

7. On 2 August 2006, the Secretary of State served the applicant with a notice of a decision to make a deportation order on the basis that his deportation would be conducive to the public good in light of his criminal convictions. The applicant was detained on the same date.

8. On 18 September 2006 the applicant appealed against that decision to the Asylum and Immigration Tribunal (the “AIT”), which dismissed his challenge on 15 February 2007. He requested a reconsideration of his appeal and was released on bail on 29 March 2007; the reconsideration was ordered on 31 May 2007. However, his case was ultimately dismissed on 10 October 2007 with no error of law having been found in the decision at first instance.

9. The Secretary of State issued a deportation order on 6 November 2007 which was served on the applicant on 30 November 2007. He was re ‑ detained on the same date. The applicant then lodged an out of time application to the Court of Appeal for permission to appeal against the AIT decision of 10 October 2007, which was refused on 17 March 2008.

10. On 20 March 2008 the applicant submitted fresh representations to the Secretary of State arguing that the 2004 Order providing for his removal was ultra vires and that his removal would breach Articles 2 and 3 of the Convention. The Secretary of State treated these submissions as a request to revoke the deportation order and refused it on 13 June 2008.

11. On 24 June 2008, two days before the applicant ’ s scheduled removal from the United Kingdom, he applied for judicial review of the Secretary of State ’ s decision and was granted injunctive relief. The judicial review was stayed pending the domestic case of EN (Serbia) v SSHD [2009] EWCA Civ 360 (“ EN ”), which also dealt with a challenge to the legality of the 2004 Order. On 26 June 2009 the Court of Appeal in EN declared that the 2004 Order was ultra vires (the applicant nonetheless maintained the judicial review proceedings, see paragraph 15 below).

12. The Secretary of State reviewed the applicant ’ s case following EN and on 9 October 2009 informed him of an intention to revoke his refugee status under Article 1C(5) of the 1951 Refugee Convention, which provides that an individual will no longer benefit from the provisions of that Convention if “the circumstances in connection with which he has been recognised as a refugee have ceased to exist” and therefore he can no longer “continue to refuse to avail himself of the protection of the country of his nationality”.

13. On 29 October 2009 the applicant submitted written representations to the Secretary of State (a copy of which have not been provided to this Court) challenging that decision and stating that the deportation order and decision should be revoked. On 18 February 2010 the Secretary of State indicated that the deportation order would remain in force owing to the applicant ’ s drugs-related conviction and because his refugee status would cease.

14. The applicant appealed. The First-tier Tribunal (the “FTT”) allowed the applicant ’ s appeal against deportation on 8 September 2010. It found that the deportation order issued had been unlawful as it had depended upon the ultra vires 2004 Order; that the Secretary of State ’ s refusal to revoke that unlawful order could not be upheld; that the cessation of the applicant ’ s refugee status order had simply been a “device” to effect deportation once the 2004 Order could not be relied upon; and that the decision to cease the applicant ’ s refugee status was unlawful. On 17 September 2010 the FTT refused the Secretary of State permission to appeal. On 30 September 2010 the applicant was released on immigration bail.

15 . Meanwhile, the applicant had maintained the judicial review proceedings initiated in June 2008, in which he challenged the lawfulness of his detention given the Court of Appeal ’ s June 2009 decision in EN (cited above) . On 15 July 2011 the High Court found that the entirety of the applicant ’ s detention had been unlawful.

16 . In the context of that judicial review the applicant claimed under the Hardial Singh principles (see paragraph 22 below) that the Secretary of State would not be able to effect deportation within a reasonable period and that the length of his detention was unreasonable. The High Court rejected this argument finding that:

“None of these individual steps [in the detention process] was, on the facts unduly prolonged. It is right to say that the combined length of time is substantial, but looking at the issue at any point along the journey, I cannot see a point at which the Secretary of State ought to have said to herself ‘ I will not to be able to effect removal within a reasonable period from now ’ ”.

17 . The court also took account of the fact that the applicant had previously absconded. In arriving at its overall conclusions it stated:

“In my judgment, the real possibility that Mr Draga would simply disappear if released was a legitimate factor for the Secretary of State to take into account on each occasion when [s]he reviewed the continued detention. Furthermore, it seems to me that the decision not to release Mr Draga against that background was and remained wholly reasonable. It follows that I would not have granted a declaration on Hardial Singh grounds.”

18 . Before the High Court, the applicant had also sought to introduce a new argument based upon a recently promulgated Supreme Court decision of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) (“ Lumba and Mighty ”). That case dealt with an unpublished policy followed by the Secretary of State between April 2006 and 9 September 2008 which constituted a “near blanket ban” on the release from detention of foreign nationals (see V.M. v. the United Kingdom , no. 49734/12 , §§ 55-56, 1 September 2016 ). The High Court in the applicant ’ s case found that to raise a new substantial issue late in proceedings which had not been hinted at anywhere previously, and which the opposing party had not been able to address, created a risk of unfairness. It did not allow the applicant to argue those grounds.

19 . The Secretary of State appealed and this was upheld in part by the Court of Appeal on 21 June 2012. The court held that the decision to deport was different from the decision to detain; that it was difficult to identify any principled basis for distinguishing between those public law errors which would render the decision to detain unlawful and those which would not; that no challenge had been made to the lawfulness of the Secretary of State ’ s decision that the applicant was liable to deportation; that the Secretary of State had been entitled to rely on the Tribunal ’ s finding on 15 February 2007 that the decision to deport was a lawful one as authority for the applicant ’ s detention from 2 August 2006 to 27 March 2007 and commencing on 30 November 2007; that the applicant had been entitled to rely on the Tribunal ’ s 2010 decision that the Secretary of State ’ s actions to cease his refugee status was a “device” to allow his deportation with the result that the second period of detention was only lawful up to 1 January 2010; and that therefore the applicant had been unlawfully detained during the period between 1 January 2010 and 30 September 2010. In its judgment it expressly noted that the High Court had rejected the applicant ’ s challenge to his detention on Hardial Singh grounds and that the applicant had not appealed against that aspect of the decision. It therefore excluded those arguments from the grounds of appeal. Finally with regard to the secret policy issue discussed in Lumba and Mighty (cited above), the court found that whilst the policy in question was being operated at the time of the applicant ’ s detention on 2 August 2006, it was not an issue before the court.

20. The applicant applied to the Supreme Court for permission to appeal. On 27 November 2012 the Supreme Court refused permission.

B. Relevant domestic law and practice

1. Detention pending deportation

21. The power to detain a person pending deportation is contained in Paragraph 2 of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), (for details see V.M. , cited above , § 52).

2. Challenges to detention

22 . In the United Kingdom, a person in immigration detention may at any time bring an application for judicial review in order to challenge the “lawfulness” and Article 5 § 1 (f) compliance of his detention. In considering any such application, the domestic courts must apply the Hardial Singh principles. These principles require that detention be for the purpose of exercising the power to deport; the period of detention must be reasonable in all the circumstances; a detainee must be released if it becomes apparent that deportation cannot be effected within a reasonable period; and the authorities must act with due diligence and expedition to effect removal.

23 . Failing compliance with the requisite conditions, the detention becomes unlawful under domestic law, with the attendant obligation on the authorities to release the individual. The test applied by the United Kingdom courts has been considered almost identical to that applied by this Court under Article 5 § 1 (f) of the Convention in determining whether or not detention has become “arbitrary” (see J.N. v. the United Kingdom , no. 37289/12, § 97, 19 May 2016).

24. Applying the Hardial Singh principles, the Supreme Court found in Lumba and Mighty that detention on the basis of a secret policy had been unlawful (see V.M. , cited above, §§ 64-65).

COMPLAINT

25. The applicant complained that the two periods of his detention from 2 August 2006 to 29 March 2007, and 30 November 2007 to 30 September 2010 were in violation of Article 5 § 1 (f) of the Convention. He submitted that the domestic law governing administrative detention of immigrants for the purposes of expulsion was not sufficiently precise, accessible and foreseeable in its consequences to meet the standard of lawfulness and, as such, it lacked the quality of law necessary to deprive him of his liberty.

26. He also argued that the deportation order made by the Secretary of State was a nullity as it was based upon secondary legislation found by the domestic courts to be ultra vires . Therefore it could not be relied upon to justify his detention. Consequently his detention was arbitrary.

27. Relying upon the Supreme Court decision in Lumba and Mighty (cited above), he also complained that the domestic authorities relied upon a secret blanket policy to justify his detention in 2006.

28. Finally, the applicant submitted that his detention violated Article 8 of the Convention and Article 1 of an unspecified protocol to the Convention. He did not provide any arguments to support this submission.

THE LAW

29. Article 5 § 1 (f) of the Convention reads 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.”

30. The Government contested the applicant ’ s arguments.

31. The third party intervener Bail for Immigration Detainees (“BID”) submitted that without hard-edged legal rules concerning maximum time ‑ limits, or automatic judicial supervision to guard against excessively protracted or otherwise disproportionate detention, domestic law was insufficiently clear, precise and foreseeable in its application to have the “quality of law” required by Article 5 of the Convention.

32. BID supported their submission with reference to the legal systems of other Contracting States of the Council of Europe, international and domestic reports, guidelines and recommendations (for details see J.N. , cited above, §§ 69-73).

33. The Government argued that the applicant ’ s claim was inadmissible for four reasons. First, because the domestic law governing administrative detention of immigrants for the purposes of expulsion met the standard of lawfulness, therefore the applicant ’ s arguments to the contrary were manifestly ill-founded. Second, because the claim relied on a technical point of domestic law concerning the lawfulness of the deportation measure and since Chahal v. the United Kingdom , (15 November 1996, § 112, Reports of Judgments and Decisions 1996 ‑ V) this Court has been clear that it is immaterial for the purposes of Article 5 § 1 (f) whether the underlying decision to expel can be justified under national or Convention law. Third, the argument that the applicant was detained pursuant to an unpublished, blanket policy had not been raised before the domestic courts; neither had the applicant pursued Hardial Singh arguments challenging the length of his detention beyond the High Court. Finally, the domestic courts already found the period of detention from 1 January 2010 to 30 September 2010 to be unlawful and provided the applicant with an effective remedy. Therefore, he can no longer claim to be a victim within the meaning of the Convention.

34. The applicant submitted that the Government ’ s arguments were misconceived.

35. At the outset, the Court notes that it is immaterial for the purposes of Article 5 § 1 (f) whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112). Therefore the applicant ’ s arguments concerning the ultra vires nature of the deportation order are not relevant to its assessment.

36. In respect of the Government ’ s submission that the applicant failed to exhaust his domestic remedies concerning his argument that he was detained pursuant to an unpublished, blanket policy, the Court notes that the High Court rejected the applicant ’ s argument as being made out of time (see paragraph 18 above ). The applicant did not seek to raise it again at the domestic level and the Court of Appeal concluded that this argument did not form part of the appeal before it (see paragraph 18 above). Similarly, the applicant did not pursue his Hardial Singh arguments concerning the length of his detention beyond the High Court, and the Court of Appeal expressly noted that this argument did not form part of the grounds of appeal before it (see paragraphs 16, 17 and 19 above). Therefore, the applicant did not allow the national authorities to address the allegation of a violation of a Convention right or afford redress before those allegations were submitted to the Court. Nevertheless, the Court does not consider it necessary to give a specific ruling on those questions since the application is manifestly ill ‑ founded for the reasons set out below.

37. The Court notes the submissions that the system of immigration detention in the United Kingdom – in particular, the absence of fixed time ‑ limits and automatic judicial review – does not comply with the “quality-of-law” requirements of Article 5 § 1 (f) of the Convention. In the recent case of J.N., cited above, §§ 90-93, the Court expressly rejected this argument. In doing so it found that, despite the absence of fixed time-limits and/or automatic judicial review, the system of immigration detention was sufficiently accessible, precise and foreseeable in its application because it permitted the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. In considering any such challenge, the domestic courts were required to consider the reasonableness of each individual period of detention based entirely on the particular circumstances of that case, applying a test similar to - indeed, modelled on - that required by Article 5 § 1 (f) in the context of “arbitrariness” (the Hardial Singh test (see paragraph 23 above).

38. Therefore, the applicable law was sufficiently accessible, precise and foreseeable and any complaints concerning the “lawfulness” of the applicant ’ s detention must be rejected.

39. Finally the Court cannot accept the applicant ’ s submission that his detention was in violation of Article 8 and Article 1 of an unspecified protocol to the Convention as it was not particularised in any way.

40. Accordingly, it finds the applicant ’ s complaint manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 May 2017 .

             Renata Degener Kristina Pardalos              Deputy Registrar President