FIRST SECTION

DECISION

Application no . 54318/14 J.M.O . against the United Kingdom

The European Court of Human Rights (First Section), sitting on 21 February 2017 as a Committee composed of:

Kristina Pardalos , President, Pauliine Koskelo , Tim Eicke , judges , and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 28 July 2014,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1. The applicant was born in 1950 and lives in Stockton-on-Tees .

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant arrived in the United Kingdom in 1972. He was granted indefinite leave to remain on 25 August 1988. The Secretary of State revoked his indefinite leave to remain on an unknown date in 2007, following his convictions for criminal offences from 1996-2004.

4. On 19 July 2011 he was convicted of sexual assault and was sentenced to two years and six months ’ imprisonment. Upon the expiration of his criminal detention on 19 October 2012, his detention was maintained under immigration powers.

5. The applicant was refused immigration bail on 16 July 2013.

6. On 8 August 2013 the applicant commenced judicial review proceedings challenging his ongoing immigration detention.

7. On 19 September 2013 the applicant was granted permission to apply for judicial review on the grounds ( i ) that it was far from clear that he was removable within a reasonable time; and (ii) that the Secretary of State, in maintaining the applicant ’ s detention, had taken into account his risk of reoffending.

8. Following an oral hearing on 13 December 2013 and, after an adjournment, 20 and 22 January 2014, the Administrative Court, on 4 February 2014, dismissed the applicant ’ s judicial review claim. Following judgment, the High Court judge refused the applicant ’ s application for permission to appeal to the Court of Appeal on the basis that such an appeal would have no real prospect of success, as the applicant had not identified any arguable errors of law, and did not raise any issues of wider importance. The applicant did not renew his application for permission to appeal to the Court of Appeal.

9. On 4 February 2014 the Administrative Court dismissed the applicant ’ s judicial review claim following a renewed oral hearing; refused him permission to appeal on further unspecified grounds; and refused permission to appeal to the Court of Appeal. The applicant did not appeal to the Court of Appeal.

10. The applicant was released on 2 July 2014 having been granted immigration bail subject to conditions.

B. Relevant domestic law and practice

1. Detention pending deportation

11. 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. v. the United Kingdom , no. 49734/12, § 52, 1 September 2016).

2. Challenges to detention

12. In the United Kingdom, a person in immigration detention may at any time bring an application for judicial review in order to challenge t he “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.

13 . 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 is therefore 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).

COMPLAINT

14. The applicant complained under Article 5 § 1 (f) of the Convention that his detention exceeded that reasonably required fo r the purposes of Article 5 § 1 (f) for at no stage was there any sensible prospect of his removal from the United Kingdom. He also complained that the domestic law governing administrative detention of immigrants for the purposes of expulsion was unregulated; not subject to automatic judicial supervision; and not sufficiently clear, precise and foreseeable in its application for Article 5 purposes.

THE LAW

15. Article 35 § 1 of the Convention, reads as follows:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

A. The parties ’ submissions

16. The Government argued that the applicant had failed to exhaust domestic remedies as it was open to him to appeal the decision of the High Court to the Court of Appeal, but he did not do so. The Government underlined that the Court of Appeal had full jurisdiction in such appeals.

17. The applicant submitted that he had not attempted to go to the Court of Appeal as he had no real prospect of success because there was neither a maximum time limit in domestic law for immigration detention, nor automatic, judicial review. In the absence of such provisions the domestic law lacked clarity and so the applicant could not meaningfully challenge the High Court ’ s conclusion that his detention was lawful. Accordingly, there would be no purpose in pursuing an appeal.

B. The Court ’ s assessment

1. General principles

18. The rule of exhaustion of do mestic remedies in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. It normally requires that the complaints intended to be made at international level should have been aired before the appropriate domestic courts, at least in substance, in compliance with the formal requirements and time ‑ limits laid down in domestic law (see, among many other authorities, Peacock v the United Kingdom , no. 52335/12 ( dec. ) 5 January 2016; Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III; and Nicklinson and Lamb v. the United Kingdom ( dec. ), nos . 2478/15 and 1787/15, § 89, 23 June 2015).

19. The object of the rule is to allow the national authorities to address the allegation of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised, the national legal order has been denied the opportunity which the rule on exhaustion of domestic remedies is intended to give it to address the Convention issue. ( Azinas , cited above, § 38; and Nicklinson and Lamb , cited above, § 89).

2. Application of the general principles to the present case

20. The applicant has argued that the absence of clear provisions and safeguards for immigration detention in domestic law made it pointless to pursue an appeal. In this connection, the Court recalls that in J.N., (cited above, §§ 98-101) it concluded that the system of immigration detention in the United Kingdom did not, in principle, fall short of the requirements of Article 5 § 1(f) of the Convention. The Court has found that the absence of a maximum time-limit and automatic judicial review should not give rise to any increased risk of arbitrariness, as domestic law permits the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. In considering any such challenge, the domestic courts are 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 – th at required by Article 5 § 1(f) of the Convention in the context of “arbitrariness”.

21. Accordingly, the Court concludes that the applicant had an effective remedy at his disposal which he did not pursue. By this failure, the applicant has denied the national legal order the opportunity to address the Convention issue, which the rule on exhaustion of domestic remedies is intended to provide.

22. In light of the foregoing, the application must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 March 2017 .

Renata Degener Kristina Pardalos              Deputy Registrar President