Information Note on the Court’s case-law 206

April 2017

Muzamba Oyaw v. Belgium (dec.) - 23707/15

Decision 28.2.2017 [Section II]

Article 5

Article 5-1-f

Expulsion

Detention of illegal immigrant for two months despite his partner’s pregnancy: inadmissible

Facts – The applicant, a Congolese national, was detained in a holding centre for illegal immigrants while his partner, a Belgian national, was about seve n months pregnant by him and undergoing a difficult pregnancy.

The applicant submitted that his detention by the Belgian authorities in a holding centre for illegal immigrants had been unlawful and arbitrary. He also complained that his administrative dete ntion with a view to repatriation had interfered with his family and private life.

Law – Article 5 § 1 (f): Although Article 5 § 1 (f) does not require detention to be deemed reasonably necessary, a test of its necessity may be required under the domestic legislation covered by that provision. That is the case in Belgian law following the transposition of Directive 2008/115/EC of the European Parliament and of the Council (the “Return Directive”).

In August 2014 the Aliens Office explained that the reasons for the applicant’s detention were his illegal residence, the fact that he lacked the requisite documentation and his failure to comply with the previous removal order.

Therefore, since the Aliens Office had been unaware of the applicant’s difficult family situation when he was placed in detention, it cannot be criticised for having disregarded that situation at the material time.

Nonetheless, the specific circumstances had not prevented the competent courts from exercising their scrutiny of the case, even if such scrutiny had merely consisted in reviewing the lawfulness of the detention, having regard to the requirements of the Cou rt’s case-law on Article 5 § 1 (f) and the applicant’s specific situation.

The assessment of the applicant’s personal situation had resulted in the court order to release him in September 2014. Although the Indictment Division, on appeal by the State, subs equently ordered the applicant’s continued detention, it also considered the applicant’s family situation, and the conditions justifying interference by the authorities with the applicant’s family life under Article 8 § 2 of the Convention, should such int erference be established. The Indictment Division held that the impugned interference had been provided for in the Aliens Act, had pursued the aim of controlling the entry and residence of aliens in Belgian territory and had been necessary because there ha d been serious reason to believe that the applicant would not comply with the expulsion order with which he had been served. The Indictment Division explicitly pointed out that alternative measures were ineffective, as witnessed by the fact that several ex pulsion orders had previously been served on the applicant and that at the hearing he had confirmed his wish to remain in Belgium and not to return to Congo. The competent courts had therefore adequately assessed the necessity of the applicant’s detention as required under domestic law.

The detention order of October 2014 had complied with the provisions of the Aliens Act and been closely linked to the grounds of detention, that is to say the applicant’s expulsion procedure. The Aliens Office had taken all the requisite action to ensure the applicant’s removal, exercising all the necessary diligence.

Finally, the total duration of the applicant’s detention had not been excessive. The detention had lasted 2 months and 19 days and had led to the applicant’s re lease in November 2014, well in advance of the expiry of the legal time-limit.

In the light of the foregoing considerations, the Court considered that the applicant’s detention had been “lawful” within the meaning of Article 5 § 1 (f) of the Convention.

Co nclusion : inadmissible (manifestly ill-founded).

Article 8: The Belgian authorities had implicitly recognised a posteriori that the applicant, his partner and their child did have a shared family life by releasing the applicant on the date on which his partner had given birth.

The fact that the applicant was detained in a holding centre for illegal immigrants, thus separating him from his partner while she was pregnant with his child, could be seen as an interference with the effective enjoyment of his family life, which interference was prescribed by law and pursued the legitimate aim of preventing disorder.

The Belgian autho rities could reasonably have considered that the applicant was liable to attempt to evade their control, such that his placement in a holding centre in order to expel him appeared to be justified by a compelling social need. Furthermore, the domestic court s had considered various alternatives to detention.

The applicant’s family life had developed at a time when he had known that his situation vis-à-vis the immigration regulations was liable to destabilise such family life in Belgium. Moreover, his family l ife had been analysed in depth by the Aliens Litigation Council, without any appearance of arbitrariness or a manifestly unreasonable assessment. The applicant’s partner had thus benefited from medical care and been able to stay in touch with him during hi s detention. Lastly, the applicant’s detention had lasted 2 months and 19 days in all and had therefore not exceeded the legal time-limit, and the applicant had finally been released on the date on which his partner had given birth.

Regard being had to all the above facts, the detention in question had not been disproportionate, and the Belgian authorities could not be accused of having failed to strike a fair balance between the competing interests at stake by placing the applicant in administrative detent ion with a view to expelling him.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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