CONCURRING OPINION OF JUDGE SIR NICOLAS BRATZA

I am in agreement with the majority of the Chamber on all aspects of the case and only add a few words of my own on th e complaint under Article 5 § 1 (f) because of the importance of the question raised.

At the heart of the applicant ’ s case is the claim that to detain a person who presented no threat to immigration control for the sole purpose of facilitating an early decision concerning his entry into the United Kingdom did not serve “to prevent his effecting an unauthorised entry into the country” and was not thus compatible with Article 5 § 1 (f). That the applicant himself presented no such threat was, it is argued, amply demonstrated by the facts of the present case: the applicant had not been detained immediately on arrival in the United Kingdom but had been granted temporary admission to the country during which he had fully complied with the reporting requirements and had given no indication of any intention to abscond or otherwise to effect an unauthorised entry into the country. The fact that his detention was not intended to prevent his unauthorised entry was further confirmed by the fact that, once the decision had been taken formally to refuse him leave to enter the United Kingdom , the applicant was immediately released.

I readily accept that Dr Saadi had no intention to effect an unauthorised entry into the United Kingdom but that, on the contrary, his conduct throughout was consistent only with his intention to effect an authorised lawful entry into the country. However, I consider that to interpret Article 5 § 1 (f) as only permitting detention of a person who is shown to be seeking to effect an unauthorised entry is to place too narrow a construction on the terms of the provision. In this respect, I share the opinion of the House of Lords that, until a State has “authorised” entry, the entry is unauthorised and the State has in principle power to detain unde r the first limb of Article 5 § 1 (f) until the application has been considered and authorisation has been granted or refused. While the applicant was granted temporary admission on his arrival in the United Kingdom , this did not, by virtue of section 11 of the 1971 Act, constitute the authorisation of entry into the country.

Again, like the House of Lords, I do not consider that on the true construction of Article 5 § 1 (f) it is a precondition of the power to detain that detention should be “necessary” to prevent an unauthorised entry, in the sense that the use of less severe measures would not suffice either to prevent unauthorised entry or to allow a determination to be made as to whether an individual should be granted immigration clearance or asylum. As noted in the judgment, in the case of Chahal , the Court expressly rejected the contention that the second limb of Article 5 § 1 (f) demanded that the detention of a person against whom action was being taken with a view to deportation should reasonably be considered necessary to prevent the

applicant from committing an offence or fleeing and that in this respect Article 5 § 1 (f) provided a different level o f protection from Article 5 § 1 (c). This interpretation was reaffirmed in the Čonka case. While it is true that the first limb of the sub-paragraph (“to prevent his effecting an unauthorised entry”) and the second limb (“against whom action is being taken with a view to deportation”) are not framed in identical terms, I can find no valid reason for confining the Court ’ s reasoning to the second limb of the sub-paragraph or for holding that a different and stricter test should be applied to the first limb.

Although for these reasons I consider that the detention of the applicant fell within the provisions of Article 5 § 1 (f), I recognise the concern felt that a person should be deprived of his liberty for reasons essentially of administrative efficiency and the risks of arbitrariness which such detention may entail. As has frequently been emphasised in the Court ’ s case-law, any deprivation of liberty must be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness. In the context of detention at the Oakington Centre, this requires not only that the detention of an immigrant lasts for no longer than is required to complete the procedures for deciding whether to grant entry but that the period of detention should be short. The detention in the present case lasted for a total of 7 days, which the majority has found not to be excessive. While I can agree that the period of the applicant ’ s detention at Oakington was within the limits of what could be regarded as acceptable, any period of detention significantly in excess of this period would in my view not be compatible with the first limb of Article 5 § 1 (f).

JOINT DISSENTING OPINION OF JUDGES CASADEVALL, TRAJA AND SIKUTA

1. In the present judgment, the majority (four judges to three) held, inter alia , that there had been no violation of Article 5 § 1 (f) of the Convention. We cannot support that conclusion, for the following reasons:

2 . Under international law, a State has the right, by virtue of its sovereignty, to control the entry and stay of foreigners on its territory. It is, however, equally well established that a State party to the Convention must be deemed to agree to restrict the free exercise of its rights under general international law to the extent and within the limits of the obligations which it has accepted under that Convention.

3 . In the instant case, it was open to the United Kingdom authorities, when the applicant arrived in the United Kingdom, to deprive him of his liberty (that is, to detain him) under Article 5 § 1 (f) on the following condition alone: namely, to prevent his effecting an unauthorised entry into the country. On the basis of the facts in this case, the purpose of the applicant ’ s detention was not, however to prevent the applicant ’ s entry at all . The applicant arrived at London Heathrow Airport on 30 December 2000 and applied for asylum upon his arrival. If the competent authorities had been of the opinion that there existed grounds for detaining him in order to prevent him from effecting an unauthorised entry into the territory, they could have exercised that “right to control entry” at that moment for the purpose set out in Article 5 § 1 (f). However, the immigration authorities, on the contrary, granted him “temporary admission” and he was permitted to stay at a hotel of his choice inside the country. The grant of temporary admission was subsequently extended twice, on two consecutive days. We therefore strongly believe that the pre-condition for the applicant ’ s detention, namely that it be for the purpose of preventing him from effecting an unauthorised entry into the country, was not met, for the simple reason that the immigration authorities had already admitted him.

4 . The applicant applied for asylum upon arrival at London Heathrow Airport , at the immigration desk, in line with the national law. He followed all the instructions given to him by the immigration authorities and reported to them on a regular basis. He did not misuse the asylum procedure and did not hide. On the contrary, he co-operated with the immigration officers. He was granted legally recognized admission, regardless of whether it was temporary or not. From the moment of lodging the asylum application, the asylum procedure started. The asylum procedure is legally recognized and prescribed by national law. It is a procedure which can last for anything

from a few days to several years. The possibility of detaining an asylum seeker at any time during the asylum procedure on the ground that it was to “prevent his effecting an unauthorised entry into the country” would represent great legal uncertainty for the person concerned. States which are parties to international instruments dealing with the legal status of asylum seekers and refugees (e.g. the 1951 UN Convention relating to the Status of Refugees, but also instruments in other systems, e.g. the European Union and the Council of Europe) are obliged to grant an asylum seeker admission to the territory (but not a residence permit) until the final decision in the asylum procedure is taken. This also happened in the instant case, where the respondent Government admitted the applicant to the territory. Paradoxically, as indicated in paragraph 45 of the judgment, the applicant was detained for seven days, and was then released from detention after his asylum claim had been refused .

5 . Lastly, we are of the opinion that the arguments mentioned in paragraph 54 of the judgment, which led to a finding of a violation of Article 5 § 2 of the Convention (non-communication of reasons for detention), provide support for our argument that there has been a violation of Article 5 § 1 (f) of the Convention, because the true reason for detention of the applicant had nothing to do with that provision. The true reason was purely based on administrative or bureaucratic grounds aiming to place the applicant in Oakington detention and to follow the “fast-track procedure”. The majority recognized this explicitly when they affirmed that “ ... that form would have been inaccurate in that it would not have included the true reason ... ”, which would have justified such detention.

6 . For those reasons, since the applicant was not, in our view, detained for the purpose of preventing his effecting an entry into the territory, and since his entry cannot be considered as unauthorised, we do not agree with the conclusion that Article 5 § 1 (f) has not been violated.