JOINT PARTLY DISSENTING OPINION OF JUDGE S ROZAKIS, TULKENS, KOVLER, HAJIYEV, SPIELMANN AND HIRVELÄ

(Translation)

We do not share the majority ’ s conclusion that there has been no violation of Article 5 § 1 (f) of the Convention in the instant case, in a situation where it is not disputed that the applicant ’ s detention for seven days at the Oakington Reception C entre amounted to a deprivation of liberty for the purposes of the Convention. The issues at stake in this case are important on two counts. Firstly, the case co ncerns asylum- seekers ’ rights under the Convention and the increasingly worrying situation regarding their detention. Secondly, this is the first case in which the Court has been called upon to provide an interpretati on of the first part of Article 5 § 1 (f), which authorises “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country” and, in particular, of the requirement of necessity imposed by that provision.

It is generally accepted that the aim of the fi rst limb of Article 5 § 1 (f) of the Convention is to prevent illegal immigration, that is, entry into or residence in a country based on circumvention of the immigration control procedures. In the instant case the applicant fled the Kurdish Autonomous Region of Iraq after treating members of the Iraqi Workers ’ Communist Party in the course of his duties as a doctor, and claimed asylum on his arrival at London Heathrow airport. The majority attach no importance to this fact, assimilating the situation of as ylum- seekers to that of ordinary immigrants. Paragraph 64 of the judgment is very clear in this regard and from the outset situates the exce ption provided for by Article 5 § 1 (f) in the overall context of immigration control. After reiterating that States enjoy “an ‘ undeniable sovereign right to control aliens ’ entry into and residence in their territory ’ ”, the majority state that “[ i ]t is a necessary adjunct to this right that States are permitted to detain would-be immigrants who have applied for permission to enter, whether by way of asylum or not”.

In such a radical form, this statement sits uncomfortably with the principle that asylum- seekers who have presented a claim for international protection are ipso facto lawfully within the territory of a State, in particular for the purposes of Article 12 of the International Covenant on Civil and Political Rights (liberty of mo vement) and the case-law of the Human Rights Committee, according to which a person who has duly presented an application for asylum is considered to be “lawfully within the territory” (see paragraph 32 of the judgment). The particular circumstances of this case, moreover, demonstrate this implicitly but with certainty. On his arrival at the airport on 30 December 2000 the applicant was granted temporary admission (see paragraphs 20-21 of the judgment), under the terms of which he could spend the night in the hotel of his choice but had to return to the airport the following morning. On 31 December 2000 the applicant reported as required and was again granted temporary admission until the next day. When he again reported to the airport as agreed he was granted temporary admission for the third time until 10 a.m. the following day, 2 January 2001. It was not until 2 January, after reporting as required, that he was detained an d transferred to the Oakington Reception C entre, where there is a prison -like atmosphere . In any event, the theoretical debate as to whether a person is unlawfully present within a country ’ s territory until he or she has been granted leave to enter is of no real relevance in this case, given that the applicant was in fact given permission to enter for three days.

When considering the context, object and purpose of Article 5 of the Convention, the judgment rightly stresses “the importance of Article 5 in the Convention system”, which “enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty” (see paragraph 63). However, the majority deem it necessary to consider what is meant by “protection against arbitrariness” in the present case, and take the view that “the principle that detention should not be arbitrary must apply to detention under the first limb of Article 5 § 1 (f) in the same manner as it applies to detention under the second limb. Since States enjoy the right to control equally an alien ’ s entry into and residence in their country ... , it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country” (see paragraph 73). Hence, the judgment does not hesitate to treat completely without distinction all categories of non ‑ nationals in all situations – illegal immigrants, persons liable to be deported and those who have committed offences – by including them without qualification under the general heading of immigration control, which falls within the scope of States ’ unlimited sovereignty.

In the context of migration, according to the judgment, the only requirement which the detention measure must satisfy to avoid being branded as arbitrary is that it must have been carried out “in good faith”. It must also “be closely connected to the purpose of preventing unauthorised entry of the person to the country” (see paragraph 74). Are these requirements met in the instant case?

With regard first of all to the question of good faith , the Court has no hesitation in subscribing to the observations of the domestic courts, which fo und that the detention regime at Oakington was designed to ensure the speedy resolution “of some 13,000 of the approximately 84,000 asylum applications made in the United Kingdom per year at that time. In order to achieve this objective it was necessary to schedule up to 150 interviews a day and even small delays might disrupt the entire programme. The applicant was selected for detention on the basis th at his case was suited for fast- track processing” (see paragraph 76). In these circumstances, the Court found that the national authorities acted in “good faith” in detaining the applicant. Indeed, the policy behind the creation of the Oakington regime was generally to benefit asylum- seekers; detention was therefore in their best interests.

If even “small delays” were considered to disrupt the entire programme, it is difficult to discern why, on arriving at the airport and lodging his asylum claim, the applicant was first allowed to remain at liberty and was requested to go to a hotel and report of his own accord on the following days to the authorities responsible for his case (which he duly did).

More fundamentally, not just in the context of asylum but also in other situations involving deprivation of liberty, to maintain that detention is in the interests of the person concerned appears to us an exceedingly dangerous stance to adopt. Furthermore, to contend in the present case that detention is in the int erests not merely of the asylum- seekers themselves “but of those increasingly in the queue” is equally unacceptable. In no circumstances can the end justify the means; no person, no human being may be used as a means towards an end.

Next, as regards the purpose of detention , in stating that “since the purpose of the deprivation of liberty was to enable the authorities quickly and efficiently to determine the applicant ’ s claim to asylum, his detention was closely connected to the purpose of preventing una uthorised entry” (see paragraph 77 in fine ), the Court does not hesitate to go a step fu rther and assimilate all asylum- seekers to potential illegal immigrants.

In the interests of rigour we believe that for detention to be authorised the authorities must satisfy themselves in concreto that it has been ordered exclusively in pursuit of one of the aims referred to in the Convention, in this instance to prevent the person ’ s effecting unauthorised entry into the country. This has in no sense been established in the present case, as the applicant did not enter or attempt to enter the country unlawfully. On the other hand, if the authorities had objectively verifiable grounds to believe that the applicant was liable to abscond before his claim for asylum had been determined, they could have made use of detention in accordance with Article 5 § 1 (f) of the Convention. In that case, the detention would have been aimed at preventing the asylum- seeker from entering or remaining in the country for a purpose other than that for which he had been granted temporary admission. Conversely, it is not permissible to detain refugees on the sole ground that they have made a claim for asylum.

It is not disputed in the present case that the applicant ’ s detention was aimed at ensuring the speedy resolution of his claim for asylum and hence the adoption of a decision on the subject at the earliest date possible. His detention therefore pursued a purely bureaucratic and administrative goal, unrelated to any need to prevent his unauthorised entry into the country. As Judges Casadevall , Traja and Šikuta rightly observed in their dissenting opinion annexed to the Chamber judgment of 11 July 2006, such a situation creates great legal uncertainty for asylum- seekers, stemming from the fact that they could be detained at any time during examination of their application without their being able to take the necessary action to avo id detention. Hence, the asylum- seeker becomes an object rather than a subject of law.

Lastly, following the same line of thinking, the Court accepts in the instant case that a seven-day period of detention “cannot be said to have exceeded that reasonably required for the purpose pursued” (see paragraph 79). In so doing, it is accepting a period of detention which it does not generally sanction in the other cases of deprivation of liberty contemplated by Article 5 of the Convention. Granted, it is understandable that in certain situations, for example concerning extradition, the State must be allowed greater latitude than in the case of other interferences with the right to liberty. However, we can see no justification for adopting such an approach in relation to asylum- seekers, with the attendant risk that the scrutiny of deprivations of liberty under the European Convention on Human Rights will be substantially weakened as a result. Moreover, if a seven-day period of detention is not considered excessive, where and how do we draw the line for what is unacceptable?

As regards detention generally, the requirements of necessity and proportionality oblige the State to furnish relevant and sufficient grounds for the measure taken and to consider other less coercive measures, and also to give reasons why those measures are deemed insufficient to safeguard the private or public interests underlying the deprivation of liberty. Mere administrative expediency or convenience will not suffice. We fail to see what value or higher interest can justify the notion that these fundamental guarantees of individual liberty in a State governed by the rule of law cannot or should not a pply to the detention of asylum- seekers.

Hence, to the extent that these requirements must be encompassed in the notion of arbitrariness, the question of alternatives to detention should have been considered by the majority. They make no mention of it until the closing paragraphs of their reasoning where, paradoxically, they recognise that “the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers” (see paragraph 80). It is thus clearly acknowledged that an alternative to detention might have existed enabling the problem to be dealt with at source, in other words at the level of the management of asylum applications; this further underscores the fact that detention was the wrong answer to the right question.

The European Convention on Human Rights does not apply in a vacuum, but in conjunction with the other international fundamental rights protection instruments. In that regard, with reference to the United Nations , Article 9 of the International Covenant on Civil and Political Rights – which prohibits arbitrary arrest or detention and applies to all cases of deprivation of liberty, including in the context of immigration controls – has been interpreted by the Human Rights Committee ’ s case-law to mean that detention must not simply be lawful, but must also not have been imposed on grounds of administrative expediency (see Hugo v an Alphen v. the Netherlands , Comm unication n o. 305/1988, CCPR/C/39/D/305/1988 (1990)). In addition, it must satisfy the requirements of necessity and proportionality. Lastly, the review of a detention by the courts must not be confined to assessing whether it complies with domestic law, but must also make it possible to determine, even in cases of illegal entry, whether factors particular to the individual (likelihood of absconding, lack of cooperation, and so on) justify his or her detention (see A. v. Australia , Comm unication n o. 560/1993, CCPR/C/59/D/560/1993 (1997)). In its decision in Bakhtiyari v. Australia , the Committee confirms that a court review which does not allow the courts to re - examine the justification of the detention in substantive terms will not satisfy the requirements of Article 9 of the Covenant (see Bakhtiyari v. Australia , Communic ation n o. 1069/2002, CCPR/C/79/D/1069/2002 (2003)).

With reference to the European Union , mention should be made of Artic le 18 of the European Union Charter of Fundamental Rights, which recognises the right to asylum of refugees within the meaning of the Geneva Convention. Article 18 § 1 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in m ember States for granting and withdrawing refugee status (OJ L 326 of 13 December 2005, p. 13) provides that “ Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum ”. This, in our view, is the minimum guarantee, and the assertion made in this provision provides a useful adjunct to the rules set forth in Article 7 of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standa rds for the reception of asylum - seekers (OJ L 31 of 6 Februar y 2 003, p. 18). Article 23 §§ 3 and 4 of Council Directive 2005/85/EC also makes provision for priority or accelerated examination procedures.

As to the Council of Europe , Committee of Ministers Recommendation Rec(2003)5 of 16 April 2003 on measures of detention of asylum- seekers states that the persons falling within the scope of the first limb of Article 5 § 1 (f) do not include “ asylu m- seekers on crim inal charges or rejected asylum- seekers detained pending their removal from the host country ” (point 2). It further states that measures of detention of asylum ‑ seekers “ should be applied only after a careful examination of their necessity in each individual case. These measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments ... ” (point 4). Finally, “[a] lternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention ” (point 6).

The crux of the matter here is whether it is permissible today for the European Convention on Human Rights to provide a lower level of protection than that which is recognised and accepted in the other organisations.

Ultimately, are we now also to accept that Article 5 of the Convention, which has played a major role in ensuring controls of arbitrary detention, should afford a lower level of protection as regards asylum and immigration which, in social and human terms, are the most crucial issues facing us in the years to come? Is it a crime to be a foreigner? We do not think so.