ECtHR Abdi v. the United Kingdom (no. 27770/08)

ECtHR judgment in Abdi, BID intervened. Finding of Art 5 breach, real though limited compensation for unlawful detention

ECtHR Abdi v. the United Kingdom (no. 27770/08)

The judgment can be accessed via the European Court of Human rights website .

BID welcomes the Court’s finding that there has been a violation of Article 5 (1) of the Convention in this immigration detention case.  In its judgment the Court notes that in relation to the length of detention, the UK Supreme Court in Lumba & Mighty v SSHD found that “where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect”.  The Court states that it finds this approach consistent with the one it took in Mikolenko v Estonia, no. 10664/056 8 October 2009, noting here at 74 that: 

“In that case, the Court did not suggest that the applicant’s refusal to co-operate with his detention was irrelevant; however, in view of the extraordinary length of his detention and the fact that his removal had for all practical purposes become virtually impossible, it accepted that his continued detention was no longer being effected with a view to his deportation”.

BID’s submissions in this case indicated that the effect of the Court of Appeal’s decision of July 2007 in this case was to limit the power of domestic courts to review detention pending deportation.

“While the case of Mikolenko v Estonia identified the relevant test as whether there was a “realistic prospect” of expulsion, the Court of appeal in the present case had asked whether there was “some prospect” of removal.  Moreover, in Mikolenko the Court had held that it was not relevant that the detained person refused to cooperate with the process of deportation, while the Court of Appeal in the present case had focused on the activity of the applicant”  (para 63). 

The applicant, Mustafa Abdi, is a Somali national who was born in 1975 and is currently detained in London. Having arrived in the United Kingdom in 1995, his asylum claim was refused, but he was granted exceptional leave to remain until 2000. In July 1998, he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. His release was foreseen for September 2003, but he remained in detention pending deportation. He complains that his detention, until being released for a short time in April 2007, violated his rights under Article 5 § 1 (right to liberty and security), in particular because of its duration. Relying further on Article 13 (right to an effective remedy), he complains that he did not have an effective remedy in respect of that complaint. Finally, he complains that his removal to Mogadishu would put him at risk of ill-treatment, in breach of Article 3 (prohibition of torture and of inhuman or degrading treatment).

The Court posed three linked questions to the parties in its statement of facts of 09 June 2009:

1. Was the applicant lawfully detained throughout the period between 3 September 2003 and April 2007 as “a person against whom action is being taken with a view to deportation” within the meaning of Article 5 § 1(f)?
2. What weight should be attributed to the fact that at any time the applicant could have put an end to the period of immigration detention by agreeing to return voluntarily to Mogadishu?
3. Did the length of the detention exceed that reasonably required for the purpose pursued under Article 5 § 1(f)?

Shortcomings in the procedural safeguards afforded in the UK against arbitrary detention

BID’s interest was to comment on those issues not in relation to the individual case but to the extent that they have a wider impact on the thousands of people detained under immigration powers in the UK each year, a number of whom at any time have been detained for over one year (and up to seven years in a very few cases).  BID’s intervention in this case came at the point where, it was submitted to the Court, there had been a sharp increase in the number of foreign national prisoners being deported from the UK.

BID emphasised to the Court that in considering whether detention became unlawful by reason of its length in this case that there are and were numerous shortcomings in the procedural safeguards afforded in the UK against arbitrary detention, namely:

1. There is considerable evidence that the executive system of review of administrative detention is (a) inadequate, since monthly reviews of detention are frequently not completed, or at least are not completed by persons of the appropriate seniority; and (b) a sham in that caseworkers were throughout the period April 2006-July 2008 (during the currency of the secret policy) instructed to give whatever reasons seemed most justifiable.
2. The UK government has admitted to the High Court that between April 2006 and June 2008 it misled the Courts as to the true policy it was applying in respect of foreign national prisoners. Its published policy in chapter 38 of the Operations Enforcement Manual had in reality been displaced by a secret, unpublished and undisclosed policy of blanket, alternatively presumptive detention of all foreign nationals at the expiry of their prison sentences.
3. The jurisdiction of the Asylum and Immigration Tribunal [now the Immigration & Asylum Chamber] to grant bail is predicated on an assumption that detention is lawful, and the practical realities of the bail system are unsatisfactory.

BID noted that a unique feature of the statutory regime of immigration detention, without parallel in other fields of administrative detention in the UK, is that there is neither a statutory time limit on the duration of detention, nor any mechanism of automatic court hearings to review its legality.

BID submitted that it was important that the ECtHR be aware that the three primary procedural safeguards which would have been available in Mr Abdi’s case: Home Office review of detention; judicial oversight and bail are malfunctioning and inept for a combination of reasons described in detail in submissions.

The judgment

The Court unanimously 

1. Decides to strike the complaint in respect of Article 3 of the Convention out of its list of cases
2. Declares the complaint concerning Article 5 § 1 admissible and the remainder of the application inadmissible
3. Holds that there has been a violation of Article 5 § 1 of the Convention in relation to the applicant’s detention from 3 December 2004 until his release in mid-April 2007
4. Holds that it is not necessary to examine the complaint under Article 5 § 1 of the Convention regarding the length of the applicant’s detention during the said period
5. Holds (a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)  EUR 1,500 (one thousand five hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable; (ii)  EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.