ECHR finds UK in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms for depriving an asylum seeker of their liberty unlawfully

Case of V.M. v United Kingdom (Application No. 49734/12) [2016] ECHR (1 September 2016)

Summary

The European Court of Human Rights (“the Court”) finds in favour of a Nigerian asylum seeker, who was detained pending deportation, against the United Kingdom and Northern Ireland for violations of article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which enshrines the right to liberty and security of the person.

Facts

The applicant, a Nigerian national, alleged that she entered the United Kingdom on 18 November 2003. She claimed asylum on 29 January 2004 on the basis that if she returned to Nigeria the wife of a man that had allegedly sexually assaulted her would kill her. The Secretary of State rejected her claims for asylum on 26 April 2004. On 21 July 2008, the applicant was sentenced to 12 months’ imprisonment for the offence of child cruelty and the failure to surrender to bail. During the time from her failed claims of asylum and the date of sentencing, the applicant had plead guilty to another count of child cruelty, absconded for over two years, gave birth to her second child and was arrested and charged with the possession of false documentation and the intention to commit fraud. Various reports on the applicant’s mental health were produced during her detainment indicating that she suffered from recurrent depressive disorder and emotionally unstable personality disorder.

On 5 August 2008, the United Kingdom Border Agency decided to deport the applicant and she remained in detention under immigration powers when her criminal sentence ended on 8 August 2008. The applicant was then held in immigration detention by in the United Kingdom between 8 August 2008 and 22 July 2010.

During this time the applicant appealed against her deportation, lodged judicial review claims, and was refused bail on the grounds that she could not be relied on to comply with bail conditions and represented a danger to the community.

On 19 July 2009 the applicant made representations asking that the decision to deport be reversed, or alternatively, that the representations be treated as a fresh claim for asylum. On 14 December 2009, the Secretary of State decided that the applicant did not meet the conditions for a new claim of asylum. The Secretary of State echoed this decision on 26 April 2010 after the applicant made similar representations.

On 6 August 2012, the applicant lodged the following complaints in the Court against the United Kingdom:

      i.        The applicant’s detention from 8 August 2008 to 22 July 2010 had breached article 5 § 1 of the Convention (unlawful deprivation of liberty) as it had not been lawful under domestic law and it had been unreasonable, disproportionate and arbitrary.

     ii.        The nominal damages awarded to the applicant violated article 5 § 5 of the Convention and/or article 13 read together with article 5 § 1.

    iii.        There was a violation of articles 3 and 8 of the Convention as the applicant’s ongoing detention deteriorated her mental health (leading to episodes of self-harm and a number of suicide attempts).

Decision

The court unanimously declared that the complaint under article 5 § 1 of the Convention was admissible, and held that there was a violation of the aforementioned Article between 19 June and 14 December 2009. The Court found that the authorities did not conduct the proceedings during this time with due diligence, as they agreed with the Court of Appeal’s characterisation of this period as a ‘lengthy delay’. The remainder of the application was unanimously declared inadmissible and was dismissed accordingly.

The principles in Chahal v United Kingdom [1996] XXIII Eur Court HR 413 were applied in this case to ascertain whether the duration of the detention was beyond what was reasonably required for the purpose of deportation. It states that proportionality applies to detention only to the extent that it should not continue for an unreasonable length of time. Deprivation of liberty under the Convention is therefore lawful as long as deportation proceedings are in progress. However, if the proceedings are not prosecuted with due diligence, the deprivation of liberty ceases to be permissible.

The Court held that it was incumbent on the authorities to act with due diligence so that the applicant was detained for the shortest amount of time, especially due to the deterioration of the applicant’s mental health. The lengthy delay between 19 June and 14 December 2009 was held to be not insignificant in relation to the overall length of the applicant’s detention and her mental health, thus finding a breach of article 5 § 1 of the Convention.

Commentary

In ruling that the authorities did not act with due diligence in regard to the ‘lengthy delay’ from 19 June 2009 to 14 December 2009 in deciding that the applicant’s new representations did not meet the conditions for a new claim for asylum, the Court gave due regard to the overall length of the detention and the applicant’s mental health. This case shows the value of a domestic Bill of Rights and access to a human rights court, such as the European Court of Human Rights, which can order compensation. Detainees in Australian immigration do not have access to such legal avenues of appeal. In Australia the average time people are held in detention is 469 days as at 30 November 2016. At that time, 606 had been held for over one year, with 333 of those people being held in immigration detention for more than 2 years.

Note: at time of writing, there was a request to the Grand Chamber pending.

The full text of the decision can be found here.

Chenez Dyer Bray is an incoming 2017 Editor of the Melbourne University Law Review.