In the aftermath of the 9/11 events in the United States and the subsequent activity of Al-Qaeda, the United Kingdom being the US ally announced to the Council of Europe the declaration of the state of emergency. This state of emergency involved amendments to the national anti-terrorism act allowing detention of foreign individuals suspected in relation to terrorism in cases where deportation from the UK is intended but where such deportation for the time being is not possible. The 11 applicants were foreign nationals who were detained under the mentioned law because they were suspected to be international terrorists. It was considered by the British authorities that these individuals could not be deported because they risked ill-treatment in their country of origin, therefore they remained detained for a prolonged period of time. Couple of years later the House of Lords proclaimed the scheme of detaining suspected international terrorists unlawful and the applicants who at that time still were detained were released.
The applicants among other things complained that their detention was unlawful.
This is one of the benchmark cases establishing a test of assessment of lawfulness in cases of detention in immigration context.
Firstly, the Court stated that for the detention to be lawful it is not necessary to prevent the individual from committing an offence or fleeing. Any deprivation of liberty in the context of immigration will be justified however only as long as the deportation or extradition proceedings are in progress and prosecuted with due diligence.
Secondly, lawfulness requires that both the substantive grounds for detention and the procedural aspects have to be prescribed by national law.
Thirdly, in order to be lawful the detention must not be arbitrary. Non-arbitrariness means that the detention had to be:
- had to be carried out in good faith
- had to be closely connected to the ground of detention
- the place and conditions of detention should have been appropriate
- the length of the detention should not have exceeded that reasonably required for the purpose pursued
In the present case:
After a careful analysis and admitting that the state of emergency existed in the United Kingdom, the Court could not find sufficient proof why the detention for security reasons would be allowed only in relation to non-nationals but not nationals of the UK. Therefore, the Court found that the derogation of the United Kingdom from the said Convention requirements, namely, the imposition of indefinite detention, which was not genuinely concerned with immigration but with national security, was disproportionate as it unjustifiably discriminated between nationals and non-nationals. Consequently, the Court found a violation of Article 5(1) in relation to numerous applicants.