CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 29 janvier 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2278F906 { margin-top:0pt; margin-left:21.3pt; margin-bottom:0pt } .sB1A2957 { width:21.41pt; display:inline-block } .s89528247 { width:217.8pt; display:inline-block } .s6D0A64B7 { width:229.16pt; display:inline-block } .sA398454 { width:178.47pt; display:inline-block } .sD6F8C4BF { width:19.4pt; display:inline-block } .s252F503A { width:211.82pt; display:inline-block } .s2342D5AA { width:207.78pt; display:inline-block } .s62153A50 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-indent:-7.05pt } .s240B8550 { width:19.4pt; text-indent:0pt; display:inline-block } .s98EC99 { width:206.47pt; text-indent:0pt; display:inline-block } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sA1F2D4C5 { margin-top:12pt; margin-left:19.85pt; margin-bottom:18pt; text-indent:-19.85pt; page-break-inside:avoid; page-break-after:avoid } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8ED1F3C2 { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s57221CB1 { margin-top:24pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s90647315 { margin-top:30pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s596249A3 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8E011338 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s56E27C8 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .sF36799E5 { width:17.6pt; display:inline-block } .s21D34249 { width:170.29pt; display:inline-block } .s576DFC5F { width:15.93pt; display:inline-block } .sAA5C5B93 { width:187.63pt; display:inline-block } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s9138CF0B { margin-top:36pt; margin-bottom:36pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }     GRAND CHAMBER             CASE OF SAADI v. THE UNITED KINGDOM     (Application no. 13229/03)                 JUDGMENT       STRASBOURG   29 January 2008     In the case of Saadi v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Christos Rozakis,   Nicolas Bratza,   Boštjan M. Zupančič,   Peer Lorenzen,   Françoise Tulkens,   Nina Vajić,   Margarita Tsatsa-Nikolovska ,   Snejana Botoucharova ,   Anatoly Kovler ,   Elisabeth Steiner ,   Lech Garlicki ,   Khanlar Hajiyev ,   Dean Spielmann ,   Ineta Ziemele ,   Isabelle Berro-Lefèvre,   Päivi Hirvelä, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 16 May and 5 December 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 13229/03) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Shayan Baram Saadi (“the applicant”), on 18 April 2003. 2.     The applicant was represented by Messrs Wilson & Co., solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office. 3.     The applicant alleged that he had been detained in breach of Article 5 §   1 and Article 14 of the Convention, and that he had not been given adequate reasons for the detention, contrary to Article 5 § 2. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). On 27 September 2005 it was declared admissible by a Chamber of that Section composed of Josep Casadevall, Nicolas Bratza, Matti Pellonpää, Rait Maruste, Kristaq Traja, Ljiljana Mijović and Ján Šikuta, judges, and Françoise Elens-Passos, Deputy Section Registrar. On 11 July 2006 a Chamber composed of the same judges, together with Lawrence Early, Section Registrar, delivered a judgment in which it held, by four votes to three, that there had been no violation of Article 5 § 1 and, unanimously, that there had been a violation of Article 5 §   2. The Chamber further held, unanimously, that it was not necessary to consider Article 14 separately, that the finding of a violation of Article 5 § 2 was sufficient just satisfaction for non-pecuniary damage, and that the respondent State should pay the applicant 1,500 euros, plus any tax that might be chargeable, for costs and expenses. 5.     On 11 December 2006, pursuant to a request by the applicant, a panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 7.     The applicant and the Government each filed their observations on the merits. In addition, third-party comments were received jointly from the AIRE Centre, the European Council on Refugees and Exiles and Liberty, and from the United Nations High Commissioner for Refugees, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 May 2007 (Rule 59 § 3).   There appeared before the Court:   (a)     for the Government Mr   J. Grainger ,   Agent , Mr   D. Pannick QC,   Mr   M. Fordham QC,   Counsel , Ms   N. Samuel , Mr   S. Barrett ,   Advisers .   (b)     for the applicant Mr   R. Scannell , Mr   D. Seddon ,   Counsel , Mr   M. Hanley , Ms   S. Ghelani ,   Advisers .   The Court heard addresses by Mr Scannell and Mr Pannick, as well as their answers to questions put by Judges Costa and Spielmann. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant, an Iraqi Kurd, was born in 1976 and now lives and works as a doctor in London. A.     The applicant’s temporary admission to the United Kingdom 10.     In December 2000 the applicant fled the Kurdish Autonomous Region of Iraq when, in the course of his duties as a hospital doctor, he treated and facilitated the escape of three fellow members of the Iraqi Workers’ Communist Party who had been injured in an attack. He arrived at Heathrow Airport on 30 December 2000 and immediately claimed asylum. 11.     The immigration officer contacted the Oakington Reception Centre (“Oakington”, see paragraphs 23-25 below) but there was no immediate room there, so the applicant was granted “temporary admission” (see paragraphs 20-21 below) to stay at a hotel of his choice and return to the airport the following morning. On 31 December 2000 he reported as required and was again granted temporary admission until the following day. When the applicant again reported as required, he was, for the third time, granted temporary admission until 10 a.m. the following day, 2   January 2001. B.     Detention at Oakington and the asylum proceedings 12.     On this last occasion, when the applicant reported as required, he was detained and transferred to Oakington. 13.     When being taken into detention, the applicant was handed a standard form, “Reasons for Detention and Bail Rights”, indicating that detention was used only where there was no reasonable alternative, and setting out a list of reasons, such as risk of absconding, with boxes to be ticked by the immigration officer where appropriate. The form did not include an option indicating the possibility of detention for fast-track processing at Oakington. 14.     On 4 January 2001 the applicant met at Oakington with a lawyer from the Refugee Legal Centre, who contacted the Home Office to enquire why the applicant was being detained and to request his release. On 5   January 2001, when the applicant had been detained for seventy-six hours, the lawyer was informed over the telephone by an immigration officer that the applicant was being detained because he was an Iraqi who fulfilled the Oakington criteria. The lawyer then wrote to the Home Office requesting the applicant’s release on the grounds that it was unlawful. When refused, the applicant applied for judicial review of the decision to detain him, claiming it was contrary to domestic law and Article 5 §§ 1 and 2 of the Convention. 15.     The applicant’s asylum claim was initially refused on 8 January. The following day he was released from Oakington and again granted temporary admission pending the determination of his appeal. On 14 January 2003 his appeal was allowed and he was granted asylum. C.     The judicial review proceedings 16.     In the proceedings for judicial review of the decision to detain the applicant, Collins J on 7 September 2001 ( R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWHC Admin 670) found that the Secretary of State had such a power to detain under the Immigration Act 1971 (see paragraph 19 below). However, relying on the Court’s judgment in Amuur v. France (25 June 1996, § 43, Reports of Judgments and Decisions 1996-III), and what he considered to be a “sensible reading” of Article 5 § 1 (f), he found that it was not permissible under the Convention to detain, solely for purposes of administrative efficiency, an asylum-seeker who had followed the proper procedures and presented no risk of absconding. Even if the detention did fall within Article 5 § 1 (f), it was disproportionate to detain asylum-seekers for the purpose of quickly processing their claims, since it had not been demonstrated that stringent conditions of residence, falling short of twenty-four hour detention, might not suffice. He also found (as did the Court of Appeal and House of Lords) that the applicant had not been given adequate reasons for his detention. 17.     On 19 October 2001 the Court of Appeal unanimously overturned this judgment ([2001] EWCA Civ 1512). Lord Phillips of Worth Matravers, Master of the Rolls, who gave the lead judgment, first considered whether the policy of detaining asylum-seekers for fast-track processing at Oakington was irrational, such as to render it unlawful under domestic law. He observed that over recent years applications for asylum to the United Kingdom and other countries had been escalating. In the United Kingdom the average monthly number of applications from July to September 1999 was nearly 7,000: 60% higher than the previous year. Coping with huge numbers of asylum-seekers posed heavy administrative problems, and it was in the interests of all asylum-seekers to have their status determined as quickly as possible. He continued: “We share the doubts expressed by Collins J as to whether detention is really necessary to ensure effective and speedy processing of asylum applications. But in expressing these doubts we ... are indulging in assumption and speculation. It is not in doubt that, if asylum applications are to be processed within the space of seven days, the applicants are necessarily going to have to be subjected to severe restraints on their liberty. In one way or another they will be required to be present in a centre at all times when they may be needed for interviews, which it is impossible to schedule to a pre-determined timetable. Would applicants voluntarily submit to such a regime, if not detained? Many no doubt would, but it is impossible to condemn as irrational the policy of subjecting those asylum-seekers whose applications appear susceptible to rapid resolution to a short period of detention designed to ensure that the regime operates without dislocation. This is not a conclusion that we have reached easily. Asylum-seekers are detained at Oakington only if it seems likely that their applications can be resolved within a week. But they must also be persons who are not expected to attempt to abscond or otherwise misbehave. At first blush it seems extreme to detain those who are unlikely to run away simply to make it easier to process their claims. But the statistics that we have set out at the start of our judgment cannot be ignored. As [the Home Office minister] observed in debate in the House of Lords on 2 November 1999, faced with applications for asylum at the rate of nearly 7,000 per month, ‘no responsible government can simply shrug their shoulders and do nothing’ ... A short period of detention is not an unreasonable price to pay in order to ensure the speedy resolution of the claims of a substantial proportion of this influx. In the circumstances such detention can properly be described as a measure of last resort. ...” The Court of Appeal next considered whether the detention fell within the first limb of Article 5 § 1 (f), and held that the right to liberty in Article   5 § 1 (f) was intended to preserve the sovereign power of member States to decide whether to allow aliens to enter their territories on any terms whatsoever and that detention of an alien would be covered by the sub-paragraph unless and until entry was authorised, subject to the proviso, derived from Chahal v. the United Kingdom (15 November 1996, Reports 1996-V) that the asylum or deportation procedure should not be prolonged unreasonably. 18.     On 31 October 2002 the House of Lords unanimously dismissed the applicant’s appeal ([2002] UKHL 41). Having taken note of evidence that the applications of approximately 13,000 asylum-seekers a year were processed at Oakington, which entailed scheduling up to 150 interviews a day, Lord Slynn of Hadley, with whom the other Law Lords agreed, held as follows: “In international law the principle has long been established that sovereign States can regulate the entry of aliens into their territory. ... This principle still applies subject to any treaty obligation of a State or rule of the State’s domestic law which may apply to the exercise of that control. The starting point is thus in my view that the United Kingdom has the right to control the entry and continued presence of aliens in its territory. Article 5 (1) (f) seems to be based on that assumption. The question is therefore whether the provisions of para. 1 (f) so control the exercise of that right that detention for the reasons and in the manner provided for in relation to Oakington are in contravention of the Article so as to make the detention unlawful. ... In my view it is clear that detention to achieve a quick process of decision-making for asylum-seekers is not of itself necessarily and in all cases unlawful. What is said, however is that detention to achieve speedy process ‘for administrative convenience’ is not within para. 1 (f). There must be some other factor which justifies the exercise of the power to detain such as the likelihood of the applicant absconding, committing a crime or acting in ways not conducive to the public good. ... It is ... to be remembered that the power to detain is to ‘prevent’ unauthorised entry. In my opinion until the State has ‘authorised’ entry the entry is unauthorised. The State has power to detain without violating Article 5 until the application has been considered and the entry ‘authorised’. ... There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5 (1) (f), ‘detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control’. ... The need for highly structured and tightly managed arrangements, which would be disrupted by late[ness] or non-attendance of the applicant for interview, is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions. ... It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting as I do that the arrangements made at Oakington provide reasonable conditions, both for individuals and families and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Immigration Act 1971 1.     Detention 19.     The Immigration Act 1971 (“the 1971 Act”), Schedule 2, paragraph   2, entitles an immigration officer to examine any person arriving in the United Kingdom to determine whether he or she should be given leave to enter. Paragraph 16(1) provides: “A person who may be required to submit to examination under paragraph 2 ... may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.” Paragraphs 8, 9 and 10 enable an immigration officer to remove those refused leave to enter or illegal entrants and paragraph 16(2) of Schedule 2 (as substituted by the Immigration and Asylum Act 1999 – “the 1999 Act”) provides: “If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 ... that person may be detained under the authority of an immigration officer pending – (a)     a decision whether or not to give such directions; (b)     his removal in pursuance of such directions.” 2.     Temporary admission 20.     Paragraph 21(1) of Schedule 2 to the 1971 Act enables an immigration officer to grant temporary admission to the United Kingdom to any person liable to be detained. Paragraph 21(2) (as amended by the 1999 Act) provides: “So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.” Sub-paragraphs 2(A) to 2(E) give powers to the Secretary of State to make regulations placing residence restrictions on persons granted temporary admission. 21.     Section 11 of the 1971 Act provides as follows: “A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention ...” In Szoma (FC) v. Secretary of State for the Department of Work and Pensions [2005] UKHL 64, the House of Lords held that the purpose of section 11 of the 1971 Act was to exclude a person temporarily admitted from the rights available to those granted leave to enter, in particular the right to seek an extension of leave to remain, but that an alien granted temporary admission was nonetheless “lawfully present” in the United Kingdom for the purposes of social security entitlement. B.     Pre-Oakington policy on detention and temporary admission 22.     Before March 2000, when the opening of Oakington was announced (see paragraph 23 below), the Home Office policy on the use of detention was set out in a White Paper (policy paper) published in 1998 entitled “Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum” (Cm 4018) in these terms (paragraph 12.3): “The government has decided that, whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances: –     where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; –     initially, to clarify a person’s identity and the basis of their claim; –     where removal is imminent. In particular, where there is a systematic attempt to breach the immigration control, detention is justified wherever one or more of those criteria is satisfied.” In paragraph 12.11 of the White Paper it was made clear that detention should be used for the shortest possible time and paragraph 12.7 required written reasons to be given at the time of detention. C.     The Oakington Reception Centre 23.     On 16 March 2000 the Minister, Barbara Roche MP, announced a change of the above-mentioned policy in a written answer to a parliamentary question, as follows: “Oakington Reception Centre will strengthen our ability to deal quickly with asylum applications, many of which prove to be unfounded. In addition to the existing detention criteria, applicants will be detained at Oakington where it appears that their applications can be decided quickly, including those which may be certified as manifestly unfounded. Oakington will consider applications from adults and families with children, for whom separate accommodation is being provided, but not from unaccompanied minors. Detention will initially be for a period of about seven days to enable applicants to be interviewed and an initial decision to be made. Legal advice will be available on site. If the claim cannot be decided in that period, the applicant will be granted temporary admission or, if necessary in line with existing criteria, moved to another place of detention. If the claim is refused, a decision about further detention will similarly be made in accordance with existing criteria. Thus, detention in this latter category of cases will normally be to effect removal or where it has become apparent that the person will fail to keep in contact with the Immigration Service.” 24.     The decision whether an asylum claim is suitable for decision at Oakington is primarily based on the claimant’s nationality. According to the Home Office’s “Operational Enforcement Manual”, detention at Oakington should not be used for, inter alia , “any case which does not appear to be one in which a quick decision can be reached”; minors; disabled applicants; torture victims; and “any person who gives reason to believe that they might not be suitable for the relaxed Oakington regime, including those who are considered likely to abscond”. 25.     The detention centre is situated in former army barracks near Oakington, Cambridgeshire. It has high perimeter fences, locked gates and twenty-four hour security guards. The site is large, with space for outdoor recreation and social gathering and on-site legal advice is available. There is a canteen, a library, a medical centre, a visiting room and a religious-observance room. Applicants and their dependents are generally free to move about the site, but must eat and return to their rooms at fixed times. Male applicants are accommodated separately from women and children and cannot stay with their families overnight. Detainees must open their correspondence in front of the security guards and produce identification if requested, comply with roll-calls and other orders. III.     RELEVANT INTERNATIONAL LAW DOCUMENTS A.     International treaties, declarations, conclusions, guidelines and reports 1.     Vienna Convention on the Law of Treaties (1969) 26.     The Vienna Convention on the Law of Treaties, which came into force on 27 January 1980, provides in Article 31: General rule of interpretation “1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2.     The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a)     any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b)     any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.     There shall be taken into account, together with the context: (a)     any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b)     any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c)     any relevant rules of international law applicable in the relations between the parties. 4.     A special meaning shall be given to a term if it is established that the parties so intended.” 27.     Article 32 provides: Supplementary means of interpretation “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a)     leaves the meaning ambiguous or obscure; or (b)     leads to a result which is manifestly absurd or unreasonable.” 28.     Article 33 provides: Interpretation of treaties authenticated in two or more languages “1.     When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. ... 3.     The terms of the treaty are presumed to have the same meaning in each authentic text. 4.     Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” 2.     Universal Declaration of Human Rights (UDHR) 29.     The UDHR provides in Article 3 for the right to life, liberty and security; in Article 9 for the right not to be arbitrarily arrested, detained or exiled; and in Article 13 for the right to freedom of movement and residence. 30.     In Article 14 § 1 it declares that “everyone” has the fundamental right “to seek and to enjoy in other countries asylum from persecution”. 3.     International Covenant on Civil and Political Rights (ICCPR) 31.     Article 9 § 1 of the ICCPR provides: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” In its case-law on this Article, the United Nations Human Rights Committee (“the Human Rights Committee”) has held, inter alia , that the failure by the immigration authorities to consider factors particular to the individual, such as the likelihood of absconding or lack of cooperation with the immigration authorities, and to examine the availability of other, less intrusive means of achieving the same ends might render the detention of an asylum-seeker arbitrary (see A. v. Australia , Communication no. 560/1993, CCPR/C/59/D/560/1993, and C. v. Australia , Communication no. 900/1999, CCPR/C/76/D/900/1999). In A. v. Australia the Human Rights Committee observed that: “the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.” 32.     Article 12 of the ICCPR protects the right of freedom of movement to those “lawfully within the territory”. Under the case-law of the Human Rights Committee, a person who has duly presented an application for asylum is considered to be “lawfully within the territory” (see Celepi v. Sweden , Communication no. 456/1991, CCPR/C/51/D/456/1991). 4.     Convention relating to the Status of Refugees (Geneva, 1951: “the Refugee Convention”) 33.     The Refugee Convention, which came into force on 22 April 1954, together with its 1967 Protocol, generally prohibits Contracting States from expelling or returning a person with a well-founded fear of persecution to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (Articles 1 and 33). Under Article 31: Refugees unlawfully in the country of refuge “1.     The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2.     The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.” 34.     On 13 October 1986, the Executive Committee of the United Nations High Commissioner for Refugees’ Programme adopted the following Conclusion relating to the detention of asylum-seekers (no. 44 (XXXVII) – 1986). The Conclusion was expressly approved by the General Assembly on 4 December 1986 (Resolution 41/124) and reads as follows: “The Executive Committee, Recalling Article 31 of the 1951 Convention relating to the Status of Refugees. Recalling further its Conclusion no. 22 (XXXII) on the treatment of asylum-seekers in situations of large-scale influx, as well as Conclusion no. 7 (XXVIII), paragraph   (e), on the question of custody or detention in relation to the expulsion of refugees lawfully in a country, and Conclusion no. 8 (XXVIII), paragraph (e), on the determination of refugee status. Noting that the term ‘refugee’ in the present Conclusions has the same meaning as that in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, and is without prejudice to wider definitions applicable in different regions. (a)     Noted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation; (b)     Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order; (c)     Recognised the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum-seekers from unjustified or unduly prolonged detention; (d)     Stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum-seekers, and that of other aliens; (e)     Recommended that detention measures taken in respect of refugees and asylum ‑ seekers should be subject to judicial or administrative review; (f)     Stressed that conditions of detention of refugees and asylum-seekers must be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered; (g)     Recommended that refugees and asylum-seekers who are detained be provided with the opportunity to contact the Office of the United Nations High Commissioner for Refugees or, in the absence of such office, available national refugee assistance agencies; (h)     Reaffirmed that refugees and asylum-seekers have duties to the country in which they find themselves, which require in particular that they conform to its laws and regulations as well as to measures taken for the maintenance of public order; (i)     Reaffirmed the fundamental importance of the observance of the principle of non-refoulement and in this context recalled the relevance of Conclusion no. 6 (XXVIII).” 35.     To give effect to the above Conclusion, the United Nations High Commissioner for Refugees (UNHCR) published Guidelines on the detention of asylum-seekers in 1995, which it revised and reissued on 10   February 1999. The Guidelines made it clear that the detention of asylum-seekers was “inherently undesirable”. Guideline 3 provides that such detention: “may exceptionally be resorted to for the reasons set out below ... as long as this is ... in conformity with general norms and principles of international human rights law (including Article 9 ICCPR) ... Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements) ... these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.” The Guideline continued: “... detention of asylum-seekers may only be resorted to, if necessary: (i)     to verify identity. This relates to those cases where identity may be undetermined or in dispute; (ii)     to determine the elements on which the claim for refugee status or asylum is based. This statement means that the asylum-seeker may be detained exclusively for the purpose of a preliminary interview to identify the basis of the asylum claim. This would involve obtaining the essential facts from the asylum-seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim. This exception to the general principle cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time; (iii)     in cases where asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum. What must be established is the absence of good faith on the part of the applicant to comply with the verification of identity process. ... Asylum-seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason ...” 36.     On 18 December 1998 the United Nations Working Group on Arbitrary Detention, reporting on its visit to the United Kingdom (E/CN.4/1999/63/Add.3), recommended that the government should: “ensure that detention of asylum-seekers is resorted to only for reasons recognised as legitimate under international standards and only when other measures will not suffice ... Alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention. The detaining authorities must assess a compelling need to detain that is based on the personal history of each asylum-seeker ...” B.     Council of Europe texts 37.     In 2003 the Committee of Ministers of the Council of Europe adopted a Recommendation (Rec (2003)5) that stated, inter alia : “The aim of detention is not to punish asylum-seekers. Measures of detention ... may be resorted to only in the following situations: (a) when their identity, including nationality, has in case of doubt to be verified, in particular when asylum-seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state; (b) when elements on which the asylum claim is based have to be determined which, in the absence of detention, could not be obtained; (c) when a decision needs to be taken on their right to enter the territory of the state concerned; or (d) when protection of national security and public order so requires. ... Measures of detention of asylum-seekers should be applied only after a careful examination of their necessity in each individual case. Those 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 and by the case-law of the European Court of Human Rights. ... Alternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention. ...” 38.     On 8 June 2005, the Council of Europe Commissioner for Human Rights, in his report on his visit to the United Kingdom (CommDH(2005)6), noted that: “I would like to raise a number of points regarding [asylum] proceedings. The first concerns the frequent resort to detention for asylum-seekers at the very outset of proceedings. Whilst detention is not automatic in such proceedings, there would appear to be a strong presumption in its favour; mooted plans to increase the asylum detention estate in precisely this area suggest that this is the direction in which the UK is headed. The UK authorities have indicated to me that the UK courts have approved detention for the sole purpose of processing asylum applications. I do not exclude the possibility of detention being appropriate in certain circumstances, but I do not believe that this would be an appropriate rule. Open processing centres providing on-site accommodation and proceedings are, I believe, a more appropriate solution for the vast majority of applicants whose requests are capable of being determined rapidly.” C.     European Union instruments 39.     The Charter of Fundamental Rights of the European Union (2000) proclaims in Article 18 that “the right to asylum shall be guaranteed with due respect to the rules of the [Refugee Convention]”. 40.     Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member States for granting and withdrawing refugee status (OJ L 326), which must be transposed into member States’ national law by 1 December 2008, provides in Article 7: “Applicants shall be allowed to remain in the member State, for the sole purpose of the procedure, until such time as the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.” The Directive further provides in Article 18: “1.     Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum. 2.     Where an applicant for asylum is held in detention, member States shall ensure that there is a possibility of speedy judicial review.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 41.     The applicant alleged that he had been detained at Oakington in breach of Article 5 § 1 of the Convention, which provides: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; (b)     the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d)     the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e)     the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A.     Whether the applicant was deprived of his liberty 42.     It is not disputed by the Government that the applicant’s detention at Oakington amounted to a deprivation of liberty within the meaning of Article 5 § 1. The Grand Chamber considers it clear that, given the degree of confinement at Oakington, Mr Saadi was deprived of his liberty within the meaning of Article 5 § 1 during the seven days he was held there (see, for example, Engel and Others v. the Netherlands , 8 June 1976, §§ 60 ‑ 66, Series A no. 22). 43.     Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty, and no deprivation of liberty will be lawful unless it fa