CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 mai 2016

.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 } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s5243C837 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s28BDCFEA { width:6.53pt; display:inline-block } .s9AD86A96 { width:149.54pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sDC434588 { width:212.56pt; display:inline-block }       FIRST SECTION             CASE OF J.N. v. THE UNITED KINGDOM   (Application no. 37289/12)               JUDGMENT         STRASBOURG   19 May 2016     FINAL   19/08/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of J.N. v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mirjana Lazarova Trajkovska, President,   Kristina Pardalos,   Linos-Alexandre Sicilianos,   Paul Mahoney,   Aleš Pejchal,   Robert Spano,   Armen Harutyunyan, judges, and Abel Campos, Section Registrar, Having deliberated in private on 26 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 37289/12) 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 Iranian national, Mr J.N. (“the applicant”), on 25 May 2012. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicant, who had been granted legal aid, was represented by Ms   S. Willman of Deighton Pierce Glynn Solicitors, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. MacMillan of the Foreign and Commonwealth Office. 3.     On 12 February 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background 4.     The applicant was born in 1971 and lives in Barking. 5.     The applicant arrived in the United Kingdom on 7 January 2003. He claimed asylum on 15 January 2003 but his claim was refused by the Secretary of State for the Home Department on 15 March 2003 and his appeal against that decision was refused on 1 October 2003. 6.     On 13 February 2004 the applicant was convicted of indecent assault in relation to an incident involving two fifteen-year old girls and was sentenced to twelve months’ imprisonment. He was released on licence on 7   September 2004 but his licence was revoked on 24 September that year because he failed to comply with the terms of the licence. 7.     The applicant was re-arrested on 16 January 2005. B.     The first period of immigration detention 8.     On 31 March 2005 the applicant was served with the decision to make a deportation order. On the same day he was detained pursuant to the Secretary of State’s powers under paragraph 2(3) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The deportation order was signed on 4 August 2005 and served on him on 12   August 2005. 9.     On 5 September 2005 the applicant indicated that he wished to return to Iran. One month later an application was submitted to the Iranian authorities for an emergency travel document to enable him to travel there. However, the application was rejected by the Iranian authorities on 22   November 2005. 10.     The applicant was subsequently interviewed at the Iranian Embassy on 15 September 2006. However, two days later the Embassy informed his solicitors that they could not issue a travel document as no formal identification of the applicant had been provided. On 17 October 2006 the Home Office was informed that the Iranian Embassy required a birth certificate before any travel documents could be issued. It appears that the Home Office thereafter proposed to submit copy documents. The Iranian Embassy initially agreed to this proposal, but later refused. 11 .     On 13 September 2007 the applicant commenced judicial review proceedings challenging his continued detention. 12.     On 6 November 2007 the Iranian Embassy agreed to issue a travel document provided that the applicant was prepared to sign a “disclaimer” consenting to his return. 13.     On 11 December 2007 the Administrative Court ordered the applicant’s release from detention subject to a number of conditions, including that he be subject to a curfew; that he remain at a fixed address; that he report on a weekly basis to the nearest Border and Immigration Agency office; and that he take the steps necessary to obtain travel documents. 14.     The applicant refused to sign a “disclaimer” on 14 December 2007. Although he was released on 17 December 2007, four days later the matter was brought back to the Administrative Court and a different judge discharged the previous order on account of his failure to comply with the conditions for release (namely, that he take the steps necessary to obtain travel documents). As a consequence, the applicant was once again liable to detention. 15.     On 27 December 2007 Group 4 Securicor reported that they had on two occasions attempted to visit the applicant at his nominated address to install the equipment required for electronic tagging. Both visits took place during the hours of curfew. Very shortly afterwards the applicant reported a different address to the immigration authorities so that they could continue to communicate with him. C.     The second period of immigration detention 16.     On 8 January 2008 an authority was issued for the applicant’s detention and on 14 January he was detained while reporting to the immigration authorities. 17.     By February 2008 the authorities had been alerted to the fact that the applicant was showing some signs of psychological disturbance, had been diagnosed with “reactive depression” and was receiving medication for his psychological symptoms. 18.     On 26 February 2008 the claim for judicial review launched on 13   September 2007 was dismissed. 19.     The applicant attended at the Iranian Embassy on 7 April 2008 but no travel document was issued. On 4 June 2008 he again refused to sign a disclaimer. 20 .     On 25 July 2008 the applicant was alleged to have displayed “inappropriate behaviour” to a female member of immigration staff at a detention centre. His behaviour was also alleged to have been disruptive. 21.     In or around September 2008 the immigration authorities discussed the possibility of prosecuting the applicant under section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for failing without reasonable excuse to comply with the Secretary of State’s requirement to take specified action to enable a travel document to be obtained. However, no prosecution was ever mounted. 22.     On 13 October 2008 the applicant wrote to the United Kingdom Border Agency, indicating that he would be willing to return to Iran if he were to be compensated for the periods of detention which he had undergone. However, the Border and Immigration Agency refused to agree to any such request. 23.     On 6 January 2009, 6 February 2009, March 2009, May 2009, June 2009 and September 2009 the authorities made further attempts to engage the applicant in a voluntary return. However, on each occasion he indicated that he was not willing to co-operate or sign a disclaimer. 24.     On 17 March 2009, 9 June 2009 and 7 October 2009 the applicant made three applications for bail to the Asylum and Immigration Tribunal. On each occasion the application was dismissed. The reasons given for the dismissal of the applications included the fact that the applicant could end his own detention by signing the disclaimer. D.     Judicial review proceedings 25 .     The applicant’s solicitors wrote a letter before action on 21 October 2009 and proceedings were issued on 6 November. On 4 December 2009 the High Court granted the applicant permission to apply for judicial review and the Home Office was ordered to release him on bail within forty-eight hours. 26.     At the hearing counsel for the applicant argued that both periods of the applicant’s detention could properly be looked at as being unlawful, although he focused his attention on the second period. Counsel for the Secretary of State for the Home Department argued – and the court appears to have accepted – that the first period could not be in question legally, since the applicant had been released for one month pursuant to a court order and the order enforcing release had been discharged. However, he conceded that when considering the lawfulness of the second period of detention, the first period of detention would have to be taken into account. 27.     In considering the lawfulness of the second period of detention, the Administrative Court judge recalled that the authorities should be free to make strenuous efforts to obtain the assent of a person they proposed to deport. If they were unsuccessful, they could and should seek any way around his consent, for example by persuading the country of origin to issue a travel document without a disclaimer. However, the judge noted that the law did not permit the indefinite detention of someone who was never going to consent to deportation. 28.     Bearing that in mind, the judge considered the history of the applicant’s second period of detention. He observed that during this period there had been no change in approach to the applicant, no prosecution had been brought under section 35 of the 2004 Act, and there had been no further approach to the Iranian authorities to see if they would change their position. 29.     The judge then had regard to the relevant principles of domestic law set out in R v. The Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and in the guidance given by the Court of Appeal in both R (A) v. Secretary of State for the Home Department [2007] EWCA Civ   804 and WL (Congo) v. Secretary of State for the Home Department [2010] EWCA Civ 111 (see paragraphs 35-36 below). Applying those principles and the relevant guidance, the judge noted that the most important factor justifying detention was the applicant’s refusal to sign the relevant disclaimer. He further noted that lengthy detention could be justified by the applicant’s offending, by the realistic fear that he would further offend and by the genuine and reasonable concern that he might abscond. However, even given those factors, the judge found that there had to come a time when such a sterile tactic as merely sitting and waiting while repeatedly urging the applicant to change his mind, in full expectation that he would not, ceased to be detention genuinely for the purpose of deportation. The judge therefore concluded that “the woeful lack of energy and impetus” applied to this case from at least the middle of 2008 meant that it could not possibly be said that the Secretary of State on this occasion had complied with the obligation in Hardial Singh to act with “reasonable diligence and expedition”. He therefore held that the applicant’s detention had been unlawful from 14 September 2009. 30.     With regard to the question of whether there should be guidance on how long it might be appropriate to detain an individual, the judge made the following observations: “It cannot be right for the Secretary of State to be led to believe, by looking at a digest of the range of decisions that have been taken, that it is safe to detain for X months or X years. Equally, it cannot be right for those who are in the positon of being detained for considerable periods, stubbornly refusing to comply with the authority’s requests to facilitate voluntary repatriation, to be put in a position of saying, ‘If I hold on another year, or two years, or three years, then I am all right’. A tariff is repugnant and wrong, and it seems to me that it would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases.” 31.     In a decision dated 13 May 2011 the applicant was awarded GBP   6,150 in damages. 32.     The applicant sought permission to appeal. On 31 October 2011 permission to appeal was refused. However, on 7 November 2012 the applicant renewed his application for permission to appeal and on 10   February 2012 he was granted permission to appeal only in respect of the quantum of damages awarded. The outcome of that appeal is unknown. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Hardial Singh principles 33.     Limitations on the power to detain an individual in respect of whom a deportation order is in force have been established by the domestic courts. Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704: “i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii. The deportee may only be detained for a period that is reasonable in all the circumstances; iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv. The Secretary of State should act with reasonable diligence and expedition to effect removal.” B .     R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804 34.     In R(A ) Lord Justice Toulson, giving the lead judgment of the Court of Appeal, ruled as follows: ʺI accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr   Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.ʺ C.     Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12 35.     In the case of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12 the Supreme Court briefly considered the Hardial Singh principles. In his leading judgment, which was accepted by the majority of the court, Lord Dyson found that in assessing the reasonableness of the length of the period of detention, the risk of re-offending would be a relevant factor. In this regard, he noted that if a person re-offended, there was a risk that he would abscond either to evade arrest or, if he was arrested and prosecuted, that he would receive a custodial sentence. Either way, his re-offending would impede his deportation. He also considered that the pursuit of legal challenges by the foreign national prisoner could be relevant. However, he considered the weight to be given to the time spent on appeals to be fact-sensitive. In this regard, he noted that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one. 36.     Lord Dyson further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, he warned against the danger of drawing such an inference in every case. On the contrary, he considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not. 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. If return was possible, but the detained person was not willing to go, it would be necessary to consider whether or not he had issued proceedings challenging his deportation. If he had done so, it would be entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings, unless they were an abuse of process, and his refusal to return voluntarily would be irrelevant. If there were no outstanding legal challenges, the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of State to continue to detain until deportation could be effected, otherwise the refusal would justify as reasonable any period of detention, however long. D.     R (Muqtaar) v. the Secretary of State for the Home Department [2013] 1 WLR 649 37.     In R (Muqtaar) the Court of Appeal held that “there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal with occur at all”. E.     R (on the application of Nouazli) v. Secretary of State for the Home Department [2016] UKSC 16 38.     In this recent judgment the Supreme Court considered, inter alia , whether the absence of a time-limit rendered the applicant’s detention unlawful under EU law. The applicant had argued that the absence of time ‑ limits was inconsistent both with the general EU law provisions of legal certainty and proportionality, and with this Court’s case-law under Article 5 § 1 (f) of the Convention. 39.     Having found nothing in this Court’s case-law to support the contention that mandatory time-limits were a necessary component of the “quality of law” for the purposes of Article 5 § 1(f) or otherwise a general requirement of that provision, Lord Clarke (with whom the other members of the Supreme Court agreed) held that: “The courts have recognised that there are sound policy reasons for a flexible and fact-sensitive approach. I find nothing in the judgments of the ECtHR which undermines the Hardial Singh approach to the duration of detention. In this regard our attention was drawn to R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, para 94, where Lord Kerr observed that Hardial Singh principles are ‘more favourable to detainees than Strasbourg requires.’ ... This is not to say that the absence of time limits is not a relevant factor in deciding in a particular case. This is shown in a number of cases to which we were referred. See, for example six cases against Turkey, namely Abdolkhani and Karimnia v Turkey (Application No 30471/08) (unreported) given 22 September 2009, para 135, applied in ZNS v Turkey (Application No 21896/08) (unreported) given 19 January 2010, para   56; Tehrani v Turkey (Application Nos 32940/08, 41626/08 and 43616/08) (unreported) given 13 April 2010, para 70; Charahili v Turkey (Application No   46605/07) (unreported) given 13 April 2010, para 66; Alipour and Hosseinzadgan v Turkey (Application Nos 6909/08, 12792/08 and 28960/08) (unreported) given 13   July 2010, para 57; and Dbouba v Turkey (Application No 15916/09) (unreported) given 13 July 2010, para 50 ... See also Mathloom v Greece (Application No 48883/07) (unreported) given 24   April 2012 and Massoud v Malta (Application No 24340/08) (unreported) given 27   July 2010 to much the same effect. Again, the absence of a time limit was treated as a relevant factor but no more. In each case the ECtHR focused on the importance of having a procedure capable of avoiding the risk of arbitrary detention. In my judgment in the instant case there is in place a clear statutory framework which involves appropriate judicial scrutiny and the consideration of the guidelines referred to above. In short, each case depends upon its particular facts.” III.     RELEVANT COUNCIL OF EUROPE INSTRUMENTS A.     Twenty Guidelines on Forced Return 40.     On 4 May 2005 the Committee of Ministers of the Council of Europe adopted twenty guidelines on forced return. Chapter III of this instrument concerns detention pending removal. The relevant guidelines are as follows: “ Guideline 6. Conditions under which detention may be ordered 1. A person may only be deprived of his/her liberty, with a view to ensuring that a removal order will be executed, if this is in accordance with a procedure prescribed by law and if, after a careful examination of the necessity of deprivation of liberty in each individual case, the authorities of the host State have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures such as supervision systems, the requirement to report regularly to the authorities, bail or other guarantee systems. 2. The person detained shall be informed promptly, in a language which he/she understands, of the legal and factual reasons for his/her detention, and the possible remedies; he/she should be given the immediate possibility of contacting a lawyer, a doctor, and a person of his/her own choice to inform that person about his/her situation. Guideline 7. Obligation to release where the removal arrangements are halted Detention pending removal shall be justified only for as long as removal arrangements are in progress. If such arrangements are not executed with due diligence the detention will cease to be permissible. Guideline 8. Length of detention 1. Any detention pending removal shall be for as short a period as possible. 2. In every case, the need to detain an individual shall be reviewed at reasonable intervals of time. In the case of prolonged detention periods, such reviews should be subject to the supervision of a judicial authority. Guideline 9. Judicial remedy against detention 1. A person arrested and/or detained for the purposes of ensuring his/her removal from the national territory shall be entitled to take proceedings by which the lawfulness of his/her detention shall be decided speedily by a court and, subject to any appeal, he/she shall be released immediately if the detention is not lawful. 2. This remedy shall be readily accessible and effective and legal aid should be provided for in accordance with national legislation.” B.     Parliamentary Assembly Resolution 1707 on the detention of asylum seekers and irregular migrants in Europe 41.     Paragraph 9 of this Resolution, which was adopted by the Assembly on 28 January 2010, provides as follows: “... the Assembly calls on Member States of the Council of Europe in which asylum seekers and irregular migrants are detained to comply fully with their obligations under international human rights and refugee law, and encourages them to: 9.1. follow 10 guiding principles governing the circumstances in which the detention of asylum seekers and irregular migrants may be legally permissible. These principles aim to ensure that: 9.1.1. detention of asylum seekers and irregular migrants shall be exceptional and only used after first reviewing all other alternatives and finding that there is no effective alternative; ... 9.1.3. detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review; 9.1.4. detention shall be ordered only for the specific purpose of preventing unauthorised entry into a state’s territory or with a view to deportation or extradition; 9.1.5. detention shall not be arbitrary; 9.1.6. detention shall only be used when necessary; 9.1.7. detention shall be proportionate to the objective to be achieved; ... 9.1.10. detention must be for the shortest time possible; 9.2. put into law and practice 15 European rules governing minimum standards of conditions of detention for migrants and asylum seekers to ensure that: ... 9.2.3. all detainees must be informed promptly, in simple, non-technical language that they can understand, of the essential legal and factual grounds for detention, their rights and the rules and complaints procedure in detention; during detention, detainees must be provided with the opportunity to make a claim for asylum or complementary/subsidiary protection, and effective access to a fair and satisfactory asylum process with full procedural safeguards; ... 9.2.9. detainees shall be guaranteed effective access to legal advice, assistance and representation of a sufficient quality, and legal aid shall be provided free of charge; 9.2.10. detainees must be able periodically to effectively challenge their detention before a court and decisions regarding detention should be reviewed automatically at regular intervals; ...” IV.     RELEVANT EU LAW A.     The Returns Directive 42.     Article 15 of Chapter IV of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Returns Directive”) concerns detention for the purposes of removal: “1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio . In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries.” 43.     The United Kingdom has “opted out” of the Returns Directive, so that it is not bound by the specific requirements, including time-limits, of the system imposed by the Directive. B.     Case-law of the Court of Justice of the European Union 1.     Saïd Shamilovich Kadzoev , Case C-357/09 PPU 44 .     Following a preliminary reference, the Court of Justice of the European Union (Grand Chamber), in its judgment of 30 November 2009 considered the meaning of a “reasonable prospect of removal” under Article   15 of the Returns Directive: “63 As regards Questions 3(a) and (b), it should be pointed out that, under Article   15(4) of Directive 2008/115, detention ceases to be justified and the person concerned must be released immediately when it appears that, for legal or other considerations, a reasonable prospect of removal no longer exists. 64 As is apparent from Article 15(1) and (5) of Directive 2008/115, the detention of a person for the purpose of removal may only be maintained as long as the removal arrangements are in progress and must be executed with due diligence, provided that it is necessary to ensure successful removal. 65 It must therefore be apparent, at the time of the national court’s review of the lawfulness of detention, that a real prospect exists that the removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6) of Directive 2008/115, for it to be possible to consider that there is a ‘reasonable prospect of removal’ within the meaning of Article 15(4) of that directive. 66 Thus a reasonable prospect of removal does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods. 67 Consequently, the answer to Questions 3(a) and (b) is that Article 15(4) of Directive 2008/115 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal, and that that reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods.” 2.     J. N. v. Staatssecretaris voor Veiligheid en Justitie, Case C‑601/15 PPU 45.     Following a preliminary reference concerning the interpretation of Article 8(3) of Directive 2013/33/EU (“the Receptions Directive”), the Court of Justice of the European Union (Grand Chamber), in its judgment of 16 February 2016, made the following comments in respect of the detention of persons who have made applications for international protection: “Similarly, Article 9(1) of Directive 2013/13 provides that an applicant is to be detained only for as short a period as possible and may be kept in detention only for as long as the grounds set out in Article 8(3) of that directive are applicable. Moreover, when a decision is taken to detain an applicant, significant procedural and legal safeguards must be observed. Thus, under paragraphs 2 and 4 of Article 9 of Directive 2013/13, the decision must state, in writing, the reasons in fact and in law on which it is based and certain information must be provided to the applicant in a language he understands or is reasonably supposed to understand. Paragraphs 3 and 5 of Article 9 set out the procedures which the Member States must establish for review by a judicial authority of the legality of the detention.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 46.     The applicant complained under Article 5 § 1 of the Convention that the system of immigration detention in the United Kingdom fell short of the requirements of Article 5 § 1(f) (in particular, on account of the absence of fixed time-limits and automatic judicial review) and that the length of his detention exceeded that reasonably required for its purpose. Article 5 of the Convention provides, insofar as is relevant to the present complaint: “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: ... (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.” 47.     The Government contested that argument. A.     Admissibility 1.     Non-exhaustion of domestic remedies 48.     The Government submitted that insofar as the applicant complained about the first period of immigration detention (from 31 March 2005 to 17   December 2007) his complaints should be declared inadmissible for failure to exhaust domestic remedies. On 13 September 2007 he had issued a judicial review application to challenge his ongoing detention. However, in the course of those proceedings he had been released on bail. Consequently, he had not pursued this legal challenge and the judicial review application was dismissed on 26 February 2008 without a substantive hearing. In his second judicial review application (issued on 6   November 2009) the applicant focused his complaints on the second period of detention. 49.     The applicant did not address this issue in his submissions to the Court. 50.     The Court has consistently held that, as the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights, it cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. States are therefore dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Sher and Others v. the United Kingdom , no. 5201/11, § 130, ECHR 2015 (extracts); Akdivar and Others v.   Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; and Gough v. the United Kingdom , no. 49327/11, § 137, 28   October 2014). 51.     It is incumbent on the Government claiming non-exhaustion to satisfy the Court that at the relevant time there existed an effective remedy which was available in theory and in practice, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar , cited above, § 68 and Gough , cited above § 139). 52.     In the present case the applicant effectively abandoned his first judicial review application after he was released from detention. Although he later referred to the first period of detention in his second judicial review application, he focused his attention on the second period, presumably because the first period could not be in question legally since he had been released for one month pursuant to a court order and the order enforcing release had been discharged (see paragraph 26 above). The applicant has not advanced any reason for failing to pursue the first judicial review application. Moreover, since the Administrative Court, upon consideration of his second judicial review application, found that his detention from 14   September 2009 onwards had been unlawful and awarded him damages, the Court sees no reason to doubt that, had he pursued the first judicial review application, the domestic courts would have fully considered his complaints concerning the first period of detention and awarded him damages if it was found to have become unlawful at any stage. 53.     Therefore, in the circumstances it cannot be said that the applicant has exhausted domestic remedies in respect of the first period of detention. Consequently, insofar as his complaint concerns this period (from 31 March 2005 to 17 December 2007), it must be rejected under Article 35 § 1 of the Convention. 2.     “Victim” status 54.     The Government submitted that, insofar as the applicant’s complaint concerned his detention after 14 September 2009, he could no longer be considered a “victim” within the meaning of Article 34 of the Convention since the domestic courts had expressly acknowledged that his detention had become unlawful and had afforded him adequate redress. 55.     The applicant did not address this issue in his submissions to the Court. 56.     The Court recalls that an individual can no longer claim to be a “victim” of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress ( Eckle v. Germany , 15 July 1982, § 66, Series A no. 51; and, more recently, Centro Europa 7 S.r.l. and Di Stefano v.   Italy [GC], no. 38433/09, § 81, ECHR 2012). 57.     In the present case, the Administrative Court expressly held that from 14 September 2009 the applicant’s detention had become unlawful and he was awarded GBP 6,150 in damages. Although he was granted leave to appeal in respect of the quantum of damages, the outcome of that appeal is unknown. In any case, in his submissions to this Court the applicant has not suggested that he was awarded insufficient redress in respect of the period of unlawful detention. Consequently, insofar as he now seeks to complain about his detention from 14 September 2009 until his release in early December 2009, the Court considers that the applicant cannot claim to be a “victim” of a violation of the Convention within the meaning of Article 34. This aspect of his complaint must therefore be rejected. 3.     Manifestly ill-founded 58.     The Government argued that the remainder of the applicant’s complaint under Article 5 § 1 of the Convention (that is, his complaint in respect of the period from 14 January 2008 to 14 September 2009) was manifestly ill-founded. However, the Court is satisfied that the complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 59.     The applicant argued that the system of domestic law governing immigration detention in the United Kingdom lacked the “quality of law” required by Article 5 § 1 of the Convention because it was not clear and did not produce foreseeable consequences for individuals. In particular, the applicant argued that in the absence of fixed time-limits the approach of the domestic courts in considering a challenge to the lawfulness of immigration detention was inherently subjective and, as a consequence, there existed very real uncertainty as to the exact point in time when detention would become unlawful. 60.     The applicant further contended that the absence of clear time-limits on the maximum period of immigration detention was impossible to justify since many Contracting States have now imposed such time-limits. In particular, he argued that the Returns Directive was indicative of an increasing consensus among European States that indefinite immigration detention was not consistent with basic standards of human rights, and that limitations on maximum periods of detention were not inconsistent with effective border control. 61.     In this regard, the applicant did not accept that the addition of a fixed time-limit would increase incentives for detainees to refuse to cooperate with the State’s efforts to deport or extradite them. A detainee’s cooperation would not necessarily be required to effect a removal. However, even if it were, a time-limit such as that provided for under the Returns Directive (a maximum period of eighteen months) would still permit detention for a lengthy period and would thus provide an obvious reason for detainees to cooperate. Finally, the applicant submitted that release into the community would not necessarily prevent incentives to depart (such as restrictions on access to work and benefits) from being imposed. 62.     The applicant also argued that automatic independent judicial scrutiny of the legality of detention was particularly important in the immigration context, since in practice it would be extremely difficult for a lay person with a limited knowledge of the English court system – and possibly a limited grasp of the English language – to develop a sufficient understanding of the relevant legal principles to effectively argue that his detention had become unlawful. Furthermore, immigration detainees would likely find legal representation difficult to obtain as legal aid was not currently available for many immigration matters. 63.     In addition to his complaint that the system of immigration detention in the United Kingdom did not satisfy the “quality-of-law” requirement under Article 5 § 1(f), the applicant also submitted that, having regard to the particular circumstances of his case, the length of his detention was both unlawful under domestic law, as there had been no realistic prospect of removal prior to 14 September 2009 (the date at which the domestic courts found his detention had become unlawful), and in breach of Article 5 § 1 of the Convention. (b)     The Government 64.     The Government submitted that the domestic legal system governing immigration detention was based on the Hardial Singh principles, which was a comparable test to that required by Article 5 § 1(f) of the Convention. Furthermore, the application of those principles was foreseeable and produced predictable outcomes based on the relevant circumstances of a case. Therefore, although domestic law contained no fixed time-limit on the duration of administrative detention, limits were still set by the common law. The fact that the limit was different for different cases according to their individual circumstances did not make the test arbitrary. Rather, it protected detainees from arbitrariness by taking into consideration the circumstances individual to each case. 65.     The Government drew the Court’s attention to the fact that in practice the overwhelming majority of immigration detentions in the United Kingdom were brief as the individuals concerned were either removed shortly after being detained, or they were released on bail. However, they argued that the adoption of a fixed time-limit would be likely to increase the length of immigration detention as it would provide an incentive for detainees to not cooperate with the authorities’ attempts to remove them. 66.     The Government further submitted that if the Court were to require a system which only allowed a time-limited period of permissible detention it would effectively be imposing, by the “back door”, a system modelled on the Returns Directive, which would subvert the democratic process by which the United Kingdom had lawfully and properly “opted out” of that Directive. It would also impose the system provided for by that Directive on those Council of Europe States that were not members of the European Union or the European Economic Area. 67.     In addition, the Government contended that Article 5 of the Convention did not require automatic judicial oversight of detention. On the contrary, Article 5 § 4 required nothing more than that an individual be entitled to take proceedings by which the lawfulness of his detention should be determined “speedily” by a Court. The system in place in the United Kingdom complied with that requirement, as longer periods of detention were almost always subject to repeated judicial scrutiny through bail applications and by way of judicial review. Systems were in place to inform individuals of their right of challenge, and those rights were well-used in practice. 68.     With regard to the circumstances of the case at hand – in particular the seriousness of the applicant’s offending and his refusal to cooperate with his removal – the Government submitted that the High Court’s assessment that a “reasonable period” had not yet expired prior to 14 September 2009 was not wrong and did not disclosed any violation, either of the Hardial Singh principles or of the requirements of Article 5 § 1(f). (c)     The third party intervener 69.     Bail for Immigration Detainees (“BID”) submitted that