Strasbourg finds that UK authorities again fail to show “due diligence” in deportation proceedings
15 September 2016
V.M. v. the United Kingdom, Application no. 49734/12, 1 September 2016: read judgment.
The European Court of Human Rights has ruled that part of an individual’s detention pending deportation violated the right to liberty protected by Article 5, ECHR. This judgment is the second recent ruling to find a lack of “due diligence” on behalf of UK authorities following the Court’s judgment in J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 (see my previous UKHRB post here).
by Fraser Simpson
The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.
In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported.
The UK Border Agency decided to deport the applicant towards the end of her incarceration for the criminal convictions. As a result, the applicant remained in detention following the completion of her sentence under immigration powers from 8 August 2008 onwards. The applicant appealed against this decision to deport. She was partially successful and was allowed to remain in the UK whilst the care proceedings in respect of her second child, born in July 2005, were still on going.
The applicant made representations on 19 June 2009 requesting the decision to deport be reversed or, alternatively, that the representations be treated as a fresh asylum claim. The representations included claims that the deportation, if it were to go ahead, would result in treatment contrary to Articles 3 and 8 of the Convention. The Secretary of State eventually refused to treat the applicant’s representations as a fresh asylum claim on 14 December 2009.
During this period of immigration detention the applicant’s mental health had been deteriorating. Expert reports from one source consistently advised that the applicant should be treated in a hospital setting. The applicant was moved twice to hospital due to attempts to commit suicide and self-harm. Despite these concerns, a team of experts produced a report that contradicted the previous expert’s reports. This report concluded that the applicant could be treated appropriately at the immigration detention centre and, despite the need for constant supervision due to the “impulsivity and unpredictability” of the applicant, hospital admission was not necessary.
Whilst the applicant was still in detention pending deportation, she lodged a judicial review claim to review the lawfulness of her continuing detention. Hearings took place in July 2010 and following these, in August 2010, the High Court judge dismissed the applicant’s claims. Whilst the Secretary of State had failed to take account of parts of her own policy relating to the detention of mentally ill individuals pending deportation, the applicant would still have been detained had the policy been properly applied. Accordingly, such a failure had not caused any damage. Further, the applicant’s detention had not become unreasonable or unlawful under the principles set out in R v. Governor of Durham Prison, ex parte Hardial Singh,  1 WLR 704. The High Court judge also found no basis for upholding the applicant’s arguments relating to Article 3 or 8, ECHR.
The applicant was granted permission to appeal to the Court of Appeal. The Secretary of State conceded that the detention had been unlawful during the period of 8 August 2008 until 28 April 2010 due to the failure to consider the guidance within the published policy on immigration detention of mentally-ill persons. This concession followed on from the Supreme Court’s decision in Lumba (WL) v. Secretary of State for the Home Department,  UKSC 12, (see a previous UKHRB post here) where the failure to follow a published policy led to the detention being declared unlawful. With regards to VM, in line with the decision in Lumba, the Court of Appeal decided that even if the policy had been considered earlier on, VM would still have been detained. Accordingly, despite recognising that during this period the detention had been unlawful, only nominal damages of £1 were awarded. The Court of Appeal also concluded that the detention complied with the Hardial Singh principles due to the fact that deportation within a reasonable time appeared a sufficient prospect at all times. Additionally, despite the fact that the Secretary of State could have responded to the “fresh claim” representations sooner, this delay “did not constitute a failure to act with due diligence”. Following this judgment, permission to appeal to the Supreme Court was refused.
The Strasbourg Court
The applicant complained to the Strasbourg Court that her detention had been in violation of Article 5(1), ECHR which protected her right to liberty. Her arguments were twofold: first, the detention pending deportation had not been in accordance with domestic law and therefore unlawful; and secondly, the detention had been arbitrary.
Unlawfulness (paras. 68-73 and 90-92)
The Court began by considering the applicant’s complaints regarding the unlawfulness of her detention. However, the UK Government contended that the domestic courts had adequately dealt with this issue by expressly acknowledging the unlawfulness of the detention between 8 August 2008 and 28 April 2010. As a result of this, the applicant could no longer be considered a “victim” in relation to this unlawfulness argument under Article 5(1).
The Court agreed. The express acknowledgment by the Court of Appeal that the detention during this period had been unlawful due to the failure to consider the relevant policy was sufficient. The Court would not re-examine this aspect of the applicant’s complaints. However, there was another unlawfulness issue that the Court moved on to.
The Court considered whether the relevant domestic law was in compliance with the Convention. Previously, the Court has emphasised the need for domestic law to clearly define the conditions for detention and for the application of such law to be foreseeable. The applicant argued that domestic law failed to satisfy such requirements – in particular, due to the lack of time-limits and automatic judicial review. However, the Court rejected this argument with reference to their recent judgment in J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 which, after careful consideration, rejected the arguments that a lack of time-limits or automatic judicial review resulted in UK immigration law falling short of the requirements of Article 5(1).
Article 5(1) requires that any deprivation of liberty is in keeping with the need to protect the individual from arbitrariness. The Court has not “formulated a global definition” as to what constituted arbitrariness, however, three issues were examined by the Court under the umbrella of “arbitrariness”:
- the need for any detention is closely linked to purpose relied upon under Article 5(1),
- the need for the place and conditions of detention to be appropriate for this purpose,
- and, whether the length of the detention exceeded that which was reasonable required for this purpose
1. Detention linked to purpose (paras. 94-95)
The Court quickly accepted that the detention had been linked with the purpose of deporting the applicant under Article 5(1)(f). Additionally, they considered that no reasonable alternatives to detention were available due to the applicant’s mental health issues and history of absconding.
2. Place and condition of detention (para. 93)
The applicant complained that due to her mental health issues she should not have been detained in an immigration centre, but instead in a hospital. However, the Court highlighted that due to the fact that she was being detained with a view to deportation under Article 5(1)(f), and not due to her mental health issues under Article 5(1)(e), then the conditions of detention were appropriate.
3. Length of detention (paras. 96-100)
The issue of whether the length of detention exceeded that which could be reasonably required is determined by assessing whether the authorities have acted throughout with “due diligence”. The Court opined that, in general, the authorities had acted throughout with such diligence. However, the Court highlighted the findings of the Court of Appeal that there had been a “lengthy delay” in refusing the applicant’s request to have her representations treated as a fresh asylum claim. Despite the fact that the period was “relatively short”, it could not be seen as “insignificant” in the grand scheme of things. The Court therefore concluded that the applicant’s detention between 19 June 2009 and 14 December 2009 violated Article 5(1).
The conclusion that a six-month delay was sufficient to result in a violation of Article 5(1) may appear to be a strict application of the need for “due diligence” when conducting deportation proceedings. However, the fact that the applicant was suffering from mental health issues, which were exacerbated by continued detention, placed an increased duty on the authorities to act with diligence. Additionally, although the six month period was described by the Court as “relatively short”, six months is the general time-limit for detention pending deportation under Article 15, “EU Returns Directive” (which the UK continues to opt-out of…).