Communicated on 12 February 2014

FOURTH SECTION
Application no. 37289/12
JN
against the United Kingdom
lodged on 25 May 2012
STATEMENT OF FACTS

The applicant, Mr JN is an Iranian national who was born in 1971 and lives in Barking. He is represented before the Court by Ms S. Willman of Deighton Pierce Glynn Solicitors, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
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.
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 He was released on licence on 7 September 2004 but his licence was revoked on 24 September that year because he failed to comply with the terms of the licence.
The applicant was re-arrested on 16 January 2005.
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.
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.
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.
On 13 September 2007 the applicant commenced judicial review proceedings challenging his continued detention.
On 6 November 2007 the Iranian Embassy agreed to issue a travel document provided that the applicant was prepared to sign a “disclaimer”.
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.
The applicant refused to sign a disclaimer on 14 December 2007. Nevertheless, on 19 December 2007 the decision was taken to release him on bail. Two days later the matter was brought back to the Administrative Court and a different judge discharged the previous order with the effect that the applicant was once again liable to detention.
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.
Even so, on 8 January 2008 an authority was issued for the applicant's detention and on 14 January 2008 he was detained while reporting to the immigration authorities.
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.
On 26 February 2008 the claim for judicial review launched on 13 September 2007 was dismissed.
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.
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.
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.
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.
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.
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.
The applicant's solicitors wrote a letter before action on 21 October 2009 and proceedings were issued on 6 November 2009. 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.
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 Office argued 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 since the order enforcing release was itself 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.
In considering the lawfulness of the second period of detention, the Administrative Court recalled that the authorities should be free to make strenuous efforts to obtain the assent of 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 court noted that the law did not permit the indefinite detention of someone who was never going to consent to deportation.
Bearing that in mind, the court considered the history of the applicant's second period of detention. It 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.
The court 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 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 domestic law section below). Applying those principles and the relevant guidance, the court noted that the most important factor justifying detention was the applicant's refusal to sign the relevant disclaimer. The court further noted that lengthy detention could be justified by his offending, by the realistic fear that he would further offend, and the genuine and reasonable concern that he might abscond. However, even given those factors, the court 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 court 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”. It therefore held that the applicant's detention was unlawful from 14 September 2009.
In a decision dated 13 May 2011 the applicant was awarded GBP 6,150 in damages.
The applicant sought permission to appeal. On 31 October 2011 permission to appeal was refused. On 10 February 2012, however, the applicant was granted permission to appeal only in respect of the quantum of damages awarded. The outcome of that appeal is unknown.
B.  Relevant domestic law and practice
1.  The Hardial Singh principles
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.”
2.  R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804
In R(A) the Court of Appeal found 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
3.  Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12
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.
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.
COMPLAINT
The applicant complains under Article 5 § 1 of the Convention that his detention exceeded that reasonably required for the purposes of Article 5 § 1(f).
QUESTIONS TO THE PARTIES
1.  Did the total length of the applicant's detention (fifty-five months) as complained of by the applicant exceed that reasonably required for the purpose pursued under Article 5 § 1(f)? Is any distinction to be drawn between the different periods of the applicant's detention for the purposes of the Court's competence and assessment under Article 5 § 1(f)?

2.   Did the domestic legal regime of administrative detention applied to the applicant satisfy the requirements inherent in Article 5 § 1 as to the quality of the national law authorising such detention? In particular, did the lack of any time limits on administrative detention, taken alone or in conjunction with the absence of any automatic judicial oversight of such detention, violate the requirement of “lawful” detention under Article 5 § 1 in this sense?