In a recent decision from Strasbourg, the European Court of Human Rights has found the UK Home Office unlawfully detained a Zimbabwean national. The Court found that the UK authorities had failed to act with sufficient “due diligence” in progressing the Applicant’s case, leading to him being detained for over two and a half years in an immigration removal centre. The case is S.M.M. v. THE UNITED KINGDOM (Application no. 77450/12).

Background

The applicant was born in Zimbabwe. He arrived in the UK in May 2001 and was granted six months’ leave to enter as a visitor.

Fast forward to 2007, (a few driving offences and a failed asylum claim later), the Applicant was convicted of possessing Class A drugs with intent to supply. He was sentenced to three years’ imprisonment and was later served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008, he remained in detention.

The Applicant has a history of significant mental conditions, including a mental illness which led him to hear voices, at least two attempted suicides and a six-day hospital section.

On 27 March 2008, the Applicant made a second asylum application. On 3 November 2009 the Applicant’s representatives asked the Government to allow them more time to submit medical evidence supporting the Applicant’s asylum claim. A medical report was not submitted until November 2010, despite three chasers from the Secretary of State in relation to this.

On 8 February 2011 the Secretary of State refused the Applicant’s second asylum claim and made a deportation order. This decision was challenged and eventually, on 20 November 2012, the Upper Tribunal allowed the Applicant’s appeal on human rights grounds.

The applicant was also released from detention on 15 September 2011 after being granted bail by the Upper Tribunal.

Unlawful detention proceedings – all the way to Strasbourg

Despite the fact that they delayed submission of the medical report, on 28 June and 8 July 2010, the Applicant’s representatives wrote to the Secretary of State requesting that the applicant be released due to his medical conditions, and pursuant to the Secretary of State’s policy on not detaining mentally ill persons.

The Secretary of State replied in a somewhat predictable manner, maintaining detention due to her perceived seriousness of the offence, the risk of harm to the public, and the risk of absconding.

On 14 January 2011 the Applicant submitted an application for judicial review in which he challenged his continuing detention on the grounds that:

• it was contrary to the Secretary of State’s published policy on the detention of persons suffering from serious mental illness;
• it was contrary to the Secretary of State’s published policy on the detention of persons who had been victims of torture (as the Applicant alleged to be); and
• it was contrary to the principles set down in R v. Durham Prison Governor ex parte Hardial Singh

The Applicant was refused permission all the way to the Court of Appeal, on the ground that there was no independent evidence of torture, and that the Applicant’s mental health conditions could be satisfactorily managed in detention.

The Applicant therefore applied to the European Court of Human Rights, complaining that his detention from 28 November 2008 to 15 September 2011 (when he was released on bail) was in violation of Article 5§1(f) of the Convention as it had not been lawful under domestic law, and it had been unreasonable, arbitrary and disproportionate.

Admissibility: exhausted domestic remedies?

The government argued that the application should not be admissible on the grounds that the Applicant did not exhaust their domestic remedies. In particular, the argument that his detention was disproportionately long due to the government’s failure to act with “due diligence” was not previously raised . The government argued that the Applicant could have done so by invoking the analogous test in the second and fourth Hardial Singh principles that detention can only be for a period that is reasonable in all the circumstances [49].

In response, the ECtHR noted that while it is:

…mindful of the object of the rule of exhaustion of domestic remedies, which is to allow the national authorities to address the allegation of a violation of a Convention right…the applicant has conclusively shown that he was detained for a very long period of just over two and a half years, and that he was vulnerable as someone suffering from serious mental health problems… [55].

…Therefore where an applicant is bringing a challenge under the Hardial Singh principles at the domestic level, it may be presumed, unless the domestic courts expressly indicate otherwise, that he is raising in substance all the arguments that this Court would consider under Article 5§1(f) [56].

In other words, whenever an applicant brings a challenge on the grounds that the Hardial Singh principles are not complied with, it is for the Secretary of State and courts to address all of the four principles, whether or not those have all been raised individually.

Failure to act with “due diligence”

The European Court stuck within its own competences noting at the outset that “the domestic courts’ conclusions concerning the applicant’s state of mental health and evidence of his torture are factual findings, in which it is not for this Court to interfere” [69], therefore dismissing the Applicant’s argument that his detention was unlawful due to the failure of the authorities to apply the mental health and torture policy concessions to his case.

Instead, it considered the principal question for the court was whether the Applicant’s detention could be said to have been arbitrary on the grounds that

the length of the detention exceeds that reasonably required for the purpose pursued. [74]

The ECtHR took issues with the long delay in deciding the asylum claim, which was made on 27 March 2008 and only decided almost three years later, on 8 February 2011.

The Government’s explanation for its delay in processing the asylum claim was pinned on the applicant’s representatives’ request for additional time to submit medical evidence in support of the claim.

The Court took a hard line:

…the Secretary of State should have taken more decisive steps to bring the decision making process swiftly to a close. In this connection the Court notes that whilst the applicant was considered sufficiently well to be detained it was accepted that he had serious mental health problems, making him vulnerable. There was therefore a heightened duty on the authorities to act with “due diligence” in order to ensure that he was detained for the shortest time possible” [82].

…Furthermore, the Court notes that the applicant, being a vulnerable individual, was detained for a very significant period of time. The Court notes that in respect of the period between 9 November 2008, when the Applicant first indicated that he intended to provide a medical report to support his second asylum application and 8 February 2011, when his asylum claim was finally decided the government failed to take any significant initiative towards deciding his claim. Moreover, for the period of just over four months after the deadline for that expert report expired and until the final report was ultimately provided, the Court considers there was a heightened need for the government to process and, ultimately decide the claim diligently and speedily given the amount of time that the applicant had already been in detention [83].

Accordingly, the Court held there had been a violation of Article 5§1 of the Convention.

Onus on the government to justify detention 

The main message to take from this case is that it is for the Secretary of State to ensure it is acting diligently to progress each case, and to continually be able to justify any decision to detain, independently of the actions of the applicant’s legal representatives. This is good news for the increasing number of individuals who do not have access to adequate legal representation in detention, including because of the numerous legal aid cuts.

In addition, although not yet ruling indefinite detention unlawful, the Court makes it clear that in circumstances where there are no fixed time limits on immigration detention, and an applicant is subject to an indeterminate period of detention, the necessity of procedural safeguards such as those laid down by Article 5 of the Convention are key.

Finally, it is clear from the judgement that the government’s duty to act with due diligence is particularly stark where a vulnerable person is concerned. It is not the first time that the Home Office is accused of unlawfully detaining vulnerable individuals (see for example last year’s Shaw Review). The Secretary of State did take action by publishing a guidance on Adults at Risk in Detention in August 2016 and it can only be hoped that, short of an end to indefinite detention, this guidance starts being implemented appropriately to stop the detention of vulnerable individuals.

With some additional reporting by Nath Gbikpi