Immigration law

Detention at OakingtonR v Secretary of State for the Home Department, ex parte (1) Shayan Baram Saadi (2) Zhenar Fazi Maged (3) Dilshad Hassan Osman (4) Rizgan Mohammed (2001) QBD Administrative Court (Mr Justice Collins): 7 SeptemberThis was a claim for judicial review by four asylum seekers challenging the lawfulness of their temporary detention at the Oakington Reception Centre (Oakington) after their arrival in the UK.

The claimants were Iraqi Kurds who arrived in the UK in December 2000.

The first claimant arrived openly at Heathrow and sought leave to enter the UK as a refugee.

The second to fourth claimants were illegal entrants who, but for their asylum claims, would have been removed from the UK.

It was decided that their claims for asylum should be considered at Oakington and that they should be detained there for up to 10 days while interviews were conducted and other enquiries were made.

Oakington had been established as a reception centre for asylum seekers whose claims, it was considered by the Home Office, could be decided quickly, usually within seven to 10 days of arrival.

It was apparent that any decision to detain at Oakington was not based on any considerations whether an applicant may abscond or otherwise fail to comply with terms of temporary admission; rather, the governing criterion was whether the claim appeared capable of being decided quickly.To assist immigration officers in deciding on suitability, a list of nationalities was drawn up which could justify consideration at Oakington because they were expected to be simple to deal with.

Asylum seekers from Iraq are included in the list but the description in the list reads 'Iraq - must speak Sorani, only Kurds from autonomous area, usually from Suleymaniya, Dohuk and Irbil and their provinces but please phone for further advice.' It was conceded that the pre-existing criteria for detention are not only irrelevant but they are also a contra-indication to detention at Oakington.

It was conceded by the respondent that none of the claimants presented any risk of absconding or of otherwise failing to comply with the terms of temporary admission while their claims for asylum were being processed, and that the sole reason for their detention was to facilitate the 'fast track' disposal of their claims.Mr Justice Collins reviewed the lawfulness of detention in terms of domestic law and policy and in terms of article 5 of the European Convention on Human Rights.

He held:l The detention of individuals at Oakington was dictated by administrative convenience and not because they had done something that would usually be considered a justification for depriving them of their liberty.

However, because the detention was being used for a proper purpose, namely that set out in schedule 2, paragraph 16 of the Immigration Act 1971, it was lawful in terms of domestic law.

l Article 5 of the European Convention on Human Rights conferred on each of the claimants a right to liberty of which he could only lawfully be deprived, in the circumstances of this case, if his lawful arrest or detention prevented him from effecting an unauthorised entry into the country or if action was being taken against him with a view to deportation or extradition (see article 5.1(f) of the convention).

l Neither of the conditions justifying detention in article 5.1(f) of the convention was made out.

Once it was accepted or established, as it was in this case, that a claimant had made a proper application for asylum and that there was no risk he would abscond or otherwise misbehave, it was impossible to see how it could be reasonably argued that he needed to be detained to prevent him effecting an unauthorised entry.

Rather, he was doing all that he could to make an authorised entry.

Equally, it could not be said that the mere possibility that a claim for asylum might be refused meant action was being taken against him with a view to deportation or extradition.

l There was no doubt that the first claimant did not fall within either part of article 5.1(f) of the convention.

The second to fourth claimants had entered illegally with a view to claiming asylum and it was never suggested to them that action was being taken with a view to their removal.

It was not possible to justify the detention of any of the claimants under article 5.1(f) and it was, therefore, illegal.

l Even if the detention had been within article 5.1(f), the decision to detain the claimants was not proportionate and was therefore arbitrary and unlawful.

It was clear that none of the claimants would have been detained at Oakington but for the fact that it had been decided that their claims should be dealt with by the fast-track procedure.Mr Justice Collins was scathing in his judgment of the failure of the respondent to adjust its procedures to comply with the stated detention process at Oakington, asserting that the failure to amend the form giving reasons for detention was 'a disgrace' but if detention was lawful, 'the disgraceful failure to prepare proper forms cannot render it unlawful'.

He makes clear that detention of those who come to the UK to claim asylum is not necessarily unlawful but that for it to be lawful the 'reasons for and the purpose behind a person's detention are all-important.

Put simply the detention of these applicants was to enable the speedy determination of their claims and it was that that 'renders the detentions...unlawful'.

Damages for the detention will be determined at some later stage.This case does not render detention at the other detention centres and prisons unlawful.

The peculiar circumstances at Oakington are exclusive to Oakington.

The government's appeal against the judgment of Mr Justice Collins is scheduled to be heard at the beginning of October.

By Jane Coker, Coker Vis Partnership, London