R (Saadi) v Secretary of State for the Home Department

The statutory power to detain a person pending examination and a decision on leave to enter is not confined to cases where detention is necessary to prevent absconding. It may be used for a reasonable period to facilitate the rapid determination of an asylum claim.

Detention under article 5(1)(f) of the European Convention on Human Rights need not be proved necessary to prevent unauthorised entry. The relevant process must be pursued diligently and detention must not be excessively prolonged. Proportionality principally concerns duration, conditions and any special circumstances affecting the detainee.

A short period of detention in suitable conditions, under rational selection criteria and for efficient processing, is lawful.

Four Iraqi Kurdish asylum seekers were detained at Oakington Reception Centre for no more than ten days while their claims were processed under a fast-track procedure. They were selected because their claims appeared capable of resolution within approximately one week and because they were not considered likely to abscond or misbehave.

Collins J held in [2001] EWHC Admin 670 that the detention was authorised by the Immigration Act 1971, but violated article 5 of the European Convention on Human Rights. The Secretary of State appealed. The Court of Appeal had to determine whether the detention was lawful under domestic public law and whether it fell within article 5(1)(f) as detention to prevent unauthorised entry.

1. Appeal allowed. Lord Phillips MR delivered the judgment of the court. The respondents’ short detention at Oakington was lawful under domestic law and article 5(1)(f) of the European Convention on Human Rights.

2. Paragraph 16(1) of Schedule 2 to the Immigration Act 1971 authorised detention pending examination and a decision whether to grant or refuse leave to enter. Its purpose was to prevent entry without leave. The power was not confined to cases where detention was necessary for the examination or where an applicant might abscond. It nevertheless endured only for the period reasonably necessary to complete the examination and reach the decision.

3. The Oakington policy was rational. The Secretary of State could reasonably conclude that the continuous presence of selected applicants was needed to operate an intensive seven-day procedure without dislocation. The court shared some doubts about strict necessity, but those doubts rested on speculation and could not establish irrationality. Limited capacity did not make the policy arbitrary because the selection criteria were clear and rational.

4. Article 5(1)(f) preserved the right of a state to decide whether an alien should enter its territory. Until entry was authorised, detention could prevent unauthorised entry even where the person had properly claimed asylum and was unlikely to abscond. The provision did not require proof that detention was necessary for processing the claim. Amuur v France (1992) 22 EHRR 533 was to be read with Chahal v United Kingdom (1996) 23 EHRR 413.

5. The relevant proportionality question was whether consideration of the asylum claim had continued too long to justify detention, having regard to the conditions and any special circumstances affecting the detainee. It was not whether detention was indispensable to rapid processing. Detention for approximately one week, in conditions appropriate for asylum seekers, was not disproportionate. The appeal was accordingly allowed, with leave to appeal to the House of Lords granted.

1. Court of Appeal: In [2001] EWCA Civ 1512, the court allowed the Secretary of State’s appeal and held that the detention was lawful under both the Immigration Act 1971 and article 5(1)(f) of the European Convention on Human Rights. Leave to appeal to the House of Lords was granted.

2. Administrative Court: Collins J held in [2001] EWHC Admin 670 that the detention was authorised by domestic legislation but was unlawful under article 5. The Court of Appeal reversed that conclusion.