With regard first of all to the question of good faith, the Court has no hesitation in subscribing to the observations of the domestic courts, which found that the detention regime in Oakington was designed to ensure the speedy resolution "of some 13,000 of the approximately 84,000 asylum applications made in the United Kingdom per year at that time. In order to achieve this objective it was necessary to schedule up to 150 interviews a day and even small delays might disrupt the entire programme. The applicant was selected for detention on the basis that his case was suited for fast track processing" (see paragraph 76). In these circumstances, the Court found that the national authorities acted in "good faith" in detaining the applicant. Indeed, the policy behind the creation of the Oakington regime was generally to benefit asylum seekers; detention was therefore in their best interests.
If even "small delays" were considered to disrupt the entire programme, it is difficult to discern why, on arriving at the airport and lodging his asylum claim, the applicant was first allowed to remain at liberty and was requested to go to a hotel and report of his own accord on the following days to the authorities responsible for his case (which he duly did).
More fundamentally, not just in the context of asylum but also in other situations involving deprivation of liberty, to maintain that detention is in the interests of the person concerned appears to us an exceedingly dangerous stance to adopt. Furthermore, to contend in the present case that detention is in the interests not merely of the asylum seekers themselves "but of those increasingly in the queue" is equally unacceptable. In no circumstances can the end justify the means; no person, no human being may be used as a means towards an end.
Next, as regards the purpose of detention, in stating that "since the purpose of the deprivation of liberty was to enable the authorities quickly and efficiently to determine the applicant's claim to asylum, his detention was closely connected to the purpose of preventing unauthorised entry" (see paragraph 77 in fine), the Court does not hesitate to go a step further and assimilate all asylum seekers to potential illegal immigrants.
In the interests of rigour we believe that for detention to be authorised the authorities must satisfy themselves in concreto that it has been ordered exclusively in pursuit of one of the aims referred to in the Convention, in this instance to prevent the person's effecting unauthorised entry into the country. This has in no sense been established in the present case, as the applicant did not enter or attempt to enter the country unlawfully. On the other hand, if the authorities had objectively verifiable grounds to believe that the applicant was liable to abscond before his claim for asylum had been determined, they could have made use of detention in accordance with Article 5 § 1 (f) of the Convention. In that case, the detention would have been aimed at preventing the asylum seeker from entering or remaining in the country for a purpose other than that for which he had been granted temporary admission. Conversely, it is not permissible to detain refugees on the sole ground that they have made a claim for asylum.
It is not disputed in the present case that the applicant's detention was aimed at ensuring the speedy resolution of his claim for asylum and hence the adoption of a decision on the subject at the earliest date possible. His detention therefore pursued a purely bureaucratic and administrative goal, unrelated to any need to prevent his unauthorised entry into the country. As Judges Casadevall, Traja and {Sikuta} rightly observed in their dissenting opinion annexed to the Chamber judgment of 11 July 2006, such a situation creates great legal uncertainty for asylum seekers, stemming from the fact that they could be detained at any time during examination of their application without their being able to take the necessary action to avoid detention. Hence, the asylum seeker becomes an object rather than a subject of law.
Lastly, following the same line of thinking, the Court accepts in the instant case that a seven-day period of detention "cannot be said to have exceeded that reasonably required for the purpose pursued" (see paragraph 79). In so doing, it is accepting a period of detention which it does not generally sanction in the other cases of deprivation of liberty contemplated by Article 5 of the Convention. Granted, it is understandable that in certain situations, for example concerning extradition, the State must be allowed greater latitude than in the case of other interferences with the right to liberty. However, we can see no justification for adopting such an approach in relation to asylum seekers, with the attendant risk that the scrutiny of deprivations of liberty under the European Convention on Human Rights will be substantially weakened as a result. Moreover, if a seven-day period of detention is not considered excessive, where and how do we draw the line for what is unacceptable?
As regards detention generally, the requirements of necessity and proportionality oblige the State to furnish relevant and sufficient grounds for the measure taken and to consider other less coercive measures, and also to give reasons why those measures are deemed insufficient to safeguard the private or public interests underlying the deprivation of liberty. Mere administrative expediency or convenience will not suffice. We fail to see what value or higher interest can justify the notion that these fundamental guarantees of individual liberty in a State governed by the rule of law cannot or should not apply to the detention of asylum seekers.
Hence, to the extent that these requirements must be encompassed in the notion of arbitrariness, the question of alternatives to detention should have been considered by the majority. They make no mention of it until the closing paragraphs of their reasoning where, paradoxically, they recognise that "the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers" (see paragraph 80). It is thus clearly acknowledged that an alternative to detention might have existed enabling the problem to be dealt with at source, in other words at the level of the management of asylum applications; this further underscores the fact that detention was the wrong answer to the right question.
The European Convention on Human Rights does not apply in a vacuum, but in conjunction with the other international fundamental rights protection instruments. In that regard, with reference to the United Nations, Article 9 of the International Covenant on Civil and Political Rights - which prohibits arbitrary arrest or detention and applies to all cases of deprivation of liberty, including in the context of immigration controls - has been interpreted by the Human Rights Committee's case-law to mean that detention must not simply be lawful, but must also not have been imposed on grounds of administrative expediency (see Van Alphen v. the Netherlands, Communication No. 305/1988, UN Doc. CCPR/C/39/D/305/1988 (1990)). In addition, it must satisfy the requirements of necessity and proportionality. Lastly, the review of a detention by the courts must not be confined to assessing whether it complies with domestic law, but must also make it possible to determine, even in cases of illegal entry, whether factors particular to the individual (likelihood of absconding, lack of cooperation, and so on) justify his or her detention (see A. v. Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (1997)). In its decision in Bakhtiyari v. Australia, the Committee confirms that a court review which does not allow the courts to reexamine the justification of the detention in substantive terms will not satisfy the requirements of Article 9 of the Covenant (see Bakhtiyari v. Australia, Communication No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002 (2003)).
With reference to the European Union, mention should be made of Article 18 of the European Union Charter of Fundamental Rights, which recognises the right to asylum of refugees within the meaning of the Geneva Convention. Article 18 (1) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJEC L 326 of 13 December 2005, p. 13) provides that "Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum". This, in our view, is the minimum guarantee, and the assertion made in this provision provides a useful adjunct to the rules set forth in Article 7 of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJEC L 31 of 6 February 2003, p. 18). Article 23 (3) and (4) of Directive 2005/85/EC also makes provision for priority or accelerated examination procedures.
As to the Council of Europe, Committee of Ministers Recommendation Rec (2003) 5 of 16 April 2003 on measures of detention of asylum seekers states that the persons falling within the scope of the first limb of Article 5 § 1 (f) do not include "asylum seekers on criminal charges or rejected asylum seekers detained pending their removal from the host country" (point 2). It further states that measures of detention of asylum seekers "should be applied only after a careful examination of their necessity in each individual case. These measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments..." (point 4). Finally, "[a]lternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention" (point 6).
The crux of the matter here is whether it is permissible today for the European Convention on Human Rights to provide a lower level of protection than that which is recognised and accepted in the other organisations.
Ultimately, are we now also to accept that Article 5 of the Convention, which has played a major role in ensuring controls of arbitrary detention, should afford a lower level of protection as regards asylum and immigration which, in social and human terms, are the most crucial issues facing us in the years to come? Is it a crime to be a foreigner? We do not think so.