The European Court of Human Rights (ECtHR) in the case of J.N. v The United Kingdom, found that Article 5 of the European Convention on Human Rights (right to liberty and security of person) does not itself impose a maximum time limit for detention pending deportation. The ECtHR found that while the general system for deportation lacked specific maximum time limits, this in itself, did not violate the Convention. However, on the facts of the case the ECtHR found the authorities had not acted with sufficient ‘due diligence’ and this led to a violation of Article 5.
By way of background, J.N., a national of Iran, arrived in the UK in 2003 and unsuccessfully sought asylum. In 2004 he was convicted of indecent assault and sentenced to 12 months in prison. He was released subject to a number of conditions, the breach of which led to a deportation order being made against him. He was detained in 2005 awaiting this deportation. Complications with travel documentation arose, which resulted in a prolonged period of detention. In December 2007, he was released subject to a number of conditions including agreeing to take the necessary steps to obtain the relevant travel documents. He breached these conditions and refused to sign the disclaimer sought by the Iranian authorities and was thus re-arrested in January 2008.
J.N. brought judicial review proceedings in the domestic courts to challenge this detention in 2009. The judge found that there was a duty on the authorities to act with reasonable diligence and expedition. On the facts, he found they had acted with a “woeful lack of energy and impetus”. Thus it was held that the applicant’s detention had been unlawful from 14 September 2009 onwards and the applicant was awarded damages of £6,150.
J.N then brought a claim to the ECtHR arguing a breach of Article 5 ECHR of his right to liberty. The ECtHR noted that restrictions of the right to liberty under Article 5 are only permissible in certain circumstances, including for the purposes of deportation and extradition. This must be prescribed by and comply with domestic law. Furthermore, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”.
J.N also claimed that there should be automatic judicial scrutiny of such detentions, but the ECtHR rejected this claim. All that is required by Article 5 is an entitlement to take proceedings. The applicant argued finally that his second period of detention was unlawful. The ECtHR found that the UK had not pursued the detention with “reasonable diligence and expedition”, therefore it was not in accordance with domestic law. It held therefore that the detention from mid-2008 onwards was in violation of Article 5. The ECtHR held that the period between mid-2008 and September 2009 when the detention was declared unlawful by the domestic courts could not be justified simply because the applicant refused to cooperate.
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