Less stringent measures and migration detention: overruling Saadi v. UK?

The recent cases of Yoh-Ekale Mwanje v. Belgium and Popov v. France illustrate how a ‘less stringent measures test’ is entering the Court’s reasoning under Art. 5 § 1 ECHR in migration detention cases. The Court appears to be slowly moving away from its deferential approach in Saadi v. The United Kingdom. This might result in the overruling of Saadi by the Grand Chamber in the near future.

Yoh-Ekale Mwanje v. Belgium

The Second Section judgment of Yoh-Ekale Mwanje v. Belgium of 20 December 2011 is the last of a long list of asylum and migration cases in which Belgium was found to be in violation of the Convention (Čonka (2002) , Mubilanzila Mayeka and Kaniki Mitunga (2006), Riad and Idiab (2008) , Muskhadzhiyeva and Others (2010), M.S.S. (2011) and Kanagaratnam and Others (2011)). The case concerns the detention of an HIV-positive Cameroonian woman – who had been irregularly staying in Belgium since the rejection of her request for family reunification with her Dutch partner living in Belgium – for almost four months in a closed transit centre with a view to her deportation. She complained under Art. 3 ECHR (the prohibition of torture and of inhuman and degrading treatment or punishment) that her removal to Cameroon would expose her to the risk of dying a premature death due to lack of access to anti-retroviral drugs. The Court dismissed her complaint, but interestingly six out of seven judges issued a partially concurring opinion in which they called on the Grand Chamber to overrule the leading case of N. v. the United Kingdom (2008). Her second complaint concerned her detention circumstances, which the Court found to be in violation of Art. 3 ECHR, due to the total lack of diligence in starting her anti-retroviral treatment while in detention. Thirdly, the Court found a violation of Art. 13 ECHR (the right to an effective remedy) due to the lack of a rigorous examination of her complaint that her removal would be in breach of Art. 3. This blog post will however focus on her fourth complaint under Art. 5, § 1 ECHR (the right to liberty).

The Court recalled that Art. 5 § 1 f) generally authorises the lawful arrest or detention of a person against whom action is being taken with a view to deportation. The Court however pointed to the fact that the authorities knew her exact identity; that she lived at a fixed address known to the authorities; that she always presented herself when called up by the Aliens Office; and that she had made multiple attempts to regularize her migration status. Furthermore she was infected with HIV, her state of health had deteriorated during her detention and she was in need of emergency medical care. Despite this situation, the authorities had not considered a “less severe measure” (“une mesure moins sévère”) capable of safeguarding the public interest, such as the granting a temporary residence permit. Therefore the Court did not see a relation between the detention of the applicant and the aim pursued, in violation of Art. 5 § 1 ECHR.

Popov v. France

A similar line of reasoning was followed by the Fifth Section judgment of 19 January 2012 in the case of Popov v. France. This case concerned a Kazakhstani family with a baby and a young child whose asylum application had been rejected. They were placed in detention with a view to deportation in a facility unsuitable for children. The Court found the detention of the children to be in violation of Art. 3 ECHR and Art. 5 § 1 ECHR. The Court based its finding under Art. 5 § 1 on the fact that the authorities had not considered whether the detention of the children was a “measure of last resort which could not be replaced by any alternative” (“une mesure de dernier ressort à laquelle aucune alternative ne pouvait se substituer”). The Court however did not find a violation of Art. 5 § 1 in respect of the parents, as detention with a view to deportation should not be reasonably considered necessary, for example to prevent the commission of an offence or fleeing (e.g. Chahal v. United Kingdom (1996)). Noteworthy, the judgment also contains a separate subtitle IV concerning alternatives to detention, in which the Court refers to rapports of UNHCR, the Australian Human Rights Commission, Amnesty International and LIBE (the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament), which stress the need for alternatives for the detention of asylum seekers. This subtitle plays a crucial role in the Court’s analysis under Art. 8 ECHR (the right to respect for family life), in which the Court concludes that the detention of the family violated Art. 8 in respect of all the applicants, largely because “it is not clear from the information provided by the Government that an alternative to detention had been considered” (“il ne ressort pas des éléments communiqués par le Gouvernement qu’une alternative à la détention ait été envisagée”).

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Under most sub-paragraphs of Art. 5, § 1 ECHR, detention is only justified as ‘a measure of last resort’, “where other, less stringent measures have been considered and found to be insufficient” (e.g. Hilda Hafsteinsdóttir v. Iceland (2004)). The Court generally seems to apply this as a procedural test: the lack of evidence that ‘less stringent measures’ (in some cases called ‘less severe measures’) have been considered at the domestic level indicates that detention should be considered arbitrary (e.g. Khayredinov v. Ukraine (2010)). It cannot be excluded that, in exceptional cases, the Court might also apply this test in a more substantive way, by scrutinizing the reasonableness of the domestic authorities evaluation whether less stringent alternatives actually are insufficient.

In the case of Saadi v. the United Kingdom (2008), the Grand Chamber explicitly refrained from applying the ‘less stringent measures’ test under Art. 5 § 1 f) ECHR. It should be noted that the case of Saadi concerned the first limb of Art. 5 § 1 f) ECHR which allows “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country”, but the same reasoning applies under the second limb which allows arrest or detention with a view to deportation (e.g. A. and Others v. The United Kingdom (2009)).

In the judgment of Yoh-Ekale Mwanje v. Belgium and Popov v. France, the Second and the Fifth Section respectively seem to apply a variant of the ‘less stringent measures’ test. In Popov v. France, the Court stresses that detention of (asylum seeking) minors can only be justified insofar as it can be considered to be a “measure of last resort which could not be replaced by any alternative”. This line of reasoning stems from the earlier First Section judgment of Rahimi v. Greece of 5 April 2011 (I blogged about this case here), in which it was explicitly extracted from Art. 37 (b) of the Convention on the Rights of the Child, which states that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.” Interestingly, both in Rahimi as in Popov, the question whether detention is a measure of last resort is explicitly linked to the absence of (less stringent) alternatives. Although the ‘measure of last resort’ test is strictly limited to minors, the cases of Rahimi and Popov are two good examples of how a ‘less stringent measures’ approach has entered the Court’s asylum and migration detention case-law. Moreover, in Popov a ‘less stringent measures’ test has also been applied in the analysis under Art. 8 ECHR, both with respect to the children as with respect to the parents.

In Yoh-Ekale Mwanje, the need to consider ‘less severe measures’ seems to be incorporated in the more general requirement that detention with a view to deportation “must be closely connected to the ground of detention relied on by the Government” (see e.g. A. and Others and mutatis mutandis Saadi). In the absence of a consideration of ‘less severe measures’, the detention cannot be considered to be closely connected to the detention ground and is therefore arbitrary. It must be admitted that the introduction of the ‘less severe measures’ test appears to be factually motivated, the applicant’s health status appears to have been crucial in the Court’s reasoning. However, the Court also takes other factors into account and does no effort to strictly restrict the possible application of this test to the facts of the case, thereby paving the way for ‘less severe measure’ arguments in other migration or asylum detention cases.

Popov v. France and Yoh-Ekale Mwanje v. Belgium both illustrate the tendency of certain sections of the Court to introduce a ‘less stringent measures’ test in asylum and migration detention cases. In Popov v. France there still appears to be some reluctance to apply this test with respect to adults, but the reasoning in Yoh-Ekale Mwanje has the potential to be widely used in future cases. Both cases show that Saadi v. The United Kingdom might be overruled by the Grand Chamber in a near future. Detention of asylum seekers or migrants for no good reason, only because of their migration status, is arbitrary. The general application of a ‘less stringent measures’ would be a huge step forward.

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