SAADI v. THE UNITED KINGDOM JUDGMENT
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63. When considering the object and purpose of the provision within its
context, and the international law background, the Court has regard to the
importance of Article 5 in the Convention system: it enshrines a
fundamental human right, namely the protection of the individual against
arbitrary interferences by the State with his right to liberty (see, inter alia,
Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no.
33, § 37 and Brogan and Others v. the United Kingdom, judgment of
29 November 1988, Series A no. 145-B, § 58).
64. Whilst the general rule set out in Article 5 § 1 is that everyone has
the right to liberty, Article 5 § 1(f) provides an exception to that general
rule, permitting States to control the liberty of aliens in an immigration
context. As the Court has remarked before, subject to their obligations under
the Convention, States enjoy an “undeniable sovereign right to control
aliens' entry into and residence in their territory” (see the Amuur judgment
cited above, § 41; the Chahal judgment cited above, § 73; Abdulaziz,
Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985,
Series A no. 94, §§ 67-68). It is a necessary adjunct to this right that States
are permitted to detain would-be immigrants who have applied for
permission to enter, whether by way of asylum or not. It is evident from the
tenor of the judgment in Amuur that the detention of potential immigrants,
including asylum seekers, is capable of being compatible with Article 5
§ 1(f).
65. On this point, the Grand Chamber agrees with the Court of Appeal,
the House of Lords and the Chamber, that until a State has “authorised”
entry to the country, any entry is “unauthorised” and the detention of a
person who wishes to effect entry and who needs but does not yet have
authorisation to do so, can be, without any distortion of language, to
“prevent his effecting an unauthorised entry”. It does not accept that, as
soon as an asylum seeker has surrendered himself to the immigration
authorities, he is seeking to effect an “authorised” entry, with the result that
detention cannot be justified under the first limb of Article 5 § 1 (f). To
interpret the first limb of Article 5 § 1(f) as permitting detention only of a
person who is shown to be trying to evade entry restrictions would be to
place too narrow a construction on the terms of the provision and on the
power of the State to exercise its undeniable right of control referred to
above. Such an interpretation would, moreover, be inconsistent with
Conclusion No. 44 of the Executive Committee of the United Nations High
Commissioner for Refugees' Programme, the UNHCR's Guidelines and the
Committee of Ministers' Recommendation (see paragraphs 34-35 and 37
above), all of which envisage the detention of asylum seekers in certain
circumstances, for example while identity checks are taking place or when
elements on which the asylum claim is based have to be determined.
66. While holding, however, that the first limb of Article 5 § 1(f) permits
the detention of an asylum seeker or other immigrant prior to the State's