SAADI v. THE UNITED KINGDOM JUDGMENT - JOINT PARTLY DISSENTING OPINION 33
OF JUDGES ROZAKIS, TULKENS, KOVLER, HAJIYEV, SPIELMANN AND HIRVELÄ
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