SAADI v. THE UNITED KINGDOM JUDGMENT - JOINT PARTLY DISSENTING OPINION 35 OF JUDGES ROZAKIS, TULKENS, KOVLER, HAJIYEV, SPIELMANN AND HIRVELÄ 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