16
SAADI v. THE UNITED KINGDOM JUDGMENT
43. Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of
permissible grounds of deprivation of liberty, and no deprivation of liberty
will be lawful unless it falls within one of those grounds (see, inter alia,
Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000-III). In the present
case the Government's principal contention is that the detention was
justified under the first limb of Article 5 § 1(f); although they argue in the
alternative that it might also have been justified under the second limb of
that sub-paragraph. The Court must accordingly first ascertain whether the
applicant was lawfully detained “to prevent his effecting an unauthorised
entry into the country”.
B. Whether the deprivation of liberty was permissible under subparagraph (f) of Article 5 § 1
1. The Chamber judgment
44. In its judgment of 11 July 2006 the Chamber held, by four votes to
three, that the detention fell within the first limb of Article 5 § 1(f). The
Chamber observed that it was a normal part of States' “undeniable right to
control aliens' entry into and residence in their country” that States were
permitted to detain would-be immigrants who had applied for permission to
enter, whether by way of asylum or not. Until a potential immigrant had
been granted leave to remain in the country, he had not effected a lawful
entry, and detention could reasonably be considered to be aimed at
preventing unlawful entry.
45. The Chamber continued that detention of a person was a major
interference with personal liberty, and must always be subject to close
scrutiny. Where individuals were lawfully at large in a country, the
authorities might detain only if a “reasonable balance” was struck between
the requirements of society and the individual's freedom. The position
regarding potential immigrants, whether they were applying for asylum or
not, was different to the extent that, until their application for immigration
clearance and/or asylum had been dealt with, they were not “authorised” to
be on the territory. Subject, as always, to the rule against arbitrariness, the
Chamber accepted that the State had a broader discretion to decide whether
to detain potential immigrants than was the case for other interferences with
the right to liberty. Accordingly, there was no requirement in Article 5 § 1
(f) that the detention of a person to prevent his effecting an unauthorised
entry into the country be reasonably considered necessary, for example to
prevent his committing an offence or fleeing. All that was required was that
the detention should be a genuine part of the process to determine whether
the individual should be granted immigration clearance and/or asylum, and
that it should not otherwise be arbitrary, for example on account of its
length.