A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT 5 Domestic-law powers of detention (other than under the Anti-terrorism, Crime and Security Act 2001) The Government has powers under the Immigration Act 1971 (‘the 1971 Act’) to remove or deport persons on the ground that their presence in the United Kingdom is not conducive to the public good on national security grounds. Persons can also be arrested and detained under Schedules 2 and 3 to the 1971 Act pending their removal or deportation. The courts in the United Kingdom have ruled that this power of detention can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and that, if it becomes clear that removal is not going to be possible within a reasonable time, detention will be unlawful (R. v. Governor of Durham Prison, ex parte Singh [1984] All ER 983). Article 5 § 1 (f) of the Convention It is well established that Article 5 § 1 (f) permits the detention of a person with a view to deportation only in circumstances where ‘action is being taken with a view to deportation’ (Chahal v. the United Kingdom (1996) 23 EHRR 413 at paragraph 112). In that case the European Court of Human Rights indicated that detention will cease to be permissible under Article 5 § 1 (f) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive (paragraph 113). In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5 § 1 (f) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that Article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required. Derogation under Article 15 of the Convention The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be inconsistent with the obligations under Article 5 § 1 of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that ���action is being taken with a view to deportation’ within the meaning of Article 5 § 1 (f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom’s obligations under Article 5 § 1, the Government has decided to avail itself of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice.”