Information Note on the Court’s case-law No. 165
July 2013
Suso Musa v. Malta - 42337/12
Judgment 23.7.2013 [Section IV]
Article 5
Article 5-1-f
Prevent unauthorised entry into country
Detention of asylym-seeker for period which, particularly in view of his conditions of detention, was unreasonable: violation

Facts – The applicant entered Malta in an irregular manner by boat in April 2011, was arrested by the police and placed in detention. He submitted an application for asylum and challenged his detention. In July 2012 the Immigration Appeals Board held that in the applicant’s case, had the asylum request still been pending, he could not have been kept in detention unless return proceedings were under way or he presented a risk of absconding. However, the situation had changed, given that on 2 April 2012 the applicant’s asylum request had been rejected by a final decision.
Before the European Court the applicant complained that his detention did not fall within any of the situations provided for by Article 5 and, more particularly, that its purpose had not been to prevent his unauthorised entry into Malta, given that he had been awaiting a decision on his asylum application and the consequent authorisation to enter or remain in Malta.
Law – Article 5 § 1 (f): In Saadi v. the United Kingdom the Grand Chamber had interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, “to prevent his effecting an unauthorised entry into the country”. It had considered that until a State had “authorised” entry to the country concerned, any entry was “unauthorised” and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be, without any distortion of language, to “prevent his effecting an unauthorised entry”. It had not accepted that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an “authorised” entry, with the result that detention could not be justified under the first limb of Article 5 § 1 (f). It had considered that to interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who had been shown to be trying to evade entry restrictions would have been 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. However, the Court’s case-law did not appear to offer specific guidelines as to when detention in an immigration context ceased to be covered by the first limb of Article 5 § 1 and fell under its second limb. The applicant’s argument to the effect that Saadi should not be interpreted as meaning that all member States may lawfully detain immigrants pending their asylum application, irrespective of national law, was not devoid of merit. Indeed, where a State which had gone beyond its obligations in creating further rights or a more favourable position enacted legislation explicitly authorising the entry or stay of immigrants pending an asylum application, any ensuing detention for the purpose of preventing an unauthorised entry might raise an issue as to the lawfulness of detention under Article 5 § 1 (f). Indeed, in such circumstances it would be hard to consider the measure as being closely connected to the purpose of the detention and to regard the situation as being in accordance with domestic law. In fact, it would be arbitrary and thus run counter to the purpose of Article 5 § 1 (f) to interpret clear and precise domestic-law provisions in a manner contrary to their meaning. In Saadi the national law (albeit allowing temporary admission) had not provided for the applicant to be granted formal authorisation to stay or to enter the territory, and therefore no such issue had arisen. Therefore the question as to when the first limb of Article 5 ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law.
As to the facts of the present case, the Court observed that it was faced with conflicting interpretations of Legal Notice 243 of 2008, and particularly of Regulation 12(1) thereof, which provided that an applicant should be “allowed to enter or remain in Malta pending a final decision of his application”. The Government had submitted that this provision did not oblige them to provide the applicant with any authorisation to stay. However, in the determination of the applicant’s case, the Immigration Appeals Board had upheld the argument that the provision authorised entry and that therefore in principle the circumstances of the applicant’s case had been such that he could not have been detained. It was not for the Court to interpret the intention of the legislature one way or another. However, it might well be that what had been intended was for the provision to reflect international standards to the effect that an asylum seeker might not be expelled pending an asylum application, without necessarily requiring that an individual be granted formal authorisation to stay or to enter the territory. The fact that the provision, while establishing the conditions to be met by the asylum seeker, did not provide for any formal authorisation procedure or for the issuance of any relevant documentation lent support to this interpretation. In this situation the Court considered that the first issue that arose concerned the quality of the domestic law. While it was clear that Article 5 in conjunction with Article 14 of the Act had authorised the detention of prohibited immigrants, it was undeniable that Legal Notice 243, which “applied notwithstanding the provisions of any other law to the contrary”, had created some confusion as to the extent of the legal basis, in particular, whether detention under the Immigration Act was lawful (in terms of the domestic law) only up to the moment an individual applied for asylum or continued to be lawful pending the determination of the asylum claim. However, while considering that clarification of the legal framework was called for in the domestic system, the Court was ready to accept that the detention had had a sufficiently clear legal basis, namely Article 5 in conjunction with Article 14 of the Act, and that, given that it had not been established that the applicant had actually been granted formal authorisation to stay – the Court in fact noted that the applicant had not been issued with the relevant written documentation – his detention had fallen under the first limb of Article 5 § 1 (f).
As whether the applicant’s detention had been arbitrary, the Court noted a series of odd practices on the part of the domestic authorities, such as the by-passing of the voluntary departure procedure and the across-the-board decisions to detain, which the Government considered did not require individual assessment. In the light of these practices the Court had reservations as to the Government’s good faith in applying an across-the-board detention policy with a maximum duration of eighteen months. Furthermore, the appropriateness of the place and the conditions of the detention raised concerns. Periods of three months’ detention pending a determination of an asylum application had already been considered to be unreasonably lengthy, when coupled with inappropriate conditions. Hence, the Court could not consider a period of six months to be reasonable, particularly in the light of the conditions of detention described by various independent entities. It followed that the applicant’s detention up to the date of determination of his asylum application had not been compatible with Article 5 § 1 (f) of the Convention, which had therefore been violated.
Conclusion: violation (unanimously).
The Court also found a violation of 5 § 1 (f) in respect of the applicant’s detention following the determination of his asylum claim and of Article 5 § 4 on account of the lack of effective and speedy remedy under domestic law by which to challenge the lawfulness of detention.
Article 41: EUR 24,000 in respect of non-pecuniary damage.
(See also Aden Ahmed v. Malta, no. 55352/12, 23 July 2013)

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