European Court of Human Rights

THIRD SECTION

CASE OF M.B. v. THE NETHERLANDS

(Application no. 71008/16)

JUDGMENT

STRASBOURG

23 April 2024

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of M.B. v. the Netherlands,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Yonko Grozev,
 Georgios A. Serghides,
 Peeter Roosma,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 71008/16) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Syrian national, Mr M.B. ("the applicant"), on 24 November 2016;

the decision to give notice to the Government of the Kingdom of the Netherlands ("the Government") of the complaint concerning Article 5 of the Convention;

the decision not to disclose the applicant's name;

the parties' observations;

Having deliberated in private on 26 September 2023 and 12 March 2024,

Delivers the following judgment, which was adopted on the latter date:

INTRODUCTION

1.  The case concerns the alleged unlawfulness of the applicant's immigration detention pending the assessment of his asylum application on the ground that he posed a threat to public order.

THE FACTS

2.  The applicant was born in 1997. He was represented by Mr S. Thelosen, a lawyer practising in Amsterdam. At the time he lodged his application he was being held in immigration detention in Rotterdam.

3.  The Government were represented by their Agents, Mr R. Böcker and Ms K. Adhin, both of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

1. THE CIRCUMSTANCES OF THE CASE
   1. Asylum application and criminal proceedings

5.  The applicant left Syria in December 2013. In early 2014 he arrived in Türkiye, where he stayed until the end of September 2015. After travelling through several countries, he entered the Netherlands in October 2015. On 26 October 2015 he applied for asylum. A registration interview (aanmeldgehoor) took place on 28 October 2015. The applicant was provided with accommodation in a reception centre for asylum-seekers.

6.  Two other asylum-seekers, who were staying in the same reception centre as the applicant, informed the police that the applicant had told them that he had been involved in a terrorist organisation in Syria and that he had, inter alia, detonated car bombs. A criminal investigation was opened in respect of the applicant. On 30 November 2015 he was arrested on suspicion of participation in an organisation which had as its purpose the commission of terrorist offences. The applicant was placed in pre-trial detention.

7.  The applicant was summoned to stand trial on 28 July 2016 before the Regional Court (rechtbank) of Rotterdam on charges of participating in a terrorist organisation between March 2013 and October 2015. The public prosecutor, in his closing address to the court, argued that while there was lawful evidence for a conviction, he was not convinced, beyond reasonable doubt, that the applicant had committed the criminal offences and therefore sought the applicant's acquittal.

8.  On 29 August 2016 the Rotterdam Regional Court convicted the applicant on the charges against him and sentenced him to ten months' imprisonment, with reduction of the time he had already spent in pre-trial detention. It relied on, inter alia, statements made by the applicant during the hearing, a witness statement, a tweet by the applicant from 2013 in which he had stated that he belonged to Al Qaida, WhatsApp conversations from 2015 and numerous photos and videos found on his mobile phone. In its reasoning the court explained why, unlike the public prosecutor, it considered that the charge had been lawfully and convincingly proven (wettig en overtuigend bewezen). Both the applicant and the public prosecutor lodged an appeal (see paragraph 18 below).

9.  The applicant's detention under criminal law, having attained the length of the prison sentence imposed by the Regional Court, was discontinued on 23 September 2016.

2. Immigration detention proceedings

10.  On the same day the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) ordered the applicant's placement in immigration detention (vreemdelingenbewaring) under section 59b(1)(b) and (d) of the Aliens Act 2000 (Vreemdelingenwet 2000; see paragraph 24 below). The Deputy Minister considered that section 59b(1)(b) applied because the applicant's detention was necessary with a view to obtaining information for the assessment of his asylum application and that section 59b(1)(d) applied because the applicant represented a threat to national security or public order in view of his criminal conviction. The detention order provided the following reasoning, inter alia:

"This [detention order] is based on the following [grounds]: the person concerned has been convicted of a serious crime, namely participating in a criminal organisation with intent to commit acts of terrorism ...

The person concerned was arrested shortly after his entry into the Netherlands and convicted of a crime which is perceived as very serious and [which] also concerns national security. Therefore, the person concerned poses a genuine, present and sufficiently serious threat to a fundamental interest of society. The mere fact that the person concerned has been detained as of 30 November 2015 does not mean that the threat he poses has ceased to exist, thus the threat is still present. The detention of the person concerned is necessary with a view to collecting information necessary for the assessment of his application for a residence permit [and] because of the risk that the person concerned will abscond. In relation to him it has become apparent that [1] there is a risk of absconding, [2] [he] has not entered the Netherlands in a prescribed manner, [3] [he] temporarily evaded supervision [by the immigration authorities] of aliens, in violation of legislation concerning aliens, [4] [he] has not complied with obligations imposed on him by Chapter 4 of the Aliens Act (in that he has not directly reported himself to the authorities), [5] [he] does not have a permanent or temporary home or place of residence (woon-of verblijfplaats), [6] [he] does not have sufficient resources to support himself, and [7] [he] is suspected of an offence or has been convicted of one."

In the light of the reasoning above, the Deputy Minister considered that a less restrictive measure would not be appropriate. He further noted that the prospect of deportation was not a required condition for immigration detention under section 59b of the Aliens Act 2000.

11.  On 23 September 2016 the applicant lodged an appeal against the detention order. He argued, inter alia, that it had been in breach of Article 5 § 1 (f) of the Convention because there was no prospect of his deportation to Syria in view of the general situation there. Moreover, the decision on his asylum application was still pending and no return decision had been taken. In the view of the applicant, this constituted a crucial difference between the situation in his case and that in the case of N. in which the Court of Justice of the European Union (hereinafter "the CJEU") had delivered a judgment on 15 February 2016 (C-601/15 PPU, Grand Chamber judgment, EU:C:2016:84; see paragraph 34 below). Furthermore, he argued that by relying on the criminal conviction without taking into account the views expressed by the public prosecutor, the Deputy Minister had given insufficient reasons as to why the applicant posed a threat to national security or public order and why a less restrictive measure had not been appropriate.

12.  By a judgment of 10 October 2016 (ECLI:NL:RBDHA:2016:12415), the Regional Court of The Hague sitting in 's-Hertogenbosch dismissed the applicant's appeal. The court noted that section 59b(1) of the Aliens Act 2000 transposed Article 8(3) of Directive 2013/33/EU ("the Reception Conditions Directive"; see paragraph 33 below) into domestic law. The court held, inter alia:

"6.  ... In its judgment in N., the CJEU ruled that consideration of point (e) of the first sub-paragraph of Article 8(3) of Directive 2013/33/EU disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union. Although the case which prompted the Administrative Jurisdiction Division to ask the CJEU preliminary questions specifically concerned an alien who had been issued with a return decision, the CJEU phrased its response in general terms: point (e) of the first sub-paragraph of Article 8(3) of Directive 2013/33/EU is compatible with Article 6 of the Charter. The court therefore finds the applicant's argument that that ruling is only relevant for aliens who have been issued with a return decision ill-founded.

...

8.  ... In the light of the CJEU's conclusion that detention under Article 8(3)(e) of the Reception Conditions Directive does not violate Article 6 of the Charter and assuming that Article 6 of the Charter provides at least the same protection as Article 5 [of the Convention], it already follows that the absence of an expulsion procedure would not lead to a violation of Article 5 [of the Convention]. The considerations of the CJEU do not take away from the fact that the treaty provisions in the [Convention] have independent effect in the Dutch legal order and that the court can also directly review the contested decision against Article 5 [of the Convention].

..."

The Regional Court, citing paragraphs 65 and 66 of Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008, see paragraph 53 below), found that the holding in immigration detention of a person who had not been authorised by the authorities to enter and stay in the country was permissible under Article 5 of the Convention, provided that it was not arbitrary. As the applicant's entry into the Netherlands had not been authorised and he was still awaiting a decision on his asylum application, the situation at hand was not one of "authorised entry". It further held that his detention did not contravene the prohibition of arbitrariness, given the underlying circumstance of the applicant's criminal conviction.

13.  The Regional Court reiterated that the prospect of the applicant's expulsion was not a requirement for immigration detention based on section 59b of the Aliens Act 2000. It further noted that, notwithstanding the views expressed by the public prosecutor, the applicant had been convicted by the criminal court of participation in a terrorist organisation. On this basis the Deputy Minister had been justified in regarding the applicant as a threat to public order in accordance with section 59b(1)(d) and in not applying a less restrictive measure. The Regional Court found that the Deputy Minister had failed to provide sufficient reasons as to the risk that the applicant would abscond and therefore found that the detention order could not be based on section 59b(1)(b). However, it found that section 59b(1)(d) in itself had provided a sufficient legal basis for the applicant's detention.

14.  A further appeal by the applicant against the Regional Court's ruling was dismissed by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) with summary reasoning on 8 November 2016. No further appeal lay against that judgment.

2. DEVELOPMENTS AFTER THE APPLICATION TO THE COURT WAS LODGED

15.  The applicant lodged an appeal against the continuation of his immigration detention. On 25 November 2016 the Regional Court of The Hague sitting in 's-Hertogenbosch dismissed this appeal. On the same day the applicant lodged a new appeal against his continued detention, arguing that the Regional Court had failed to take a decision within the seven-day period prescribed by law after closing the trial examination (see Section 94 (5) of the Aliens Act, paragraph 25 below).

16.  On 13 December 2016 the Regional Court declared the applicant's appeal well-founded. It held that immigration detention had been in breach of this procedural rule as from 19 November 2016, lifted the detention order and awarded the applicant compensation for non-pecuniary damage in respect of the period from 19 November until 12 December 2016.

17.  On the day that the applicant's immigration detention was lifted, a measure restricting his freedom of movement (vrijheidsbeperkende maatregel) was imposed on him, meaning that he had to report to the authorities every day and request leave to exit the municipality where he was staying.

18.  In the criminal proceedings before the appellate court the applicant pleaded not guilty and the public prosecutor requested that that court quash the first-instance court's judgment, convict the applicant as charged (see paragraph 7 above) and sentence him to three years' imprisonment.

19.  In a judgment of 12 December 2017 (ECLI:NL:GHDHA:2017:3575), the Court of Appeal (gerechtshof) of The Hague considered that it had no jurisdiction as regards one of the charges and noted that the remaining charges related only partly to the time that the applicant had been in Syria. Since the information found on his mobile phone (see paragraph 8 above) dated from the period after he had left Syria, it could not be used as corroborative evidence. In respect of the relevant charges, the applicant was acquitted for lack of sufficient evidence. The Supreme Court confirmed this judgment.

20.  The measure restricting the applicant's freedom of movement was lifted by a judicial ruling of 18 January 2018.

21.  On 29 March 2018 the applicant was granted an asylum-based residence permit with retroactive effect per 26 October 2015, with a validity of five years.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. DOMESTIC LAW AND PRACTICE
   1. Aliens Act 2000

22.  Section 28(1) of the Aliens Act 2000 provides that the competent Minister has the authority to, inter alia, grant, reject or decline to process, an application for an asylum-based residence permit for a maximum duration of five consecutive years.

23.  Section 8(f) of the Aliens Act 2000 provides, in so far as relevant, that pending a decision on an application for a residence permit as referred to in section 28, an alien only has lawful residence in the Netherlands in circumstances where, under or pursuant to that Act or on the basis of a judicial decision, the expulsion of the applicant should not take place until the decision on the asylum application has been given.

24.  Section 59b of the Aliens Act 2000, in so far as relevant, provides:

"1.  An alien who has lawful residence based on section 8(f) ... may, in so far as this concerns an application for the issue of a residence permit as referred to in section 28, be detained (in bewaring gesteld) by the Minister, if:

...

(b)  the detention is necessary in order to determine those elements needed for the assessment of an application for a residence permit for a fixed period, as referred to in section 28, in particular when there is a risk of absconding;

...

(d)   the alien represents a threat to national security or public order within the meaning of point (e) of Article 8(3) of the Reception Conditions Directive.

...

4.  The detention under subsection 1(d) shall not exceed six months.

5.  The Minister may extend the detention under subsection 1(d) by a maximum of nine months in the event of:

(a)  complex factual and legal circumstances relating to the examination of the application for a residence permit as referred to in section 28 ... ; and

(b)  a significant interest relating to public order or national security."

25.  Section 94 of the Aliens Act 2000, as in force at the material time, provided, in so far as relevant:

"1.  [The competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty (vrijheidsontnemende maatregel) as referred to in section ... 59b ... no later than the twenty-eighth day after notification of that decision, unless the alien himself or herself has already lodged an appeal. As soon as the Regional Court has received the notification, the alien shall be considered to have lodged an appeal against the decision imposing deprivation of liberty. The appeal shall also constitute a claim for damages.

...

5.  The Regional Court shall deliver its decision orally or in writing. The written decision shall be taken within seven days of the conclusion of the Regional Court's examination ..."

2. Aliens Decree 2000

26.  The Aliens Decree 2000 (Vreemdelingenbesluit 2000) was issued pursuant to the Aliens Act 2000 and further clarifies the application of that Act.

27.  Section 3.1(2) of the Aliens Decree 2000 provides that, save several exceptions that are not relevant to the present case, an alien who has applied for the granting of an asylum-based residence permit (see paragraph 23 above) may not be expelled.

28.  Section 5.1a(2) of the Aliens Decree 2000 provides that an alien referred to in section 59b(1) of the Act may be detained in the interest of public order, on one of the grounds referred to in section 59b(1) of the Act (see paragraph 24 above) and provides for the applicability of Article 5.1c.

29.  Section 5.1c (4) of the Aliens Decree 2000 provides that the ground for detention referred to in section 59b(1)(d) of the Act applies in any case if there is an application procedure in which Article 1F of the Refugee Convention is likely to be applied.

3. Legislative history

30.  The Explanatory Memorandum (Memorie van Toelichting) to the bill transposing the obligations arising under the Asylum Procedures Directive (see paragraph 32 below) and the Reception Conditions Directive (see paragraph 33 below) into domestic law stated that the obligation arising under the Article 9 of the Asylum Procedures Directive was already incorporated in section 8 of the Aliens Act 2000 and would be included in an amended version of section 3(1) of the Aliens Decree 2000 (Lower House of Parliament, parliamentary year 2014-15, 34 088, no. 3, p. 47).

31.  Section 59b of the Aliens Act 2000 was introduced to transpose the obligations arising under the third paragraph of Article 8 of the Reception Conditions Directive into domestic law (pp. 33-37). With regard to section 59b(1)(d) of the Aliens Act 2000, the memorandum states as follows:

"Section 59b(1)(d), equivalent to Article 8[(3)](e) of the Reception Conditions Directive, relates to situations in which there is not yet a very concrete prospect of removal - after all, the application has yet to be processed - but there is nevertheless a compelling interest, in view of the person of the alien, to detain him. Examples are aliens who have a criminal record, aliens who pose a threat to State security or aliens to whom Article 1F of the 1951 Refugee Convention might apply in the asylum procedure."

2. relevant international law and practice
   1. European Union
      1.  Asylum Procedures Directive

32.  Article 9 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (OJ 2013, L180, p. 60; "the Asylum Procedures Directive") provides:

"1.  Applicants shall be allowed to remain in the Member State for the sole purpose of the procedure until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit. ..."

2. Reception Conditions Directive

33.  The relevant parts of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (OJ 2013 L180, p. 96; "the Reception Conditions Directive") read as follows:

Article 8. Detention

"1.  Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with [the Asylum Procedures Directive].

2.  When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.

3.  An applicant may be detained only:

...

(b)  in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;

...

(e)  when protection of national security or public order so requires;

...

The grounds for detention shall be laid down in national law."

3. Case-law of the CJEU

34.  In the case of N. (C-601/15 PPU, Grand Chamber judgment, EU:C:2016:84) the CJEU was asked, by way of a request for a preliminary ruling, to consider the validity of point (e) of the first sub-paragraph of Article 8(3) of the Reception Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights of the European Union. The case concerned a rejected asylum-seeker who, having been issued with a return decision and an entry ban, had been placed in immigration detention subsequent to the end of his criminal detention, with a view to assessing if he was fit to be heard with respect to his fourth asylum application. The CJEU noted that Article 6 of the Charter corresponded to the rights guaranteed by Article 5 of the Convention and that the limitations which might legitimately be imposed on the exercise of the rights laid down in Article 6 of the Charter could not exceed those permitted by the Convention. The relevant parts of that judgment read as follows:

"50. Under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. In observance of the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

...

52. ... point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 does not affect the essence of the right to liberty laid down in Article 6 of the Charter. That provision of the directive does not render the guarantee of that right less secure and ... the power that it confers on Member States enables them to detain an applicant only on the basis of his individual conduct and under the exceptional circumstances referred to in the same provision ... .

53. Given that the objective pursued by point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 is the protection of national security and public order, it must be held that a measure ordering detention which is based on that provision genuinely meets an objective of general interest recognised by the European Union. Moreover, the protection of national security and public order also contributes to the protection of the rights and freedoms of others. Article 6 of the Charter states in this regard that everyone has the right not only to liberty but also to security of person (see, to that effect, judgment in Digital Rights Ireland and Others, C-293/12 and C-594/12, EU:C:2014:238, paragraph 42).

...

55. ... the detention of an applicant where the protection of national security or public order so requires is, by its very nature, an appropriate measure for protecting the public from the threat which the conduct of such a person represents and is thus suitable for attaining the objective pursued by point (e) of the first subparagraph of Article 8(3) of Directive 2013/33.

...

63. ... it is apparent from point 4 of Section 3 of the Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM(2008) 815 final), which formed the basis for Directive 2013/33, that the ground for detention relating to protection of national security and public order ... is based on the Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers of 16 April 2003 and on the United Nations High Commissioner for Refugees' (UNHCR) Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of 26 February 1999 ... .

78. As the wording of [Article 5 § 1 (f) of the Convention] indicates, it permits the lawful detention of a person against whom action is being taken with a view to deportation or extradition. In this regard, although the European Court of Human Rights held in the judgment in Nabil and Others v. Hungary [no. 62116/12, § 29, 22 September 2015] that a deprivation of liberty based on [Article 5 § 1 (f) of the Convention] will be justified only for as long as deportation or extradition proceedings are in progress and that if such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under that provision, that judgment does not exclude the possibility of a Member State ordering - in such a way that the guarantees provided for by that provision are observed - the detention of a third-country national in respect of whom a return decision accompanied by an entry ban was adopted prior to the lodging of an application for international protection.

79.  The European Court of Human Rights has also stated that the existence of a pending asylum case does not as such imply that the detention of a person who has made an asylum application is no longer 'with a view to deportation' - since an eventual rejection of that application may open the way to the enforcement of removal orders that have already been made ([ibid.], § 38).

80.  Thus, ... a procedure opened under [the Returns Directive], in the context of which a return decision, accompanied, as the case may be, by an entry ban, has been adopted, must be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance and, accordingly, action under that procedure is still 'being taken' for the purposes of the second limb of [Article 5 § 1 (f) of the Convention].

81.  It should also be noted that, according to the case-law of the European Court of Human Rights relating to [Article 5 § 1 of the Convention], if the execution of a measure depriving a person of liberty is to be in keeping with the objective of protecting the individual from arbitrariness, that means, in particular, that there can be no element of bad faith or deception on the part of the authorities, that execution of the measure is consistent with the purpose of the restrictions permitted by the relevant sub-paragraph of [Article 5 § 1 of the Convention] and that the deprivation of liberty concerned is proportionate in relation to the ground relied on (see, to that effect, judgment of the European Court of Human Rights in Saadi v. the United Kingdom [GC], no. 13229/03, §§ 68-74, ECHR 2008). As is apparent from the reasoning set out in connection with the examination of its validity in the light of Article 52(1) of the Charter, point (e) of the first subparagraph of Article 8(3) of [the Reception Conditions Directive] - whose scope, in view of the context of the provision, is strictly circumscribed - satisfies those requirements.

82. The answer to the question referred for a preliminary ruling is therefore that consideration of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 has disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter."

35.  In the case of K. (C-18/16, judgment of 14 September 2017, EU:C:2017:680) the CJEU was called upon to determine the validity of points (a) and (b) of the first sub-paragraph of Article 8(3) of the Reception Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights of the European Union. That case concerned a foreign national who had arrived at Schiphol Airport in the Netherlands on 30 November 2015 with the intention of flying to Edinburgh on the same day. During a check of documents, carried out before he was due to board the flight to Edinburgh, he was suspected of using a false passport and remanded in custody. On 16 December 2015 the criminal court declared the action brought by the public prosecutor inadmissible and ordered K.'s release. On 17 December 2015 K. lodged an application for asylum. On the same day he was placed in immigration detention in accordance with section 59b(1)(a) and (b) of the Aliens Act 2000 in order to establish his identity or nationality and to obtain data necessary for the assessment of his application, as there was a risk of his absconding. In an appeal against the detention order, the applicant argued that Article 8(3) of the Reception Conditions Directive was contrary to Article 5 of the Convention and, therefore, contrary to Article 6 of the Charter of Fundamental Rights of the European Union. At that time no return decision had been issued against him. A request for a preliminary ruling was submitted to the CJEU.

36.  In its judgment, the CJEU considered that the fact that the applicant in the main proceedings had not been subject to a return decision appeared to exclude the possibility that action was being taken against him with a view to deportation or extradition, for the purposes of the second limb of Article 5 § 1 (f) of the Convention. The CJEU further held as follows:

"52. As regards the guarantee enshrined in the first limb of [Article 5 § 1 (f) of the Convention], in accordance with which no one is to be deprived of his liberty, except in the case of the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country, as interpreted by the European Court of Human Rights, it should be noted that that guarantee does not preclude necessary detention measures being taken against third-country nationals who have made an application for international protection, provided that such a measure is lawful and implemented in accordance with the objective of protecting the individual from arbitrariness (see, to that effect, ... Saadi [cited above, §§ 64-74, and] Mahamed Jama v. Malta, [no. 10290/13, §§ 136-40, 26 November 2015]).

53. As is apparent from the reasoning set out in connection with the examination of the validity, in the light of Article 52(1) of the Charter, of the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33, that provision, whose scope is strictly circumscribed, satisfies those requirements.

54. It follows from all the foregoing considerations that the answer to the question referred is that the examination of the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 has disclosed nothing capable of affecting the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter."

2. Council of Europe

37.  In 2003 the Committee of Ministers of the Council of Europe adopted Recommendation Rec (2003)5 that stated, inter alia:

"The aim of detention is not to punish asylum-seekers. Measures of detention ... may be resorted to only in the following situations: (a) when their identity, including nationality, has in case of doubt to be verified, in particular when asylum-seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state; (b) when elements on which the asylum claim is based have to be determined which, in the absence of detention, could not be obtained; (c) when a decision needs to be taken on their right to enter the territory of the state concerned; or (d) when protection of national security and public order so requires. ... Measures of detention of asylum-seekers should be applied only after a careful examination of their necessity in each individual case. Those 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 instruments and by the case-law of the European Court of Human Rights. ... Alternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention. ..."

3. United Nations

38.  Article 1F of the Convention relating to the Status of Refugees (Geneva, 1951: "the Refugee Convention") reads as follows:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

39.  On 13 October 1986, the Executive Committee of the United Nations High Commissioner for Refugees' Programme adopted the following Conclusion relating to the detention of asylum-seekers (no. 44 (XXXVII) - 1986). The Conclusion was expressly approved by the General Assembly on 4 December 1986 (Resolution 41/124) and reads, insofar as relevant, as follows:

"The Executive Committee,

...

(b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order;"

...

(h)      Reaffirmed that refugees and asylum-seekers have duties to the country in which they find themselves, which require in particular that they conform to its laws and regulations as well as to measures taken for the maintenance of public order;" (...)

40.  To give effect to the above Conclusion, the United Nations High Commissioner for Refugees (UNHCR) published Guidelines on the detention of asylum-seekers in 1995, which were revised and reissued in 2012. Guideline 4 provides that detention must not be arbitrary, and any decision to detain must be based on an assessment of the individual's particular circumstances. Guideline 4.1 further provides:

"Detention can only be exceptionally resorted to for a legitimate purpose. Without such a purpose, detention will be considered arbitrary, even if entry was illegal. The purposes of detention ought to be clearly defined in legislation and/or regulations (see Guideline 3). In the context of the detention of asylum-seekers, there are three purposes for which detention may be necessary in an individual case, and which are generally in line with international law, namely public order, public health or national security.

4.1.1 To protect public order

To prevent absconding and/or in cases of likelihood of non-cooperation

...

In connection with accelerated procedures for manifestly unfounded or clearly abusive claims

...

For initial identity and/or security verification

...

In order to record, within the context of a preliminary interview, the elements on which the application for international protection is based, which could not be obtained in the absence of detention."

THE LAW

1. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

41.  The applicant complained that he had been placed in immigration detention in breach of Article 5 § 1 (f) of the Convention, which reads as follows:

"1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition ..."

42.  The Government contested that argument.

1. Admissibility

43.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits
   1. The parties' submissions

(a)   The applicant

44.  In his application to the Court, the applicant argued, relying on Nabil and Others v. Hungary (no. 62116/12, 22 September 2015), that neither the competent authorities nor the domestic courts had examined whether there was a real prospect that he would be expelled to Syria or any third country if his asylum application were to be rejected. In his view, his detention had thus been in breach of the second limb of Article 5 § 1 (f) of the Convention. In reply to the Government's observation that the applicant's detention had been permitted under the first limb of Article 5 § 1 (f) with a view to preventing unauthorised entry into the country (see paragraph 47 below), the applicant argued that this ground for detention had been insufficiently reflected in the domestic authorities' decisions, and thus he could have reasonably assumed that the second limb of Article 5 § 1 (f) applied.

45.  The applicant further argued that his detention did not fall within the scope of the first limb of Article 5 § 1 (f) noting that it could not "prevent his effecting an unauthorised entry into the country" because he had already entered the territory of the Netherlands where he had applied for asylum and where according to national law he resided lawfully until a decision on his asylum application had been taken. In the applicant's opinion the first limb of Article 5 § 1 (f) only applied to those who had been refused entry into the Netherlands and had been detained on the basis of section 6(2) of the Aliens Act 2000 in the "border procedure". It was thus the applicant's contention that section 59b of the Aliens Act 2000 could not serve as a legal basis for detention to prevent unauthorised entry. In that connection he relied on two arguments. Firstly, he pointed to the CJEU's judgment in N. (see paragraph 34 above), from which he concluded that Article 8 of the Reception Conditions Directive was compatible with Article 5 § 1 (f) only in so far as it was aimed at deportation. Secondly, the applicant asserted that his case differed from Saadi (cited above) because he had entered the territory of the Netherlands over land and, after he had lodged his asylum application, he had been accommodated in a reception centre and had been residing in the Netherlands lawfully and at liberty for one month prior to being detained on criminal charges, whereas the applicant in Saadi had not been provided with accommodation in a reception centre after he had applied for asylum and had only had 'limited access' to the United Kingdom as he had been required to report to the authorities daily.

46.  Lastly, the applicant argued that his detention had been arbitrary and thus in violation with Article 5 § 1 (f) of Convention. He denied that he had posed a threat to public order within the meaning of section 59b(1)(d) of the Aliens Act. He argued that the evidence in his criminal case had been weak and that the public prosecutor in the proceedings before the first-instance court had expressed the view that the charge had not been convincingly proven. Even assuming that the authorities had rightfully established that he posed such a threat, this ground could not in itself justify his detention and had not been closely connected to the purpose of preventing his unauthorised entry.

(b)   The Government

47.  The Government argued that the applicant's immigration detention had been permitted under the first limb of Article 5 § 1 (f) of the Convention, as it had been aimed at preventing his effecting an unauthorised entry into the country. The second limb of that provision, to which the applicant's arguments referred, did not apply because such detention could only occur after an asylum application had been assessed and denied. In the present case such a decision had not been taken. Therefore, there had been no need to consider the possibility of the applicant's deportation.

48.  The Government submitted that the applicant, having travelled to the Netherlands, made himself available to the Dutch immigration authorities in connection with his application for asylum. The Dutch authorities did not grant him permission to stay other than respecting the right that applies to all asylum-seekers, which right permits them to stay in the country while their application for asylum is being processed. The Government argued that this situation cannot in itself warrant the conclusion that the asylum-seeker had effected lawful entry into the country. In this respect they noted that the "lawful residence" to which the applicant referred, was based on section 8(f) of the Aliens Act 2000 (see paragraph 23 above). This provision was an implementation of Article 9(1) of the Asylum Procedures Directive (see paragraphs 30 and 32 above), which provides that persons who have applied for international protection shall be allowed to remain in a member State of the European Union for the sole purpose of the procedure until the determining authority has made a decision. Referring to Saadi, § 65 (see paragraph 53 below) and Suso Musa v. Malta (no. 42337/12, 23 July 2013), § 97 (see paragraph 54 below), the Government maintained that this never amounted to authorised entry, permission to stay or recognition of the applicant's residence rights.

49.  As regards the legal basis for the applicant's immigration detention, the Government noted that section 59b(d) of the Aliens Act 2000, which had been introduced to transpose Article 8(3)(e) of the Reception Conditions Directive, in conjunction with the provisions of the Aliens Decree 2000, had provided a sufficient legal basis. The Government further noted that the protection of public order and national security was generally accepted as a ground for immigration detention. The finding that the applicant posed a threat to public order or national security had been firmly based on his criminal conviction for participating in a terrorist organisation and this was not altered by the fact that an appeal against his conviction had been lodged. The Government further noted that the decisions by the national authorities concerning his detention had contained sufficient reasoning and had addressed all the relevant legal and factual circumstances. They also noted that the applicant had not made any comments on the place and conditions of his detention. They further submitted that during the applicant's immigration detention the focus had been on the processing of his asylum application which had included a complex assessment of various aspects, such as his involvement with armed groups in Syria on which he had given contradictory statements during two interviews conducted with him pending his immigration detention. His detention had, moreover, not lasted an unreasonably long time. In the light of the foregoing, the Government were of the opinion that the applicant's detention could not be branded as "arbitrary".

2. The Court's assessment

(a)   General principles

50.  The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Deprivation of liberty is only permissible in case of one of the situations listed in sub-paragraphs (a) to (f) of Article 5 § 1. One of the exceptions, contained in sub-paragraph (f) of Article 5 § 1, permits the State to control the liberty of aliens in an immigration context (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 88-89, 15 December 2016, with further references).

51.  The general principles concerning Article 5 §1 (f) of the Convention relevant to the case at hand are set out in Saadi (cited above, §§ 61-74).

(i)      The meaning of the phrase "to prevent his effecting an unauthorised entry into the country"

52.  In the case of Saadi the Court was called upon for the first time to interpret the meaning of the words in the first limb of Article 5 § 1 (f), "... lawful ... detention of a person to prevent his effecting an unauthorised entry into the country ...". The respondent Government in their submissions to the Court had reasoned that Article 5 § 1 (f) recognised that there might be detention in conjunction with the State's deciding whether or not to grant authorisation, in the exercise of its sovereign role to control the entry into, and presence of aliens in, its territory (§ 48). The applicant, on the other hand, had argued that the purpose defined by the first limb of Article 5 § 1 (f) was to prevent unlawful immigration, that is, entry and residence in a country by the circumvention of immigration control, and had noted that it was clear from the facts of his case that such a situation did not apply to him as prior to his immigration detention he had applied for asylum and had been lawfully present in the United Kingdom with "temporary admission", an "authorised" status in fact and law (§ 51).

53.  In its judgment, the Court reiterated that subject to their obligations under the Convention, States enjoy an undeniable sovereign right to control aliens' entry into and residence in their country and that it is a necessary adjunct to this right that States are permitted under Article 5 § 1 (f), as an exception to the general rule set out in Article 5 § 1 that everyone has the right to liberty, to detain a person who has applied for permission to enter, whether by way of asylum or not (§ 64). The Court continued its reasoning as follows:

"65.  On this point, the Grand Chamber agrees with the Court of Appeal, the House of Lords and the Chamber that, until a State has "authorised" entry to the country, any entry is "unauthorised" and the detention of a person who wishes to effect entry and who needs but does not yet have authorisation to do so can be, without any distortion of language, to "prevent his effecting an unauthorised entry". It does not accept that as soon as an asylum-seeker has surrendered himself to the immigration authorities, he is seeking to effect an "authorised" entry, with the result that detention cannot be justified under the first limb of Article 5 § 1 (f). To interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who is shown to be trying to evade entry restrictions would be 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 referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion no. 44 of the Executive Committee of the United Nations High Commissioner for Refugees' Programme, the UNHCR's Guidelines and the Committee of Ministers' Recommendation (see paragraphs 34-35 and 37 above), all of which envisage the detention of asylum-seekers in certain circumstances, for example while identity checks are taking place or when elements on which the asylum claim is based have to be determined.

66.  While holding, however, that the first limb of Article 5 § 1 (f) permits the detention of an asylum-seeker or other immigrant prior to the State's grant of authorisation to enter, the Court emphasises that such detention must be compatible with the overall purpose of Article 5, which is to safeguard the right to liberty and ensure that no one should be dispossessed of his or her liberty in an arbitrary fashion."

54.  As regards the scope of the first limb of Article 5 § 1 (f), the Court in its judgment Suso Musa, cited above, reiterated the principles set out in Saadi and noted, in addition (§§ 97-99), that where a State had gone beyond its obligations and enacted legislation explicitly authorising the entry or stay of asylum-seekers pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry might raise an issue under Article 5 § 1 (f). Emphasising that it was not for the Court to interpret the intention of the legislature one way or another, it considered that a legal provision that allowed asylum-seekers to enter or remain in Malta pending a final decision on their application did not necessarily require that an individual be granted formal authorisation to stay or to enter the territory, as it might well be that the provision in question was simply intended to reflect international standards to the effect that an asylum-seeker could not be expelled pending the assessment of an asylum claim. The Court held that the question as to when the first limb of Article 5 § 1 (f) ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law (see Suso Musa, cited above, § 97 in fine). Despite being faced with some conflicting interpretations in that particular case, the Court was ready to accept that the applicant's detention had had a sufficiently clear legal basis and fell under the first limb of Article 5 § 1 (f). In Aboya Boa Jean v. Malta (no. 62676/16, §§ 57-60, 2 April 2019), the Court reached similar conclusions.

(ii)    The notion of arbitrary detention in the context of Article 5

55.  It is well established in the Court's case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be "lawful". Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of "arbitrariness" in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67, with further references).

56.  The Court, in Saadi, noted that in addition to the principle that there must be no bad faith or deception on the part of the authorities, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 (Saadi, cited above, § 67).

57.  Where a person had been detained under sub-paragraph (f) of Article 5 § 1, the Court reiterated that the Grand Chamber in Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996-V, interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained "with a view to deportation", that is, as long as "action [was] being taken with a view to deportation", there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. The principle of proportionality applied to detention under Article 5 § 1 (f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held that "any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress" (Saadi, cited above, § 72).

58.  The Court considered that the principle that detention should not be arbitrary must apply to detention under the first limb of Article 5 § 1 (f) in the same manner as it applies to detention under the second limb. Since States enjoy the right to control equally an alien's entry into and residence in their country, it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country (Saadi, cited above, § 73).

59.  To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must thus be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74, and A. andOthers v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009).

(b)   Application of those principles to the present case

(i)     Whether the applicant's detention fell within the scope of Article 5 § 1 (f) and complied with domestic law

60.  The applicant disputed that his immigration detention had fallen within the scope of the first limb of Article 5 § 1 (f) of the Convention. In this connection he asserted, relying on an a contrario reading of the CJEU judgment in N. (cited above), that detention with a view to preventing unauthorised entry could not be based on section 59b of the Aliens Act 2000. He also argued that his case differed from Saadi (cited above) and contended that he had lawful residence in the Netherlands pending a decision on his asylum application.

61.  Turning to the applicant's reliance on the CJEU judgment in N., the Court emphasises that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention (Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014). The Court notes that the Regional Court of The Hague in the present case held that "the considerations of the CJEU do not take away from the fact that the treaty provisions in the [Convention] have independent effect in the Dutch legal order and that the court can also directly review the contested decision against Article 5 [of the Convention]" (paragraph 12 above).

62.  The Court further notes that the Regional Court of The Hague, considering the general terms of the ruling by the CJEU in the case of N., denied that section 59b(1)(d) could not provide a sufficient legal basis for the applicant's detention (paragraphs 12-13 above). Given that the interpretation of domestic law provisions, including its conformity with EU law, falls primarily to the national authorities, notably the courts, the Court sees no reason to depart from the Regional Court's assessment. That being so, the Court finds that the detention of the applicant was compliant with domestic law in this respect.

63.  As regards to the applicant's argument that his detention fell outside the scope of the first limb of Article 5 § 1 (f) of the Convention because he had already entered the territory of the Netherlands where he had applied for asylum and where he had been lawfully present pending a decision on his asylum application, the Court notes and considers the following.

64.  It reiterates that the first limb of Article 5 § 1 (f) permits the detention of an asylum-seeker or other immigrant until the State has granted that person authorisation to enter and recalls that the Grand Chamber in Saadi agreed with the Chamber that until a State has "authorised" entry to the country, any entry is "unauthorised" and the detention of a person who wishes to effect entry and who needs but does not yet have authorisation to do so can be, without any distortion of language, to "prevent his effecting an unauthorised entry" (see paragraph 53 above). In this approach, advanced by the Court, it is de jure entry, not de facto entry, which is relevant. It is thus possible that while an asylum-seeker or other immigrant is undeniably, physically, on the territory of a State, his or her legal entry has not been authorised by that State, in which case he or she may be detained under the first limb of Article 5 § 1 (f). The scope of this provision is not, as the applicant contended, strictly limited to border proceedings. The Court further reiterates that the point at which the first limb of Article 5 § 1 (f) ceases to apply depends largely on national law (see Suso Musa, cited above, § 97). It is primarily for the national authorities to interpret the applicable domestic law provisions, if necessary, in conformity with EU law (see K.I. v. France, no. 5560/19, § 123, 15 April 2021). This applies equally to interpretations that concern the transposition, in domestic law, of EU law (see paragraph 61 above).

65.  Turning to the facts of the present case, the Court notes that whilst, as the applicant submitted, his case factually differed from Saadi in the number of days that he had been at large on the territory prior to his placement in immigration detention and in the conditions that applied (see paragraph 44 above), his case and that of the applicant in Saadi are similar in the sense that at the time that their detention was ordered, no decision had been taken on their asylum application. The Court further notes that the "lawful residence", to which the applicant referred (see paragraph 44 above), was based on section 8(f) of the Aliens Act 2000. Under this provision an alien has lawful residence in the Netherlands pending a decision on his or her application for an asylum-based residence permit in circumstances where the law or a judicial decision proscribe the alien's expulsion before a decision on the application has been given (see paragraph 23 above).

66.  The Government submitted that section 8(f) of the Aliens Act 2000 is the implementation of Article 9(1) of the Asylum Procedures Directive which proscribes to expel an asylum-seeker pending the outcome of an asylum application and asserted that that provision could not be interpreted as providing an authorised entry, permission to stay or recognition of the applicant's residence rights (see paragraph 47 above).

67.  The Court notes that the Explanatory Memorandum to the bill transposing EU law into domestic law makes clear that section 8(f) of the Aliens Act 2000 incorporates the obligation arising from the first paragraph of Article 9 of the Asylum Procedures Directive (see paragraph 30 above). Article 9(1) stipulates that the right to remain on the territory of a State pending the outcome of an asylum application, cannot be equated to an entitlement to a residence permit (see paragraph 32 above). The Court also takes note of the Regional Court's finding that the applicant's situation had not been one of "authorised entry" since he had not entered the Netherlands in a lawful way and was still awaiting the outcome of his asylum application (see paragraph 12 above). While the term "lawful residence" in section 8(f) of the Aliens Act 2000 may have caused some confusion with the applicant, it clearly follows from the context that that provision - which must be read in conjunction with section 3(1) of the Aliens Decree 2000 (see paragraph 27 above) - provides, in accordance with international standards, that an asylum-seeker shall not be expelled pending the assessment of his or her application and does not provide for any formal authorisation procedure in respect of rights of entry or residence. Lawful detention of an asylum-seeker who lacks such a formal authorisation to enter is, as explained above, permitted under the first limb of Article 5 § 1 (f).

68.  The Court therefore accepts that the detention of the applicant had a clear legal basis and fell within the scope of the first limb of Article 5 § 1 (f) of the Convention.

69.  The applicant was placed in immigration detention in accordance with substantive and procedural rules of national law. Noting that the immigration detention order referred to section 59b of the Aliens Act 2000 as the legal basis for his detention and that the Deputy Minister also explicitly stated that the prospect of expulsion was not a required condition for immigration detention under that provision, the Court finds that it was sufficiently clear to the applicant that his detention was aimed at preventing his effecting an unauthorised entry. It remains to be determined whether the detention was arbitrary (see paragraphs 55-59 above).

(ii)   Whether the applicant's detention was arbitrary

70.  The Court does not discern any indication in the case file, nor did the applicant so argue, that the place and conditions of the applicant's detention were inappropriate, that the length of his detention was unreasonable or that the authorities did not carry out his detention in good faith. The Court is thus required to focus its examination of the alleged arbitrariness of the applicant's detention on the question whether the order to detain the applicant "genuinely conformed with the restrictions permitted by the relevant sub-paragraph of Article 5 § 1" (see Saadi, cited above, § 74), in other words: whether there existed a sufficiently close connection between the immigration detention and the purpose of preventing his unauthorised entry.

71.  The Court recalls that the Regional Court of The Hague found that the applicant's detention was solely based on section 59b(1)(d) of the Aliens Act 2000 which it found provided in itself a sufficient legal basis for the applicant's detention (see paragraph 13 above). Section 59b(1)(d) of the Aliens Act 2000 which is a transposition of Article 8 (3) e of the Reception Conditions Directive (see paragraph 31 above), provides for detention in case of a threat to public order or national security.

72.  Although Article 8 (3) e of the Reception Conditions Directive permits, from an EU-law standpoint, detention when national security or protection of public order so requires, this has no bearing on the fact that Article 5 § 1 (f) of the Convention only allows for immigration detention to prevent unauthorised entry or to effect deportation. The Court has previously been called upon to examine the justification of immigration detention on public order grounds linked to the aim of deportation under the second limb only. In those cases it has held that detention which was justified under public order grounds while no removal proceedings were actively ongoing, was arbitrary (see Al Husin v. Bosnia and Herzegovina (no. 2), no. 10112/16, §§ 104-07, 25 June 2019, and by contrast N.M. v. Belgium, no. 43966/19, §§ 119-20, 18 April 2023). Further, the Court notes that while the UNHCR Guidelines on the detention of asylum-seekers, which were revised in 2012, mention public order, it is clear from Guideline 4.1.1 that protection of public order in the sense of these Guidelines is not related to a previous criminal conviction, as in the present case (see paragraph 40 above).

73.  The Court can understand the legitimate concerns which exist when an asylum applicant is released from detention shortly after having been convicted on terrorism related charges. However, this cannot lead to "preventive detention", nor can it absolve a State of its obligations under the Convention. It is moreover undisputed that during the applicant's (pre-trial) detention between 30 November 2015 and 23 September 2016, no steps were taken to assess his asylum application, such as conducting interviews to enable a determination of his claim, including his possible exclusion from international protection on the basis of Article 1F of the Refugee Convention (see paragraphs 29 and 38 above). On the contrary, two such interviews took place only when the applicant was held in immigration detention between 23 September 2016 and 13 December 2016 (see paragraphs 10 and 16 above). Consequently, this immigration detention appears disproportionate, even unnecessary, as many of the steps required to assess the asylum application could have been taken during the criminal law detention without the need to subsequently keep the applicant in immigration detention.

74.  While the passage of time is not decisive for assessing whether detention falls under the scope of the first limb (see paragraph 64 above), it remains relevant for the determination of whether a sufficiently close connection existed between the immigration detention and the prevention of unauthorised entry. When more time has lapsed and the applicant is in the meantime physically present on the territory of a State, adherence to the requirement of close connection between immigration detention and prevention of unauthorised entry will need to be strictly scrutinised. Notwithstanding the fact that the applicable provisions under domestic law include a guarantee that the lawfulness of the detention order shall be reviewed by a court no later than twenty-eight days after its notification (see paragraph 25 above) and contain a clear time limit for the duration of detention on public order grounds (see paragraph 24 above), the Court cannot overlook that public order, as it was applied in the present case, could be relied on to justify excessive immigration detention after criminal law detention, whilst the asylum application remains undecided. This would entail an expansion of the Convention grounds to justify the deprivation of liberty of asylum-seekers and other immigrants, which is not provided for by the Convention.

75.  Noting that the applicant had not been detained when he first entered the country and applied for asylum and given the fact that the applicant's immigration detention was not deemed necessary to enable the examination of his asylum claim, whilst no steps were taken to further that examination during the preceding ten months of (pre-trial) criminal law detention, the Court does not find that there existed a sufficiently close connection between his immigration detention and the aim of preventing his unauthorised entry. The applicant's immigration detention was thus arbitrary, and therefore incompatible with the first limb of Article 5 § 1 (f).

(c)   Conclusion

76.  The foregoing considerations are sufficient to enable the Court to conclude that the decision to order the applicant's immigration detention was not lawful. There has accordingly been a violation of Article 5 § 1 of the Convention.

2. application of article 41 of the convention

77.  Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

1. Damage

78.  In his claim for just satisfaction, the applicant noted that he was already compensated non-pecuniary damages for his unlawful detention from 19 November until 12 December 2016. He thus requested compensation for the period of his detention between 23 September 2016 and 18 November 2016, of at least 80 euros (EUR) per day, which is the standard compensation amount awarded by Dutch courts. This would amount to EUR 4,560.

79.  The Government did not offer any observations regarding just satisfaction.

80.  The Court considers that the applicant must have sustained non-pecuniary damage as a result of the violation of Articles 5 § 1 (f). Making its assessment on an equitable basis, as required by Article 41, and taking note of the domestic awards already made, the Court finds it appropriate to award the applicant the amount he has requested.

2. Costs and expenses

81.  No application was made for compensation of costs and expenses.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;

2. Holds, by six votes to one, that there has been a violation of Article 5 § 1 of the Convention;
3. Holds, by six votes to one,

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,560 (four thousand five hundred and sixty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 23 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Milan Blaško Pere Pastor Vilanova
 Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  Concurring opinion of Judge Serghides;

(b)  Concurring opinion of Judge Zünd;

(c)  Partly dissenting opinion of Judge Schukking.

P.P.V.
M.B.

CONCURRING OPINION OF JUDGE SERGHIDES

1.  The applicant's complaint is that he was placed in immigration detention in Rotterdam, pending the assessment of his asylum application, on the ground that he posed a threat to public order, in breach of Article 5 § 1 (f) of the Convention.

2.  The purpose of this concurring opinion is to support the judgment, with which I agree, by adding one important argument. I do so by employing the fundamental Convention principle of the effective protection of human rights (the principle of effectiveness) regarding the interpretation and application of Article 5 § 1 (f) of the Convention. This provision reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedural prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

3.  The principle of effectiveness requires that limitations or restrictions to human rights must be interpreted narrowly and restrictively, the relevance of which in the present case I will explain in the next paragraph. As the Grand Chamber of the Court reiterated in Khlaifia and Others v. Italy ([GC], no. 16483/12, § 88, 15 December 2016), Article 5 of the Convention enshrines a fundamental human right, namely, the protection of the individual against arbitrary interference by the State with his or her right to liberty. As it went on to state, "sub-paragraphs (a)-(f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds". Citing also other case-law, it added: "only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty".

4.  On the basis of the above, it is respectfully submitted that the domestic authorities, by holding the applicant in immigration detention on the ground that he posed a threat to public order, did not, in fact, interpret and apply Article 5 § 1 (f) narrowly and restrictively, as they should have done in accordance with the principle of effectiveness. On the contrary, by their action, they broadened the scope of this provision so as to apply it where there existed no sufficiently close connection between his immigration detention and the stated aim of preventing his unauthorised entry based on an alleged threat to public order. As the judgment rightly concludes, at paragraph 75, the applicant's detention was thus arbitrary and, therefore, was incompatible with the first limb of Article 5 § 1 (f), entailing a violation of that provision.

5.  In cases such as the present, where the rights of vulnerable people are at stake, there is a need for the domestic courts and the Court to expressly refer and pay full regard, aside from the pertinent provisions of Article 5 of the Convention, to the principle of effectiveness and also to respect for human dignity, the latter being in my view an integral aspect or component of the principle of effectiveness, both as a norm of international law and a method of interpretation (see also on this, paragraphs 8-9 of my partly concurring, partly dissenting opinion in A.M.A. v. the Netherlands, no. 23048/19, 24 October 2023).

6.  In my humble submission, it is crucial, therefore, to bear in mind that safeguarding the rights of aliens and refugees, like the applicant in the present case, is not solely a matter of fulfilling international legal obligations; it is a profound moral imperative that resonates deeply with our shared humanity.

CONCURRING OPINION OF JUDGE ZÜND

1.  I agree with the finding of a violation of Article 5 § 1 (f) of the Convention. However, it is useful in my view to briefly summarise the two reasons for this finding.

2.  Detention under the first limb of Article 5 § 1 (f) must be closely connected to the purpose of preventing unauthorised entry to the country, as highlighted in paragraph 59 of the judgment.

3.  The authorities detained the applicant on the ground that he posed a threat to public order.

4.  Detention may be connected to the scope of preventing illegal entry if it allows the authorities to quickly clarify entry requirements or to establish the identity of an asylum-seeker or other immigrant. However, security concerns as such are not linked to the scope of preventing illegal entry and are therefore not sufficient for detention under the first limb of Article 5 § 1 (f). That is the first reason for finding a violation.

5.  Before his immigration detention was ordered, the applicant was held in pre-trial detention for nearly ten months. The authorities would have had every possibility to take the necessary steps for the purposes of the decision as to whether his entry should be allowed or rejected. But they had not done so. Therefore, it cannot be argued that immigration detention was necessary and that there was a close connection with the aim of preventing illegal entry. That is the second reason, distinct from the first one.

PARTLY DISSENTING OPINION OF JUDGE SCHUKKING

1.  I agree with the majority's conclusion that the detention of the applicant had a clear legal basis and fell within the scope of the first limb of Article 5 § 1 (f) of the Convention (see paragraph 68 of the judgment). I fully support the reasoning of the judgment leading to that conclusion (see paragraphs 61-67). It reflects the binary distinction envisioned by the Court in Saadi v. the United Kingdom [GC] (no. 13229/03, ECHR 2008) and subsequent case-law: the first limb applies up to the moment that express authorisation for entry/residence has been given, even if an applicant is already de facto in the territory of a State; the second limb applies where an (asylum) application is rejected and attempts are being made to remove an applicant. I am also in agreement with the majority's view that it was sufficiently clear to the applicant that his detention was aimed at preventing his effecting an unauthorised entry (see paragraph 69 of the judgment).

2.  I respectfully disagree, however, with the majority's conclusion that the order to place the applicant in immigration detention was arbitrary and therefore incompatible with Article 5 § 1 (f). In my view the majority's reasoning leading to that conclusion is incoherent and unclear. Consequently, it fails to provide adequate guidance to the national authorities, including the domestic courts, which in their daily practice are confronted with questions relating to the lawfulness of such orders. I therefore hope that the Court will have an opportunity soon to further clarify its reasoning in this regard. I further note that the domestic law provision on the basis of which the applicant's immigration detention was ordered is the direct transposition of Article 8 § 3 (e) of Directive 2013/33/EU of the European Parliament and the Council ("the Reception Conditions Directive"). The impact of the judgment in the present case thus transcends the Dutch legal context. Below I will explain why I have dissented from the majority's reasoning and conclusion. I will begin with some general considerations on the right to liberty, the notion of "arbitrariness", and immigration detention on the grounds of "protection of national security or public order".

1. The right to liberty and the notion of "arbitrariness" within the meaning of Article 5 § 1

3.  Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty save in the situations mentioned in paragraph one of Article 5 and in accordance with a procedure prescribed by law. In proclaiming the "right to liberty", Article 5 contemplates the physical liberty of the person; its aim is to ensure that no one should be deprived of that liberty in an arbitrary fashion. The Court has not formulated a universal definition as to what types of conduct on the part of the authorities might constitute "arbitrariness" within the meaning of Article 5 § 1. The Court has confined its case-law to elaborating certain key principles (see Saadi, cited above, § 68; see also James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, §§ 191-195, 18 September 2012).

4.  The Court has indicated that arbitrariness may arise where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. Thus, by way of example, detention has been branded arbitrary when the real reason for it was different from the one formally presented and was disguised behind formal procedures of deprivation of liberty (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, §§ 95-101, 22 May 2014). The Court has also indicated that the prohibition of arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 (see Saadi, cited above, § 69). For example, in the case of the detention of a person of unsound mind pursuant to Article 5 § 1 (e), the Court has held that there must be medical evidence establishing that the person's mental state is such as to justify his or her compulsory hospitalisation (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33). Third, for a deprivation of liberty not to be arbitrary there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. For example, the Court has considered that placing a family with young children for a particularly long period in a closed asylum reception centre, which was manifestly unsuitable for children, was not in compliance with Article 5 § 1 (f) (see Kanagaratnam and Others v. Belgium, no. 15297/09, § 94, 13 December 2011). Lastly, the requirement that detention is not arbitrary also implies the need for a relationship of proportionality between the ground of detention relied upon and the detention in question. However, the scope of the proportionality test to be applied in a given case varies depending on the type of detention involved. In the context of detention under Article 5 § 1 (f), which permits the State to control the liberty of aliens in an immigration context, the Court has indicated that as long as a person is being detained with a view to deportation or for the purpose of preventing an unauthorised entry, there is no requirement that the detention be "reasonably considered necessary" (for example to prevent the individual from committing an offence or fleeing). However, the length of the immigration detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, §§ 72-74). For example, in a case where a person was held more than two and a half years in immigration detention and his deportation was apparently blocked solely by the lack of travel documents allowing him to re-enter his country of origin, the Court noted that there was no indication that the authorities had pursued the matter vigorously or sought to negotiate with the Pakistani authorities with a view to expediting the delivery of the documents. It concluded that the grounds for the applicant's detention did not remain valid for the whole period of his detention due to the authorities' failure to conduct the proceedings with due diligence (see Raza v. Bulgaria, no. 31465/08, §§ 73-75, 11 February 2010).

2. The "protection of national security or public order" ground in EU and national law

5.  The first subparagraph of Article 8 § 3 of the Reception Conditions Directive lists exhaustively the various grounds, including the ground relating to the protection of national security or public order, which may justify recourse to detention of persons applying for international protection. Each of those grounds meets a specific need and is self-standing (see N., C-601/15 PPU, Grand Chamber judgment, EU:C:2016:84, paragraph 59). It follows from paragraph 63 of the N. judgment (ibid.) of the Court of Justice of the European Union (CJEU) that the ground for detention relating to protection of national security and public order, as listed in sub-paragraph (e) of this provision, is, inter alia, based on the Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers, of 16 April 2003.

6.  According to the case-law of the CJEU the notion of "public order" entails, in any event, that there must be, in addition to the disturbance of the social order which any infringement of the law involves, "a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" and represented by a person's individual conduct (ibid., 65, with further references). Protection of national security or public order contributes to the protection of the rights and freedoms of others (ibid., § 53).

7.  Article 8 § 3 of the Reception Conditions Directive stipulates that the grounds for detention shall be laid down in national law. Under Dutch law, this provision is transposed in section 59b(1) sub-paragraph (d) of the Aliens Act 2000. Case-law of domestic courts on section 59b(1)(d) reflects the notion of "public order" as established by the CJEU (see, for example, Administrative Jurisdiction Division of the Council of State, judgment of 30 December 2015, ECLI:NL:RVS:2015:4075, and judgment of 13 May 2019, ECLI:NL:RVS:2019:1528). In the latter judgment, the Administrative Jurisdiction Division also confirmed, with reference to N. (cited above), that each of the grounds listed is self-standing and has its own requirement and that these requirements are further specified in Article 5.1c of the Aliens Decree 2000. Section 5.1c(4) of the Aliens Decree provides that the ground for detention referred to in section 59b(1)(d) of the Aliens Act applies in any case if there is an application procedure in which Article 1F of the Refugee Convention is likely to be applied.

3. The present case

8.  It follows from paragraph 70 of the judgment that in the present case no issue arose in relation to the following key principles relevant to the "arbitrariness test" under Article 5 § 1 of the Convention: "good faith", place and condition of detention, and length of the applicant's detention. The Court therefore focussed its examination on the question whether there existed a sufficient close connection between the applicant's immigration detention and the purpose of preventing his unauthorised entry. In examining that question, it is important to recall the relevant facts.

1. Relevant facts

9.  On 29 August 2016 the applicant was convicted by the first-instance court of participating in a terrorist organisation between March 2013 and October 2015. The court based that conviction on, inter alia, a tweet by the applicant from 2013 in which he had stated that he belonged to al-Qaeda, WhatsApp conversations from 2015 and numerous photos and videos found on his mobile phone. Both the applicant and the public prosecutor lodged an appeal (see paragraph 8 of the judgment).

10.  On 23 September 2016, less than four weeks later, the applicant's immigration detention was ordered (at that date his 10-month prison sentence ended due to the time he had spent in pre-trial detention). The Deputy Minister of Security and Justice considered that the applicant's immigration detention was necessary with a view to obtaining information for the assessment of his asylum application and the risk that he might abscond, and because he represented a threat to national security or public order in view of his criminal conviction. In the latter respect, the order provided that the applicant had been convicted of a crime that was perceived as very serious, namely participating in a criminal organisation with intent to commit acts of terrorism, that this concerned national security and that the applicant was therefore perceived to pose a genuine, present and sufficiently serious threat to a fundamental interest of society, for which reason a less restrictive measure was not appropriate. It was further noted that the mere fact that the applicant had been detained as from 30 November 2015 did not mean that the threat he posed had ceased to exist. The detention order was based on section 59b(1) sub-paragraphs (b) and (d) of the Aliens Act 2000 (see paragraphs 10-11 of the judgment).

11.  The domestic courts dismissed the applicant's appeal and further appeal against the decision to place him in immigration detention. The Regional Court held that the Deputy Minister had been justified in regarding the applicant as a threat to public order within the meaning of section 59b(1)(d) of the Aliens Act 2000 and in not applying a less restrictive measure. Addressing the applicant's argument that the Deputy Minister had wrongfully failed to take into account the views expressed by the public prosecutor at the trial hearing, the Regional Court held that it was for the criminal court to have the final say on the applicant's criminal liability and that his conviction was therefore the legal point of departure for the Deputy Minister when deciding on the necessity of the applicant's immigration detention. It further held that the Deputy Minister had failed to provide sufficient reasons as to the risk that the applicant might abscond and therefore found that the detention order could not be based on section 59b(1)(b). However, it found that section 59b(1)(d) in itself had provided a sufficient legal basis for the applicant's detention (see paragraph 13 of the judgment).

2. The Court's reasoning in paragraphs 72-75 of the judgment

12.  In paragraph 72 of the judgment, the Court notes: "Although Article 8 (3) e of the Reception Conditions Directive permits, from an EU-law standpoint, detention when national security or protection of public order so requires, this has no bearing on the fact that Article 5 § 1 (f) of the Convention only allows for immigration detention to prevent unauthorised entry or to effect deportation". What does this sentence mean? Should it be understood to say that immigration detention on "national security or protection of public order grounds" cannot be regarded as sufficiently connected to the purpose mentioned in the first limb of Article 5 § 1 (f)? The second sentence of this paragraph in the judgment does not clarify the first one. It refers to case-law of the Court under the second limb of Article 5 § 1 (f) in which the length of immigration detention - and the related question of whether the authorities acted with "due diligence" - was at issue, but does not explain what the relevance of that case-law is in relation to the key principle on which the Court is focussing its examination in the present case. Notably, no issue arose as regards the length of the applicant's immigration detention (see paragraph 70 of the judgment). The applicant's complaint concerned the alleged unlawfulness of the Deputy Minister's decision to place him in immigration detention (see paragraph 41 of the judgment). The third sentence of paragraph 72, which refers to the revised UNHCR Guidelines on the detention of asylum-seekers, unfortunately makes it even more confusing. Should this reference be understood in such a manner that the Court only accepts the existence of a sufficiently close connection between immigration detention on the ground of protection of public order and the prevention of unauthorised entry when one of the "public order" situations as described in those guidelines, is at stake? If so, what would be the justification for accepting a link in those situations and not accepting a link in the situation where a person poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (the notion of "public order" used in EU and national law, see paragraphs 6 and 7 above)?

13.  In paragraph 73 of the judgment the Court concludes that the applicant's immigration detention "appears disproportionate". It is not explained how the proportionality test relates to the key principle of the "sufficient close connection". The Court's established case-law (see paragraph 4 above) indicates that the scope of the proportionality test to be applied in the context of Article 5 § 1 (f) is confined to an assessment of whether the length of the immigration detention did not exceed that reasonably required for the purpose pursued, and - I repeat - the length of the applicant's immigration detention was not an issue in the present case.

14.  In paragraph 74 of the judgment the Court introduces a hypothetical situation in which immigration detention after criminal-law detention may last for an excessively long time because an asylum application remains undecided. The Court does not examine whether that situation had actually occurred in the present case (indeed it had not, and nor could it occur under the domestic provisions in place; see paragraphs 24 and 25 of the judgment). This abstract assessment deviates from the methodology traditionally used by the Court in which it examines in concreto whether the application of the general principles to the specific facts of the case results in a breach of the Convention. The abstract kind of finding at the end of this paragraph seems therefore to be unconnected with the situation in the case at hand.

15.  In its concluding paragraph 75, the Court finds that in the present case there did not exist a sufficient close connection between the applicant's immigration detention and the aim of preventing his unauthorised entry because (1) he had not been detained when he first entered the country and applied for asylum, (2) his detention was not deemed necessary to enable the examination of his asylum claim, and (3) no steps had been taken to examine his asylum application during his preceding 10 months of criminal-law detention.As regards point 1, it is noteworthy that the authorities only became aware of the applicant's possible involvement in terrorist groups in Syria a few weeks after he had applied for asylum (see paragraph 6 of the judgment). As regards point 3, it must be noted that this reads as a "due diligence" consideration which might be of relevance in the context of assessing the reasonableness of the length of immigration detention but, as noted above, is difficult to relate to the key factor at issue here. As for point 2, I will address it below.

3. My opinion

16.  In determining whether in the present case the conduct on the part of the authorities constituted "arbitrariness" within the meaning of Article 5 § 1, the Court was required to focus its examination on one of the key principles that it has elaborated in its case-law, namely on the question whether the Deputy Minister's decision of 23 September 2016 to deprive the applicant of his liberty by ordering his placement in immigration detention on the ground that he represented a threat to national security or public order within the meaning of Article 8 § 3 (e) of the Reception Conditions Directive, was closely connected to the aim of preventing his unauthorised entry to the country.

17.  In my opinion the answer to that question is "yes". Firstly, if the applicant had not been convicted on 29 August 2016 of participating in a terrorist organisation, there would probably have been no order to place him in immigration detention shortly afterwards. The detention order indicated that the applicant had been convicted of a very serious crime which also concerned national security. The order not only referred to the conviction but also indicated why he was perceived to pose a genuine, present and sufficiently serious threat to a fundamental interest of society. Secondly, section 59b(1)(d) applies in any case if there is an asylum application procedure in which Article 1F of the Refugee Convention is likely to be applied (see paragraph 29 of the judgment and case-law of the domestic courts referred to above). The fact that the applicant's conviction of participating in a terrorist organisation was partly related to the time when he had resided in his country of origin triggered, in the asylum context, the Article 1F issue. While the Regional Court held that the Deputy Minister had failed to provide sufficient reasons as to the risk that the applicant would abscond and therefore lifted the 59b(1)(b) ground for his detention, it found that section 59b(1)(d) in itself provided a sufficient legal basis for the applicant's immigration detention (see paragraph 13 of the judgment). I doubt, therefore, that the Court is correct to observe that the applicant's immigration detention "was not deemed necessary to enable the examination of his asylum claim" (point 2 in the first sentence of paragraph 75 of the judgment).

18.  The purpose of placing the applicant in immigration detention was to protect the rights and freedoms of others and to examine his possible exclusion from international protection based on Article 1F of the Refugee Convention. There thus existed a close connection between the ground relied on for his immigration detention and the aim of preventing his unauthorised entry.

19.  Based on the foregoing considerations, I reach a different conclusion to that of the majority. In my view the decision to order the applicant's immigration detention did not disclose any appearance of arbitrariness, was lawful, and was therefore compatible with the first limb of Article 5 § 1 (f) of the Convention.

20.  Having said that, I would like to add the following. In retrospect, the terrorist threat posed by the applicant appears to have fortunately been a "storm in a teacup". However, at the time the decision to place him in immigration detention was taken, this was by no means clear. The Regional Court, when addressing the applicant's arguments that he posed no threat, was right to hold that it was for the criminal court to have a final say on the applicant's criminal liability and that his conviction by the first-instance court was therefore the legal point of departure for the Deputy Minister when deciding on the necessity of his immigration detention.

21.  Whether the authorities subsequently acted expeditiously in processing his asylum application and thus acted with the required "due diligence" is a different question. The answer to that question falls outside the scope of the present case. Nevertheless, it is in my view an interesting sub-question in that context whether prior criminal detention is a factor that must be taken into account in the proportionality test, i.e. when assessing the reasonableness of the length of the immigration detention of the person concerned. In my recollection, the Court has not yet addressed that question. The Court has, however, had the opportunity to address the question whether the fact that a person had previously spent long periods in immigration detention may be considered in that assessment. In J.N. v. the United Kingdom (no. 37289/12, § 105, 19 May 2016) the Court held that this fact would lead to a greater impetus on the authorities to act with "due diligence" in the period of immigration detention under consideration.

22.  We must not lose sight of the State's responsibility to secure national security and public order for the sake of safeguarding the rights and freedoms of the people residing on its territory. At the same time, the Contracting Parties have committed themselves to ensuring that no one shall be deprived of his or her liberty in an arbitrary fashion and the right to liberty requires strict scrutiny. In particular also as regards the length of detention.

23.  Lastly, I would like to mention that I endorse Judge Serghides' submission (in his concurring opinion appended to the present judgment) that safeguarding the rights of people who are actually in need of international protection, is not solely a matter of fulfilling international legal obligations but also a moral imperative that resonates deeply with our shared humanity.