## Facts

- Following the 11 September 2001 attacks, the United Kingdom enacted Part 4 of the Anti-terrorism, Crime and Security Act 2001, permitting indefinite detention without criminal trial of non-UK nationals suspected of international terrorism.
- The detention power was used where removal was not feasible because deportation would expose the person to a real risk of treatment prohibited by Article 3 of the European Convention on Human Rights.
- The United Kingdom filed a derogation under Article 15 of the Convention, asserting a public emergency threatening the life of the nation, but structured the detention scheme to apply only to non-nationals.
- Eleven non-UK nationals were detained under the scheme, largely in high-security conditions, and their cases were reviewed domestically through proceedings involving closed material and special advocates.
- Domestic litigation culminated in a declaration that the detention scheme was incompatible with protected rights because it was disproportionate and discriminatory; the applicants then brought their claims to the European Court of Human Rights.

## Issues

1. Whether the applicants’ open-ended detention, presented as immigration detention, fell within a permitted ground for deprivation of liberty, and if not, whether the Article 15 derogation justified it.
2. Whether the review procedure provided a sufficiently fair and effective opportunity to challenge detention, given reliance on secret evidence and limitations on communication with special advocates.
3. Whether those found to have been unlawfully detained had an enforceable right to compensation.
4. Whether limiting the detention regime to non-nationals constituted unjustified discrimination in relation to the right to liberty.
5. How Article 3 constraints on removal and the treatment of torture-tainted material affected the legality of the regime.

## Decision

- The Court accepted that a public emergency existed for Article 15 purposes.
- The Court held the derogating detention measures were not strictly required, primarily because the scheme targeted only non-nationals despite the threat stemming from both nationals and non-nationals.
- The Court found a violation of Article 5(1) as to nine applicants detained under the statutory scheme.
- The Court found a violation of Article 5(4) as to four applicants because the extent of non-disclosure prevented them from knowing the essence of the allegations and effectively contesting detention.
- The Court found a violation of Article 5(5) for applicants who lacked an enforceable right to compensation following the Article 5 violations.
- The Court reaffirmed the absolute ban on removal exposing a person to a real risk of ill-treatment and stated that torture-tainted evidence is incompatible with Convention standards, while not finding a separate completed removal violation on the facts.

## Legal Principles

- Detention purportedly “with a view to deportation” is not justified where removal is not realistically being pursued or is not feasible within a foreseeable time; open-ended immigration detention on that basis breaches the right to liberty.
- Under Article 15, even during a public emergency, measures restricting liberty must be strictly required; nationality-based detention that lacks objective and reasonable justification fails that test.
- Effective judicial review of detention requires sufficient disclosure to permit the detainee to understand the essence of the case and give meaningful instructions; extensive reliance on closed material can render review ineffective.
- Where unlawful detention is established under the Convention, an enforceable right to compensation is required.
- Article 3’s protection against torture and inhuman or degrading treatment is absolute and bars removal to a real-risk destination; reliance on evidence obtained by torture is incompatible with that absolute protection.

## Conclusion

The Court held that the United Kingdom’s post-9/11 indefinite detention regime for non-nationals could not be justified as immigration detention or under an emergency derogation because it was not strictly necessary and was discriminatory; it also found failures in the fairness of review procedures and in providing compensation for unlawful detention, while reaffirming the absolute nature of protection against torture and ill-treatment.


A. & Others v. United Kingdom, App. No. 3455/05 (Eur. Ct. H.R. 2009)