Detention of an asylum seeker for reasons of public security: no violation of the right to liberty in the presence of a proper individualised necessity test.
Article 5 §1 ECHR – right to liberty – detention of asylum seekers – public security – individualised vulnerability assessment
In K.G. v. Belgium the ECtHR dealt with a case concerning an asylum-seeker placed and kept in detention for security reasons for approximately 13 months, while his asylum application was pending. The Court found no violation of the applicant’s right to liberty as protection of public safety had justified his detention, moreover the applicant’s state of health had been properly assessed and taken into account with regard to his detention conditions. Lastly, in light of all the relevant circumstances of the case, the Court did not consider the duration of the applicant’s detention as excessive and unreasonable.
Francesco Luigi Gatta
A. Facts and Ruling
1. Principal facts
The case concerns K.G., a Sri Lankan national who arrived in Belgium in 2009. He applied for asylum alleging the risk to be subjected to torture in his home country because of his belonging to the Tamil minority. His request was rejected. He then re-applied for asylum for a total of eight consecutive applications, all of which had a negative outcome.
During his stay in Belgium K.G. was charged with several criminal offences (violent conduct, shop-lifting, sexual assault and threat against minors) for which he was placed in detention, while his asylum claim was pending. K.G. was also notified with several orders to leave Belgium, which he never complied with.
In 2014 a decision was issued by the Aliens Office (Office des étrangers) banning K.G. from entering Belgium for a period of 6 years on the ground that he was considered to be a serious threat to public order, due to his previous conviction, the criminal offences committed and the persistent and systematic non-compliance with the orders to leave the national territory.
Overall, on the basis of four consecutive decisions, K.G. was kept in detention for security reason for a period of approximately 13 months. During his detention, he underwent several medical and psychiatric examinations which highlighted a situation of mental disorder. Despite the various legal actions undertaken – including a request to the ECtHR for an interim measure under Rule 39 of the Rules of Court – K.G. remained in detention and, in March 2016, he was finally repatriated to Sri Lanka.
2. Arguments of the parties and decision of the Court
Relying on Article 5 §1 (right to liberty and security) of the European Convention on Human Rights, K.G. complained about the lawfulness of his detention under the following profiles.
- Clear legal basis
According to the applicant, his deprivation of liberty did not comply with the requirement of being “in accordance with a procedure prescribed by law” established by Article 5 §1 of the Convention. K.G. had been placed “at the Government’s disposal” (“mise à disposition du Governement”) on the basis of a ministerial order which, according to the Aliens Act (“Lois sur les étrangers”), allows the Minister, under serious and exceptional circumstances concerning public order and national security, to place an alien “temporarily” at the Government’s disposal while the asylum proceedings are pending. Such procedure, however, does not provide for the maximum duration of the detention. In the specific case at hand, moreover, the national authorities had not taken into consideration alternatives to detention.
For the Government such a form of detention is legitimate and can be regarded as a valid exception falling within the scope of Article 5 §1, letter f) of the Convention, considering the applicant’s situation (an alien unlawfully residing on the national territory) comparable to the one provided for in the first part of the mentioned provision (an alien unlawfully trying to enter into the country).
The Court notes that, in the K.G. case, public interest and security considerations played a decisive role and the exceptionally serious circumstances required for his placement “at the Government’s disposal” were met given the applicant’s criminal conduct. Therefore, the detention order had not been arbitrary nor unreasonable and had a clear legal basis.
- Pursuit of an aim authorised by Article 5 §1 of the Convention
The applicant claims that his detention in the form of being placed “at the Government’s disposal” fell outside the scope of application of Article 5 §1 (f) of the Convention, which enables States to restrict the right to liberty of non-nationals on the basis of two grounds: in order to prevent an unauthorised entry into the country and to execute a removal decision while the procedure is pending.
The Court notes that the fact that K.G. had been unlawfully residing in Belgium for 8 years, being moreover convicted and imprisoned for criminal offences, does not imply that his detention fell outside the scope of Article 5 §1 (f) of the Convention. In particular, as the detention measures were adopted in connection with the applicant’s deportation from Belgium, the case is to be considered as falling within the provisions of the second part of Article 5 §1 (f). In any case, concludes the Court, categorising a form of detention established by national law into one or other of the two cases of Article 5 §1 (f) is not that relevant in order to assess the lawfulness of the detention itself.
- Lawfulness of the applicant’s detention: duration, conditions and diligence of the domestic authorities
The applicant claims that his detention had an excessive duration and its conditions had been inadequate in the light of his specific state of health. The Government, on the contrary, argues that the detention measure was not excessive and that domestic authorities acted diligently, carefully examining all relevant points relating both to national security and to the applicant's health. With regard to this latter aspect, in particular, the applicant’s state of health had been duly taken into consideration, as he had received proper medical assistance during his detention.
Sharing the Government’s view, the Court unanimously holds that there had been no violation of the applicant’s right to liberty as protected by Article 5 §1 of the Convention.
In its judgment the Court recalls and reiterates its previously established principles concerning the detention of aliens for migration-control purposes with regard, in particular, to systematic and automatic detention of asylum seekers without a proper assessment of their individual position and needs (Thimothawes v. Belgium, 2017) and to the necessity for the national authorities to consider and possibly apply less coercive measures than detention (Yoh-Ekale Mwanje v. Belgium, 2011).
As to the individual assessment of the applicant’s situation, in the K.G. case the Court, after having conducted a necessity and proportionality test, excludes a violation of the right to liberty given that a specific vulnerability assessment of the applicant’s individual situation has been made by national authorities, the detention conditions have been adequate and its duration reasonable in light of the specific factual circumstances.
The Court goes cursory through this point, being satisfied with the Belgian authorities’ conduct in terms of individualised treatment of the applicant, who has been taken in good care of, especially in light of his state of mental health. Specifically, proper medical and psychological examinations had been conducted, assessing and periodically reviewing the applicant’s state of health, without pointing out any specific contraindication as to keeping K.G. in detention. Moreover, while detained, no deterioration of the applicant’s condition has been detected.
As to the need for the national authorities to consider the detention as a measure of last resort and to possibly apply less coercive measures, the Court essentially skips such passage by lending decisive weight to the public security reasons invoked by the Government. For the Strasbourg judges, Belgian authorities had properly taken into consideration all the relevant circumstances related to the applicant, coming to the legitimate conclusion that he represented a threat to the national security (criminal offences previously committed, risk of recidivism, state of mental health and psychological disturbance). The Court sees no reason to call such assessments into question. Therefore, the protection of public safety had justified the detention.
In synthesis, what seems to really matter for the Court is that national authorities had “individualised” the assessment of the applicant’s detention, conducting a specific necessity test with regard to it. K.G. had been considered dangerous and his state of health had been properly monitored: this is enough for the Court to consider 13 months of detention as a reasonable duration, without really going into further details and analyses on the point.
Such assessment, however, appears as somehow generic and cursory, as the Court does not really provide specific and detailed guidance as to the reasons on the basis of which the conduct held by national authorities may be considered satisfactory in terms of compliance with Article 5 of the Convention. In particular, the reference to public security reasons appears vague and tautological, almost as if the presence of a threat for the public safety would automatically exclude the arbitrariness of the detention.
C. Suggested readings
To read the case: ECtHR, judgment of 6 November 2018, K.G. v. Belgium, Appl. No. 52548/15
- ECHR, judgment of 4 April 2017, Thimothawes v. Belgium, Appl. No. 39061/11
- ECHR, judgement of 20 December 2011, Yoh-Ekale Mwanje v. Belgium, Appl. No. 10486/10
L. Leboeuf, « Rétention des demandeurs d’asile. De la subsidiarité et des imprécisions du contrôle strasbourgeois », Newsletter edem, mai 2017
R. Wissing, “Systematic detention of asylum seekers at the border: on the need for an individualised necessity test”, Strasbourg Observers, 9 June 2017
To cite this contribution: F.L. Gatta, “Detention of an asylum seeker for reasons of public security: no violation of the right to liberty in the presence of a proper individualised necessity test”, Cahiers de l’EDEM, December 2018.
 Former section 54(2), second sub-paragraph, Aliens Act.
Photo de Nicoleon — Travail personnel, CC BY-SA 4.0