Monday, 23 September 2013

S.M.M. v the United Kingdom - reference to 'gay rights'

The European Court of Human Rights have issued 'questions to the parties' in S.M.M. v the United Kingdom.

The complaint relates to the detention of a Zimbabwean national because he was illegally resident in the UK. The applicant claims that a period of his detention was unlawful because he was suffering from a mental health illness. The mental illness of the applicant was related to various physical abuse he had suffered in Zimbabwe from Zanu-PF supporters. One incidence of this abuse happened while the applicant was 'protesting about gay rights'.

Summary of the facts

S.M.M. is a Zimbabwean national who was born in Zimbabwe in 1982 and currently lives in Wembley, London.

S.M.M. arrived in the UK in May 2001 and was granted leave to stay for six months as a visitor. He overstayed, subsequently developed mental illness, and was convicted for a number of offences (driving related, and resisting or obstructing a police officer). 

In April 2005 he made an application for asylum that was refused.

In August 2007 he was subsequently convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment.
 
S.M.M made a second asylum application in March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station.
 
On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers. He was subsequently released on 15 September 2011 and has since been engaged in asylum appeal proceedings.
 
It is the period of detention between 2008 and 2011 that forms the substance of the complaint to the European Court of Human Rights.
 
Complaint
 
The applicant complains under Article 5 § 1 of the Convention that his detention from 28 November 2008 until 15 September 2011 was unlawful because the Secretary of State for the Home Department failed to apply the torture concession; he failed to apply the mental health concession; and failed to follow the Hardial Singh principles [full details of which are given in the Court's communication].
 
Questions to the parties
  1. Was the applicant detained throughout the period between 28 November 2008 and 11 September 2011 as “a person against whom action [was] being taken with a view to deportation” within the meaning of paragraph (f) of Article 5 § 1 of the Convention?
  2. Did the domestic legal regime of administrative detention applied to the applicant satisfy the requirements inherent in Article 5 § 1 as to the quality of the national law authorising such detention? In particular, did the lack of any time limits on administrative detention, taken alone or in conjunction with the absence of any automatic judicial oversight of such detention, violate the requirement of “lawful” detention under Article 5 § 1 in this sense?
 
 
 

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