The applicants were 11 foreign nationals who were detained in the United Kingdom under the Anti-terrorism, Crime and Security Act 2001 (ATCSA), which allowed the indefinite detention of non-nationals who could not be deported for fear of torture or ill-treatment in their home countries. The UK government had derogated from Article 5 of the ECHR, which guarantees the right to liberty and security, on the grounds of a public emergency threatening the life of the nation.
The applicants challenged their detention before the UK courts and the ECHR, claiming that it violated their rights under Articles 3, 5, 6, 8 and 14 of the ECHR. They argued that their detention was arbitrary, discriminatory, disproportionate and based on insufficient evidence.
The ECHR ruled unanimously that the applicants’ detention did not fall within the exception to the right to liberty set out in Article 5 (1) (f) as it was not possible to deport them. The court also found that there was a violation of Article 14 in conjunction with Article 5, as the detention scheme discriminated against non-nationals and was not justified by any objective and reasonable criteria. The court further held that there was a violation of Article 5 (4) in respect of four applicants who were not given sufficient information about the allegations against them to effectively challenge their detention. The court did not find a violation of Articles 3, 6 or 8.
The relevance of the case is that it established important principles and standards for the protection of human rights in the context of counter-terrorism measures. The case affirmed that the right to liberty is a fundamental right that cannot be derogated from except in very exceptional circumstances and subject to strict scrutiny. The case also emphasized that any derogation from the ECHR must be proportionate, necessary and non-discriminatory. The case also clarified the procedural safeguards that are required for a fair hearing under Article 5 (4), especially when dealing with sensitive national security information.
¹: A. and Others v. the United Kingdom [GC] – 3455/05 – Council of Europe
(1) PRINCIPLES AND PRACTICES – SSRN. https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3789181_code2983901.pdf?abstractid=3789181&mirid=1.
(2) A. and Others v. the United Kingdom [GC] – 3455/05 – Council of Europe. https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=002-1647&filename=002-1647.pdf&TID=ihgdqbxnfi.
(3) A and Others v The United Kingdom: ECHR 19 Feb 2009. https://swarb.co.uk/a-and-others-v-the-united-kingdom-echr-19-feb-2009/.
(4) A. and Others v. the United Kingdom – Wikipedia. https://en.wikipedia.org/wiki/A._and_Others_v._the_United_Kingdom.
(5) CASE OF A. AND OTHERS v. THE UNITED KINGDOM – Council of Europe. https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-91403&filename=001-91403.pdf&TID=tethzzkusm.
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