The case of Ahmed v The United Kingdom concerns the applicant’s complaint to the ECtHR that the UK violated his rights under articles 5 and 34 of the ECHR.

As to the background of the case, Ahmed left Somalia for the Netherlands in 1992 when he was 15 years old. There he claimed asylum with his family and was granted a period of leave to remain. During this period he married and had a son. Ahmed’s family travelled to the UK in 1998, shortly followed by Ahmed in 1999. On arrival in the UK Ahmed claimed asylum, using a false name and immigration history. Asylum was refused, however he was granted exceptional leave to remain until 2004.

Ahmed received ten criminal convictions over the period from 16 November 2001 to 4 August 2005. In December 2007 he was convicted of a public order offence and of failing to surrender. He was sentenced to four and half months’ imprisonment.

In January 2008, Ahmed was served with a notice informing him the Secretary of State intended on making a deportation order against him as well as refusing his application for indefinite leave to remain. Ahmed was consequently detained under the immigration act.

Ahmed’s detention was reviewed monthly and review forms setting out the reasons for maintaining detention were provided to him. The forms stated that “Whilst this means that enforced removal is not possible, [the applicant] could reduce the length of time he spends in detention by withdrawing voluntarily”. The form for February 2010 notes that “Rule 39 ECHR is a barrier to removal but I note that FRS [Facilitated Return Scheme] is an option that should be explored to the full to expedite his removal from the UK”. Likewise, the form for July 2010 stated that “[t]he length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject”. Furthermore, the form from December 2010 indicated that the applicant “could minimise his time in detention by withdrawing [the application to the ECHR] and taking up FRS which is offered each month” and that he could “end his detention by volunteering to return (with or without FRS) at any time”.

Ahmed challenged the decision to deport him, which was dismissed. After his appeal rights were exhausted Ahmed made an application to the ECtHR and interim measures were granted under Article 39.

Ahmed’s numerous bail applications were refused on the basis that the Immigration Judges were not satisfied that he would answer to any conditions set. On 9 November 2009 the Immigration Judge further noted that although the Ahmed had been in detention for a lengthy period, “the most recent period of detention is on account of delays with his own application to the European Court of Human Rights”.

As to the legality of Ahmed’s detention, the ECtHR held that there had been no violation of Article 5 or 34 (judge Sicilianos partially dissenting). It ruled that Ahmed’s detention was not unreasonably prolonged by the authorities’ decisions to maintain his detention awaiting the outcome of this Court’s judgment in Sufi and Elmi, and the consequent lifting of the Rule 39 measure.

The Court also noted that aside from the litigation there were no other barriers to the applicant’s expulsion, as all other issues concerning his immigration status had been dealt with. Moreover, Ahmed had at all times the possibility to apply for judicial review of his situation. His detention was also regularly reviewed on a monthly basis. This is in contrast to cases where the Court has found a violation where applicants remained in detention following a Rule 39 measure (see for example L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, §§ 148-149, 15 October 2015).

The partly dissenting judgment of Judge Sicilianos disagreed that there had been not breach of Article 34. He held that the suggestion made to Ahmed that in order to reduce the length of his detention he could withdraw his application to the Court and accept to return to Somalia amounted to at least to an improper or indirect act of communication designed to dissuade or discourage him from pursuing a Convention complaint, or having a chilling effect on the exercise of the right of individual petition. This was even more so in that he was an immigrant held in custody with limited contact with his family of the outside world and thus particularly vulnerable.