EGMR

[...]

(b) Application of those principles to the present case

45. The Court observes at the outset that the applicant’s grievance only relates to the period subsequent to 7 p.m. on 25 June 2014. Consequently, it is not warranted to examine the Government’s arguments relating to the detention that took place prior to this time.

46. For the remaining period, that is, from 7 p.m. on 25 June until 22 August 2014, the Government submitted that the applicant’s asylum detention had been justified under the second limb of Article 5 § 1 (b) of the Convention.

47. At this juncture, the Court would add that Article 5 § 1 (f) may also provide justification, in some specific circumstances, for detentions of asylum-seekers (see Saadi, cited above, § 64). At the same time, it observes that where a State which has gone beyond its obligations in creating further rights or a more favourable position – a possibility open to it under Article 53 of the Convention – enacts legislation (of its own motion or pursuant to European Union law) explicitly authorising the entry or stay of immigrants pending an asylum application (see section 5(1) a) of the Asylum Act, quoted in paragraph 21 above), an ensuing detention for the purpose of preventing an unauthorised entry may raise an issue as to the lawfulness of the detention under Article 5 § 1 (f) (see Suso Musa, cited above, § 97).

48. The Court nevertheless considers that, in the light of the Government’s circumscribed argument put forward in the present case, this question need not be addressed, and its scrutiny can be limited to the issue of Article 5 § 1 (b) of the Convention.

49. The "obligation prescribed by law" referred to by the Government is the duties flowing from section 5(2) of the Asylum Act (see paragraph 21 above). However, the Court notes that this provision does not contain the requirement that an asylum-seeker must provide documentary evidence of his identity and nationality. Rather, the applicant had the obligation to collaborate with the asylum authority (that is, reveal the circumstances of his or her flight; communicate items of personal information about him or her; facilitate the clarification of his or her identity, and so on).

50. Moreover, section 5(3) of the same Act contains a provision concerning situations when the asylum-seeker is not in possession of official documents proving his identity (see paragraph 21 above). It can thus be deduced that the production of documents is not the only option for asylum-seekers to substantiate their identities and nationalities.

51. It appears from the circumstances of the case that the applicant made reasonable efforts to clarify his identity and nationality: there is no indication that he did not fully cooperate with the authorities; he also made several coherent statements about the reasons why he had fled his home country.

52. The Court would add that under section 31/A (2) and (3) of the Asylum Act (see paragraph 21 above) asylum detention may only be ordered on the basis of an individual assessment, and only if its purpose cannot be achieved through other measures securing availability. However, instead of these criteria being addressed, the applicant’s continuing asylum detention was in essence based on the reasons contained in the first detention order given by the asylum authority, that is, the fact that his identity and nationality had not been clarified and the risk that he might frustrate the asylum proceedings by absconding – although only scarce reasoning was adduced to show that he was actually a flight risk. Altogether, the Court cannot but observe that the applicant’s case was not assessed in a sufficiently individualised manner as required by the national law (see paragraph 12 above).

53. Lastly, the Court considers that, in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place. In the present case, the authorities failed to do so when they ordered the applicant’s detention without considering the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons. Again, the decisions of the authorities did not contain any adequate reflection on the individual circumstances of the applicant, member of a vulnerable group by virtue of belonging to a sexual minority in Iran (see, mutatis mutandis, Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010).

54. As a consequence, in the absence of a specific and concrete legal obligation which the applicant failed to satisfy, Article 5 § 1 (b) of the Convention cannot convincingly serve as a legal basis for his asylum detention. The foregoing considerations, demonstrating that the applicant’s detention verged on arbitrariness, enable the Court to conclude that there was a violation of Article 5 § 1 of the Convention in the period from 7 p.m. on 25 June to 22 August 2014 (see, mutatis mutandis, Blokhin v. Russia [GC], no. 47152/06, § 172, ECHR 2016). [...]