OPINION No. 28/1999 (UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND)
Communication addressed to the Government on 11 June 1999
Concerning William Agyegyam
The United Kingdom is a party to the International Covenant on Civil and
Political
Rights
1. The Working Group on Arbitrary Detention was established by resolution
1991/42 of the
Commission on Human Rights. The mandate of the Working Group was clarified
and extended
by resolution 1997/50. Acting in accordance with its methods of work, the
Working Group
forwarded to the Government the above-mentioned communication.
2. The Working Group conveys its appreciation to the Government for having
forwarded
the requisite information in good time. The Government’s reply was transmitted
to the source,
which did not transmit its comments.
3. The Working Group regards deprivation of liberty as arbitrary in the
following cases:
(i) When it manifestly cannot be justified on any legal basis (such as
continued
detention after the sentence has been served or despite an applicable amnesty
act)
(category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence
for the
exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18,
19, 20
and 21 of the Universal Declaration of Human Rights and also, in respect
of
States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International
Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international
standards
relating to a fair trial set forth in the Universal Declaration of Human
Rights and
in the relevant international instruments accepted by the States concerned
is of
such gravity as to confer on the deprivation of liberty, of whatever kind,
an
arbitrary character (category III).
4. In the light of the allegations formulated, the Working Group welcomes
the cooperation
of the Government.
5. According to the source of the communication, William Agyegyam, a Ghanaian
national,
was sitting a college examination on 4 February 1999, when he was arrested
for illegally
overstaying in the United Kingdom. Mr. Agyegyam had arrived in the United
Kingdom
on 23 November 1988 and applied for political asylum; his request was denied
in 1991. He
reportedly was never informed that he would be deported.
6. According to the source, Mr. Agyegyam, who has resided in the United
Kingdom for
over 11 years, would face severe hardship if deported from the United Kingdom.
He claims to
have lost everything in Ghana, and has nothing to look forward to there.
He argues that he
started a new life in the United Kingdom, by pursuing higher education
and developing social
ties. There is no indication from the material submitted by the source
that he has any prior
criminal record. On the other hand, the information provided by the source
does not contain any
elements justifying the conclusion that he would face political or other
persecution in Ghana, if
deported.
7. In its reply, the Government of the United Kingdom provides a detailed
explanation of
the procedure that was followed in Mr. Agyegyam’s case and which led to
his arrest
on 4 February 1999 and his deportation to Ghana, with his full consent,
on 18 June 1999. The
procedure was as follows:
- 12 November 1995: arrested for motoring offence and taken to a police
station.
Doubts arose as to his immigration status and he was interviewed by an
immigration
officer under caution, in the presence of a duty solicitor;
- 12 November 1995: served with a notice that he was an illegal entrant
as defined in
section 33 (1) of the 1971 Immigration Act;
- 13 November 1995: granted temporary admission to the United Kingdom under
paragraph 21 of Schedule 2 to the Act. He was served with a notice requiring
him to
reside at a specific named address;
- 10 April 1996: Mr. Agyegyam’s asylum application was refused, and he
was served
with notice of the decision and the reasons for it. He was advised of his
right to
appeal before his removal. The notice advised him how to exercise his right
to appeal
and of the availability of free legal advice from two voluntary organizations,
independent of the Government;
- 26 September 1997: Mr. Agyegyam’s appeal, under section 8 (4) of the
1993 Asylum
and Immigration Appeals Act, was heard by an independent special adjudicator.
He
was represented by counsel and gave evidence through an official interpreter.
The
adjudicator determined that Mr. Agyegyam did not have a well-founded fear
of
persecution for any reason under the Convention relating to the Status
of Refugees, if
returned to Ghana. Mr. Agyegyam next contacted the Immigration Department
in
February 1998, when he applied for indefinite leave to remain outside of
the
Immigration Rules. On 16 September 1998, this application was refused;
- 4 February 1999: Mr. Agyegyam was arrested and detained pursuant to
paragraph 16 (2) of Schedule 2 to the Immigration Act and served with notice
advising him that directions had been given for his removal to Ghana on
7 February 1999. He was advised of his right of appeal, after removal,
under
section 16 (1) of the Act. Directions for removal were deferred until 12
February,
because his representatives indicated that they wished to apply to the
High Court for
leave to move for judicial review of the decision to remove him. The application
having been lodged with the High Court, removal was deferred to allow the
Court to
consider it before Mr. Ayegyam’s removal;
- 14 June 1999: Mr. Ayegyam signed a disclaimer, in which he stated that
he was
aware of the legal representations made on his behalf, but that he wished
to leave the
United Kingdom without waiting for the outcome of those representations.
On the
same day, he was served notice that directions had been given for his removal
to
Ghana on 18 June 1999. He was once again notified of his right of appeal,
after
removal. Mr. Agyegyam was duly removed in accordance with these directions.
8. The Working Group’s mandate does not enable it to examine the procedure
which
preceded Mr. Agyegyam’s detention or the procedure which resulted in the
decision to remove
Mr. Agyegyam from the territory of the United Kingdom. Pursuant to its
methods of work, the
Working Group can only examine the character of the deprivation of liberty
of the individual
concerned. Under article 17 (a) of its working methods, the Group may file
a case if the
individual concerned has been released; but its working methods also enable
it to formulate an
Opinion, on a case-by-case basis, on the arbitrary or non-arbitrary character
of the deprivation of
liberty, notwithstanding the release of the person concerned. The Working
Group is in a position
to do so in the case of Mr. Agyegyam.
9. In the light of the legal and procedural guarantees laid down in the
relevant
United Kingdom legislation (i.e. the Immigration Act of 1971 and Schedule
2 thereto;
the 1993 Asylum and Immigration Appeals Act), the European Convention on
Human Rights
and Fundamental Freedoms (art. 5 (1) (b) and (f)) and the International
Covenant on Civil and
Political Rights and other relevant international instruments, and having
concluded, after
examination of the detailed reply of the Government, that the United Kingdom
immigration
authorities respected those legal and procedural guarantees in the case
of Mr. Agyegyam, the
Working Group renders the following opinion:
The deprivation of liberty of Mr. Agyegyam from 4 February 1999 to 18 June
1999 was
not arbitrary.
Adopted on 1 December 1999
E/CN.4/2001/14/Add.1