Article 3 is an absolute right. This means that it is engaged absolutely once the threshold of torture, inhuman or degrading treatment is reached. Whether Article 3 is or will be breached is clearly a question of fact on the particular circumstances of the case.
What is this threshold?
Ireland v UK (1978) 2 EHRR 25 – the treatment/punishment complained of “must attain a minimum level of severity”. The threshold is relative and will depend on the “sex, age and state of health” of the victim.
- Torture: deliberate inhuman treatment causing very serious and cruel suffering.
- Inhuman treatment: treatment that causes intense physical and mental suffering.
- Degrading treatment: treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance.
Where might a breach of Article 3 arise?
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- In circumstances abroad e.g. connected to an asylum claim, where a person will be denied healthcare treatment/drugs.
- In circumstances connected with the removal of an individual.
- In the UK – policies on destitution/support etc.
Asylum/protection: There is an obvious link between Article 3 ECHR and the protection issues raised by the Refugee Convention.
In circumstances where a person does not qualify under the Refugee Convention definition – e.g. they do not fall squarely into one of the five reasons (race, religion, nationality, social group, political opinion) for persecution (see Chapter 6 for further details) – they may nevertheless be at risk of torture or inhuman or degrading treatment in their country of origin for other reasons. Returning them to that country may expose them to torture, inhuman or degrading treatment and evidence of this will need to be shown to justify a grant of leave. The UKVI may grant Humanitarian Protection if serious risk to life or person arising from the death penalty, unlawful killing (Article 2) or torture or inhuman or degrading treatment or punishment (Article 3) is shown.
It should be noted that the ECHR does not have the same limitation clauses as the Refugee Convention excluding persons from protection and this area is the subject of considerable change and debate in the context of terrorist suspects.
Medical treatment abroad: It is argued in some cases that a difference in medical treatment between the UK and the country to which a person is to be removed will cause suffering or death and that removal would therefore breach that person’s human rights. There has been a considerable body of case law on this area, though the courts have virtually eliminated the possibility of arguing medical treatment cases on the basis of Article 3. See the case of N v SSHD [2005]. The UKVI operates a policy in respect of such cases, which would allow a grant of Discretionary Leave in very exceptional circumstances. The threshold for such cases is extremely high and this is confirmed by the case law.
Circumstances connected with removal: it may be argued that the act of removal of a person may expose them to a breach of Article 3 for example if they are suffering from mental health difficulties or they are at risk of committing suicide.
Destitution: There has also been case law on the issue of denying asylum seekers support in circumstances where they are destitute thus exposing them to a breach of Article 3.
Examples of cases in an immigration/asylum context:
Aydin v Turkey [1998] 25 EHRR 251 – the ECtHR found that rape amounted to torture.
Chahal v UK [1996] 23 EHRR 413 – inability to remove person in relation to whom there may be an Article 3 breach despite no other protection being granted (see recent discussion regarding “suspected international terrorists” and whether they can be returned to countries where there may be a breach of Article 3).
N v SSHD [2005] UKHL 31 – lack of medical treatment in country of origin – now very restrictive interpretation.
R v SSHD ex parte Limbuela and others [2004] EWCA Civ 540, UKHL 3/11/05 – destitution in UK due to lack of support for some asylum seekers.