Author: TheLawStudent

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?

• • 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.

Introduction

In practical terms, human rights are immensely important in immigration and asylum proceedings. Human rights arguments can be raised as part of an application to enter or remain in the UK and to contest an argument by the UKVI that a person should leave / be removed or deported from the UK.

When considering an application, the UKVI as a public authority should have regard to human rights considerations; and an appeal can be mounted against a negative decision on human rights grounds.

Most commonly in an immigration application or appeal, a person might argue that:

• to return them to their country of origin would expose them to torture or inhuman / degrading treatment there; or
• to remove them from the UK would interfere disproportionately with their right to a private and family life.

There may also be arguments regarding the interference with human rights of the process of removal itself – i.e. that it would be inhuman / degrading. Additionally, the authorities may be accused of breaching human rights within this jurisdiction; for example by detaining someone for an unjustifiably long period, or by denying basic support under the National Asylum Support Service.

The immigration courts will also consider human rights arguments in immigration and asylum appeals and it is possible to mount an appeal on the grounds that a person’s rights under the ECHR will be breached. Similarly the higher courts (High Court, Court of Appeal and Supreme Court) may give consideration to human rights arguments commonly as part of judicial review cases in an immigration or asylum context.

Case law

Judgments relevant to decisions where human rights have been raised can come from various courts; most importantly:

• • Determinations of the Upper Tribunal (Asylum and Immigration Chamber), which reports selected decisions on statutory immigration appeals;
  • Judgments of the Tribunal on applications for Judicial Review;
  • Judgements of the Court of Appeal, on appeal from the Tribunal;
  • Judgments of the Supreme Court, on appeal from the Court of Appeal;
  • Judgments and decisions of the European Court of Human Rights.

Introduction

The HRA 1998 came into force on 2 October 2000. Its aim was to give effect in domestic law to certain rights and freedoms set out in the European Convention on Human Rights. The HRA 1998 does not incorporate the Convention into domestic law, rather it sets up mechanisms by which rights can be taken account of so that there can be use of those rights in domestic law rather than going to the court in Strasbourg.

There are two distinct mechanisms in the HRA 1998:

1. the requirement to interpret legislation in accordance with the Convention;
2. that it is unlawful for public authorities to act in a way which is incompatible with the Convention.

Sections of the Human Rights Act 1998 which may be of particular importance in immigration/asylum proceedings

Section 2 – A court or tribunal determining a question, which has arisen in connection with a Convention right, must take into account any:

• judgments etc of European Court of Human Rights;
• opinions of the Commission;
• decisions of the Commission;
• decisions of the Committee of Ministers.

(The Commission was abolished in 1998 but its decisions and opinions prior to that may be referred to.)

Section 3 -“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

Section 4 – Declarations of incompatibility (i.e. where legislation is found to be incompatible with the Convention): the matter will return to Parliament (due to parliamentary sovereignty) – either to amend the Act with a remedial order or take other remedial steps. If Parliament fails to act, the appropriate remedy would be to apply to Strasbourg (for example A and others v SSHD [2004] UKHL 56).

Section 6 – makes it unlawful for a public authority to act in a way incompatible with the Convention unless they are prevented from doing so by statute.

What is a public authority?

This includes the courts/tribunals and any person certain of whose functions are functions of a public nature.

In an immigration context the UKVI and the immigration courts are included.

Section 7 – applies to section 6 challenges. A claim can only be brought by a ‘victim’, so a victim is defined as a party who is directly affected. Proceedings can be issued in an appropriate court under the HRA or the party can rely on existing proceedings e.g. human rights arguments may be relied on immigration/asylum proceedings. Section 7(5): limitation period – if alleging breach by public authority i.e. s. 6 challenges: one year from act complained of, but need to consider the issue in relation to any other time limit e.g. an asylum appeal time limit or if judicial review the appropriate time limit (maximum 3 months).

Section 8 – the court may grant such relief/remedy within its powers as it considers just and appropriate. The courts must give effect to Convention rights through existing powers and mechanisms available (no new remedies created). Therefore only courts that can already award damages/ compensation will do so and only if necessary for “just satisfaction”.

The Court was set up as one of the mechanisms for operation of the Convention and is located in Strasbourg. Information regarding the operation of the court can be obtained at www.echr.coe.int.

Structure of the rights and their interpretation by the ECHR

The rights can be broken down into those that are:

• Absolute – without qualification e.g. Article 3.
• Limited – on their face e.g. Article 5.
• Qualified by reference to competing public interests e.g. Article 8.

Some general principles in interpreting the Convention Articles:

The rule of law/interference in accordance with the law:

There should be no interference with a protected right unless the citizen knows in advance the basis for the interference because it is set out in an ascertainable law.

There must be an ascertainable legal regime governing the interference in question (see for example Sunday Times v UK (1979) 2 EHRR 245:

“Firstly the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct”).

Legitimate Aims:

Any interference by a public authority with a qualified Convention right must be directed towards an identified legitimate aim. However the Convention provides reasons for restricting rights e.g. Article 8 – legitimate aims set out in second part of the Article – “the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (see for example Handyside v UK (1976) 1 EHRR 737).

In an immigration context see the case of Razgar (2004) UKHL 27 (‘Razgar’.) It is now generally accepted that ‘maintenance of proper immigration control’, although not a legitimate aim in itself, is in accordance with the legitimate aims set out in Article 8.

Proportionality:

Is the interference with a Convention right “necessary in a democratic society”? Limitation from a non-absolute right must be justified in the sense of being “proportionate to the legitimate aim pursued”. However even if the state action is in pursuance of a legitimate aim, this will not justify violation if the means to secure it are shown to be excessive. In an immigration context see Razgar.

Introduction to The European Convention on Human Rights

Human rights is a subtle and complex area, and much litigated. It is therefore constantly evolving and practitioners must take particular care to ensure their knowledge of case law is up to date.

Although human rights concerns arise in many fields, they have particular relevance to immigration law. The most significant aspects of human rights law for the purposes of the LPC course are Article 3 (often in conjunction with an asylum claim, but capable of being argued alone); and Article 8 (often in conjunction with an application based on private or family life under the Immigration Rules, but again, capable of being argued alone.

The full title of the Convention is: Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4.XI.1950)

The Convention It came into force in September 1953. In October 2000 – only 47 years later! – it was directly incorporated into UK law by the Human Rights Act 1998.

Article 1 of the Convention: Obligation to respect human rights: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

The main rights and freedoms of Section 1

Article 2 – Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a) in defence of any person from unlawful violence;
b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 – Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term forced or compulsory labour shall not include:
a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d) any work or service which forms part of normal civic obligations.

Article 5 – Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 7 – No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 14. Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

[*Article 13 – right to an effective remedy – built into Human Rights Act 1998]

There are a number of protocols to the Convention e.g. the First Protocol contains rights in relation to protection of property, a right to education and to free elections. The Sixth Protocol abolishes the death penalty subject to certain limitations.

“Since the Convention’s entry into force thirteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12 and 13 added further rights and liberties to those guaranteed by the Convention, while Protocol No. 2 conferred on the Court the power to give advisory opinions. Protocol No. 9 enabled individual applicants to bring their cases before the Court subject to ratification by the respondent State and acceptance by a screening panel. Protocol No. 11 restructured the enforcement machinery. The remaining Protocols concerned the organisation of and procedure before the Convention institutions” (ECHR website – historical background).

Despite not requiring leave to enter or remain in the UK, it is possible for an EEA national to be excluded or removed from the UK. The restrictions described below derive from the Treaty of Rome (Article 39(48)) (see also Council Directive 64/221) and are repeated in the Immigration (EEA) Regulations 2006 which provide for the exclusion or deportation from the UK of EEA nationals.Regulations 23to 27 provide that a person may be removed from the UK if:

• he is not or has ceased to be a qualified person (or the family member of a qualified person) under the regulations; or
• he is a qualified person (or the family member of a qualified person) but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health or on the grounds of misuse of rights.

What issues may constitute public policy grounds?

The decision must be taken on the basis of the personal conduct of the individual concerned: previous criminal convictions do not in themselves justify a decision. Clearly a decision to exclude or deport is contrary to the principles of free movement and the person concerned must be informed of the grounds on which a decision is taken. Case law suggests that criminal conduct (either very serious or where there is a likelihood of re-offending) and conduct considered a threat to the interests of society / national security may give rise to such cases.

British nationals who have travelled to another EEA Member State and exercised Treaty rights in that state (often, but not always, by working there) will be able to return to the UK accompanied by non-EEA family members and will be able to rely on the Treaty rights/EU law. This principle (also described as the ‘Surinder Singh principle’) was established in the case of R v IAT and Surinder Singh ex p SSHD [1992] 3 CMLR 358. Regulation 9 of the Immigration (EEA) Regulations 2006 incorporated the Surinder Singh judgment. The requirements are:
a) that the British national resided in an EEA state as a worker, student, self-employed, self-sufficient person or acquired the right of permanent residence in an EEA state;
b) the family member and the British national resided together in the EEA state and their residence was genuine;
c) the British citizen would satisfy the conditions for residence if they were an EEA national (e.g. they are within their first 3 months of residence (initial rights of residence) or are a qualified person);

d) the purpose of the residence in the EEA host country was not to avoid
any U.K immigration law applying to non-EEA nationals.

Definition of family member

The applicant must provide evidence of their relationship as a direct family member (reg 7) of the British citizen sponsor.

The UKVI guidance titled ‘Free Movement Rights: family members of British citizens’ (October 2017) states that ‘Applicants claiming to be extended family members (for example, durable partners or dependent relatives) of British citizens do not have a right of residence under the 2016 regulations. If the applicant is an extended family member, you must refuse the application.’

Genuine residence

Following the introduction of the tough financial requirements in July 2012 in relation to family applications under the Immigration Rules (see Chapter 5), there was a significant rise in the number of applications made via the Surinder Singh route, as this was a far easier route than via the domestic law.

The provisions subsequently introduced in the ‘genuine residence test’ made it harder for couples to return to the UK under the EEA route.

Factors relevant to whether the residence was genuine are set out in regulation 9 (3):

• whether the centre of the British national’s life transferred to the EEA state;
• the length of the family members and the British national’s joint residence in the EEA state.
• the nature and quality of the parties’ accommodation in the EEA state, and whether it is or was the British national’s principle home. For example, a mortgaged home or long-term rented accommodation is more likely to indicate genuine residence than living at a hotel or a bed and breakfast, or short stays with friends.
• the parties’ degree of integration in the EEA state, for example proof of speaking the language, having children born or living there, or involvement in the local community;
• whether the family member’s first lawful residence in the EU with the British national was in the EEA state.

However, in ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), the Upper Tribunal found that there is no basis in EU law for the centre of life test. It further found that the test is not to be applied when Judges assess Surinder Singh cases that appear before them.

Where a negative decision has been made in relation to an EEA right, for example, where the family member of an EEA national has been refused entry to the UK, or where the authorities have refused to issue such a person with an EEA family permit, there are rights of appeal. EEA decisions attract a right of appeal. Where there is a national security dimension to the case the appeal will lie to the Special Immigration Appeals Commission (‘SIAC’).

Regulation 36 of the 2016 Regs requires an EEA national and/or a family member or an extended family member of an EEA national wishing to assert a right of appeal to produce evidence of identity and nationality. In addition family members must produce either an EEA family permit or a qualifying EEA state residence card or (in some circumstances) proof of their relationship with the EEA national.

However, applications under the EU Settlement Scheme do not carry a right of appeal. This is because they are not, formally, EEA decisions, but decisions under the Immigration Rules (and not within the range of appealable decisions set out in s.82 Nationality, Immigration and Asylum Act 2002).

Challenges to decisions under the Scheme are therefore by Administrative Review and by Judicial Review.