UK: The Impact Of The Strasbourg Jurisprudence From An Immigration Perspective And Articles 3, 6 And 8 Of ECHR

The Human Rights Act 1998 (the Act), came into force on 2^nd October 2000 giving effect to the European Convention for the Protection of Human Rights and fundamental freedoms (ECHR) in the UK. The Courts now have a positive duty to give effect to the Convention and to ensure that there is an effective remedy in cases of suspected breaches.

The Convention comes into force with a highly developed case law from the European Court of Human Rights in Strasbourg, and the Act makes it clear in Section 2 that in interpreting the provisions of the Convention, the Strasbourg jurisprudence must be taken into account as far as possible by national courts and tribunals. This part of European defined rights impinges not only upon the behaviour of public authorities, the courts and tribunals, but also upon disputes across the legal spectrum. It is submitted however that in the UK, the greatest impact of the Convention will be felt in the field of immigration law.

Section 2(1) of the Act requires Courts and Tribunals to take into account the following:

1. Judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
2. Opinion of the Commission given in a report adopted under Article 31 of the Convention,
3. Decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
4. Decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the Court or Tribunal it is relevant to the proceedings to which that question has arisen.

As was recently held by the Court of Appeal, in R v Secretary of State for the Home Department ex parte Holub and Another Times Tuesday 13^th February 2001, the court was not bound to follow the decisions of the European Court of Human Rights, but simply to take them into account.

The substantive convention rights and fundamental freedoms are set out in section 1(1) of the Act. This article concentrates on the Strasbourg jurisprudence with respect to the three most significant Convention rights, namely Article 3, prohibition of torture, inhuman and degrading treatment or punishment, Article 6, right to a fair trial and Article 8, right to respect for private and family life, home and correspondence.

The Immigration and Asylum Act (the 1999 Act) also came into force on 2^nd October 2000 and Section 65(1) provides: A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights, may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.

Section 65(2) of the 1999 Act goes on to provide: An authority acts in breach of a person‘s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by Section 6(1) of the Human Rights Act 1998.

Section 7(1) of the Act stipulates, inter alia: It is unlawful for a public authority to act in a way which is incompatible with a convention right.

Section 7(1) of the Act entitles A person who claims that a public authority who acted (or proposes to act) in a way which is made unlawful by Section 6(1) to:

It is submitted that Section 7(1) with reference to Section 6(1) of the Act gives individuals the same rights in all spheres of UK law where the Convention bites in the like manner as Section 65(1) of the 1999 Act in relation to immigration matters.

Article 3 has often been described as enshrining one of the fundamental values of democratic societies. It prohibits torture, inhuman and degrading treatment and punishment in absolute terms. This means that Article 3 cannot be breached even when there is a state of emergency, as for example, in Ireland v the UK (1978) 2EHRR25 or where the "victim" has been involved in a serious criminal activity or has threatened national security, for example, Chahal v UK (1997) 23 EHRR 413, and H.L.R. v France (1997) 26 EHRR 29. In H.L.R v France the European Court of Human Rights stated very clearly that Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment irrespective of the victim’s conduct.

Not all treatment however will fall within the scope of Article 3. The European Court has often stated that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.

In the Strasbourg jurisprudence, there have been very few findings of torture. This may be because a finding of inhuman or degrading treatment or punishment is sufficient to constitute a violation of Article 3. In this jurisprudence, the term "torture" is said to attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering Ireland v the UK supra.

In Aydin v Turkey (1997) 25 EHRR 251, where the Court did make a finding of torture, the applicant, a 17 year old girl was stripped naked, blindfolded, spun around and around in a car tyre and sprayed with cold water from high pressure waterjets. She was also raped and beaten. The Court found that the rape on its own would constitute torture in this case.

Ill treatment must reach a minimum level of severity before it is said to be "inhuman treatment/punishment". A wide range of different treatments/punishments have been found to reach this minimum level and the harm suffered by the victim may be either mental and/or physical. These include the contemptuous burning of Kurdish religious houses without taking safety precautions or offering financial or other assistance to them (see Selcuk & Asker v Turkey (1998) 26 EHRR 477, Akdivar v Turkey (1997) 23 EHRR 143), the removal from the UK of a man suffering from Aids where the removal would subject him to acute mental and physical suffering ( see D v the UK (1997) 24 EHRR 423), the extradition of a person to the USA where he would face prosecution, the death penalty and the "death row phenomenon" (see Soering v the UK(1998) 11EHRR 439), being blindfolded in a cold, dark cell and "treated in a way which left wounds and bruises on the body", and the subjection to sleep deprivation, continued noise, deprivation of food and drink, the covering of the head and "wall standing" causing detainees to lean against the wall for hours in a spread-eagled position with the weight of their body on their fingers. (See Ireland v the UK supra).

Treatment will be degrading where the victim either in his own opinion, or in the opinion of others, has suffered humiliation or debasement attaining a minimum level of severity. That level has to be assessed with regard to the circumstances of the case. In relation to criminal punishment, the mere fact of being criminally convicted generally includes an element of humiliation, but Article 3 does not include all criminal punishment. In order for punishment to be degrading in breach of Article 3, the humiliation or debasement must attain a particular level and must be more than the ordinary debasement involving criminal conviction. The assessment is relative and depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.

The European Court has stressed that in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right that falls in Article 3 (Turke, Ribitsch v Austria (1995) 21EHRR 573).

Conditions of detention may themselves constitute treatment in violation of Article 3. First Article 3 was found to be violated where there was a real risk of a person facing "the death row phenomenon" in which prisoners are imprisoned for many years awaiting execution (Souring v the UK supra). In this case, the court clarified that the death penalty itself was not a breach of Article 3, but that circumstances in relation to the carrying out of the death penalty could be; these will include the manner in which it was imposed and executed, the personal circumstances of the accused, the proportionality of the sentence to the crime and the conditions of detention awaiting execution. In Tekin v Turkey [9^th June 1998, (52/1997/836/1042)], detention in a cold, dark cell without lighting, bed or blankets in sub-zero temperatures with only food and water constituted a violation of Article 3, even though it was found that relatives had been allowed to visit and give extra clothing.

Article 3 is an absolute right, and as such is the only Article regarded to be extra-territorial. The Convention only governs the conduct of states which are contracting parties to it. It does not oblige contracting states to impose Convention standards on other states because the Strasbourg jurisprudence takes into account that there has to be a margin of appreciation for all States to have a right to control entry, residence and expulsion of non citizens, but they must do so taking into account the requirements of the Convention. Contracting states have an obligation under the Article to safeguard persons in respect of whom there are substantial grounds for believing that, if removed, there is a real risk of their being subjected to treatment in breach of Article 3. Thus, any state party to the ECHR will be in breach of Article 3 if it seeks to remove such a person to a country where there is a real risk that he/she will be subjected to treatment or punishment in breach of the Article. There will also be a breach of Article 3 if there is a real risk that removal itself will be treatment contrary to the Article, or will cause suffering amounting to a breach, regardless of the action or inaction of the country to which the person is to be removed.

This article relates to fair trial proceedings. It remains unresolved how far it can be used in immigration and asylum cases. Although the jurisprudence is developing, the traditional view is that immigration, nationality and asylum rights have been held to fall outside the formula of "civil rights" on the basis that no right exists in domestic law for those without citizenship to remain in the UK. See Agee v the UK (1977) 7DR164 where it was held that the right of an alien to reside in a country is a matter of public law.

In immigration cases, Article 6 may be relevant where, for example, bail applications are concerned, particularly where the detainee with no right to enter or remain in the UK has not been brought before a court or tribunal upon his/her application for bail, notwithstanding the presence of sureties and representatives in court, unless he/she is content for such application to be dealt with in his absence.

Although there is no express guarantee of a right of access to a court, Golder v the UK (1975) 1EHRR 524, decided that such a right of access was inherent in the Article. Therefore a procedure whereby a person’s civil rights are determined without ever hearing the parties submissions is incompatible with this article. See Georgiadis v Greece (1997) 24EHRR 606.

The right of access may be limited and Member States enjoy this margin of appreciation in regulating their procedures so long as they are proportionate. The right of a party to be present only extends to certain types of cases which involve an assessment of a party’s personal conduct, such as for example, the presence of detainees at bail hearings or the giving of evidence by an applicant in his or appeal to a court or tribunal against the refusal of the Secretary of State for the Home Department to grant refugee status in the UK.

This area has not been exhaustively determined by Strasbourg, save that all expert witnesses are to be treated equally irrespective of the party calling them. In UK asylum appeals, expert witnesses appear from time to time to give evidence of the in-country situation in the appellant’s country of residence or nationality, and also may give evidence on torture by, for example, commenting on scarring sustained by the appellant

This is a specific guarantee of a fair trial and is obviously designed to prevent delay from undermining the effectiveness of a court’s judgment. It also has relevance in immigration and asylum law, particularly when there is an unreasonable lapse of time between hearing of the appeal and the preparation of the determination or judgment.

Effective access can be denied if the costs of participating in the proceedings are too high. In Airey v Ireland (1979-80) 2EHRR 305, the applicant complained that she could not enforce her civil right because she could not afford legal representation and there was no legal aid available to her. The European Court emphasized that legal aid was not required in all proceedings, but only where the assistance of a lawyer was indispensable because of the complexity of the procedure of the case.

The hearing must be before a tribunal which is cloaked with judicial functions and able to make effective orders. The capacity to make a recommendation or give advice is not enough. See Van der Kurk v Netherlands (1994) 8EHRR 1.

The public may be excluded on grounds that include the interests of morals, public order, national security, where the interest of juveniles or respect for the private life of parties so require, or to the extent that the court considers that publicity would prejudice the interest of justice. An example may be where a prominent Turkish Kurd gives oral evidence in his/her asylum appeal and requests the court to hear the proceedings in camera. In such cases private hearings are approved where not to do so would be unreasonable taking into account all the circumstances of the case.

This article deals with the right to respect to private and family life, home and correspondence. In Article 8 cases, the burden of proof shifts when different parts of the article are being considered. Moreover, the standard of proof is somewhat different than UK lawyers may be familiar with, for example, the Strasbourg jurisprudence emphasis on the idea of "proportionality". The following aims to be a rough guide to the burden and standard of proof in Article 8 cases:

1. Is one of the issues of Article 8 affected? The evidential burden falls upon the applicant. However, Section 6 of the Act makes it clear that the immigration adjudicator will be obliged to identify that it is a matter affected by Article 8 (or other articles).
2. Is there an interference with Article 8 rights? Again, the evidential burden appears to be on the applicant. It appears to be a reasonable likelihood standard. See for example Halford v UK (1997) 24EHRR 523. In that case, Ms Halford claimed that the police had intercepted phonecalls made on her office telephone and her home telephone. The UK did not dispute that her office telephone calls had been intercepted, but did dispute that her home telephone calls had been intercepted. The Court stated that it would have to be satisfied that there was a reasonable likelihood that they had been. In this case, Ms. Halford had not been able to produce sufficient evidence to show this.
3. Was the interference justified under Article 8(2)? The burden is on the State to show that the interference with the Article 8 right is justified in the terms provided by Article 8(2). The Court will look, in particular whether the interference is proportionate to the aim to be achieved.

Not every decision which affects one of the Article 8 rights will constitute an "interference" with that right. In the Immigration and Asylum context, States do have the right to regulate their borders and individuals do not have a right to live in any country which they choose.

The immigration cases which have raised Article 8 issues before the European Court of Human Rights have generally claimed that there was an interference with Article 8 issues because of (1) expulsion or (2) refusal to grant entry or residence. It is possible that under the Act, there may also be challenges to the grant of limited leave.

Strasbourg seems to have taken a somewhat different approach to expulsion cases on the one hand and entry cases on the other, and appears to be more likely to find an interference in expulsion cases than in entry cases.

In most of Strasbourg’s immigration cases, the Court seems to accept that expulsion would lead to interference if it results in the severing of family ties, perhaps because many of the cases relate to "integrated aliens", who were part of established families in Europe, often the children of such families, for example the case of Moustaquim v Belgium (1991) 13 EHRR 802. In the case of Abdul Aziz v UK (1985) 7EHRR 471 the Court spoke of the need for the applicant to show that there were "obstacles or special reasons" why they should not establish family life elsewhere than the UK. The European Commission expounded a harsher test in Poku v UK (22EHRR CD94) when the Commission said that in its opinion "the extent to which family life or other Article 8 right is effectively ruptured, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them", other factors of immigration control may also be relevant, such as the issue of immigration law breaches.

Is the interference proportionate to the aim to be achieved, i.e. is it necessary in a democratic society?

This has been a key issue in the immigration cases heard by Strasbourg and it is likely to be important for adjudicators.

Under Article 8(2), one needs to consider whether the interference is proportionate to the aim which the State aims to achieve. The burden of proving this is upon the State. The Court has stated very clearly that in deciding what is "necessary in a democratic society", the State must prove that the interference corresponds to a pressing social need and in particular, that it is proportionate to the legitimate aim pursued. See for example, Berrehab v the Netherlands (1989) 11EHRR 322.

The concept of Strasbourg recognises that States should have some latitude in dealing with their internal affairs, because States covered by the ECHR, for example Muslim Turkey, Catholic Ireland and Spain, to the Nordic countries and now to Eastern Europe, have deeply rooted traditions and values. Strasbourg jurisprudence needs to take into account very different values of the societies and should be read with this in mind. In R v DPP ex parte Kebline (1999) 4 ALLER 801, 843-4 Lord Hope made clear that the margin of appreciation does not apply to the decision-making domestic courts. He said, referring to the doctrine of margin of appreciation, that it is an integral part of this provisory jurisdiction which is exercised over State conduct by the International Courts. By conceding a margin of appreciation to each national system, the Court has recognised that the Convention has a living system but it, does not need to be applied uniformly by all States, but may vary its application according to local needs and conditions.

In conclusion, the UK courts and tribunals will be able to strike down some subordinate legislation which is incompatible with Convention rights, and higher courts will be able to make formal declarations of incompatibility, prompting legislative amendments and the well established common law principles will now have to be reassessed in the light of the Convention rights.