Your Rights: client facing expulsion

Section 6 of the Human Rights Act 1998 prohibits all public authorities from acting incompatibly with an individual’s human rights. Thus it has now become a breach of the HRA for the Home Office to remove an individual from the UK if to do so would involve a breach of his/her human rights.

The Home Office argued for a long time that only Article 3 ECHR had this ‘extra-territorial effect’. They essentially argued that this article was an exceptional case due to its absolute nature – requiring a government not only to refrain from causing Art 3 treatment, but also to avoid exposing individuals to such treatment.

The House of Lords has now conclusively held that there is no such ‘magic’ to Article 3, and that breaches of other provisions of the Convention will also engage the responsibility of the ‘removing state’ if those breaches are sufficiently ‘flagrant’.

• R v Special Adjudicator, ex parte Ullah [2004] UKHL 26
Mr Ullah was from Pakistan and an active member of the Ahmadhiya faith. He claimed asylum in the UK on the basis that he had a well-founded fear of persecution as a result of his religious beliefs. His claim under the Refugee Convention was rejected, and the question arose as to whether he could also claim asylum on the basis of a breach of his Article 9 ECHR right to respect for his religion.

The House of Lords accepted that breaches of Articles other than Article 3 could theoretically give rise to claims for asylum. However, in the case of these non-absolute rights, the balancing of the public interest in maintaining an effective system of immigration control against the rights of the individual requires that only ‘flagrant denial’ or ‘gross violation’ of rights will lead to a successful claim.

Notes about using the Human Rights Act

• Some asylum seekers who do not qualify for protection under the 1951 Convention, may still qualify for protection under the ECHR (as incorporated by the HRA 1998).

• Human rights claims should not be brought instead of refugee status claims, if a refugee claim can be made. See below why a successful claim under the 1951 Convention is preferable.

• Under the Home Office Humanitarian Protection policy, an asylum claim will always be deemed to be a claim for Humanitarian Protection. As a result, even where the ECHR has not been mentioned specifically by the applicant, the HO should consider whether, if returned, the applicant would face in the country of return a breach of their human rights.

• However, advisers should be prepared to emphasise the human rights aspects of an asylum claim where there are reasons to think that the claimant may obtain protection under the ECHR even if they can not demonstrate that they are a refugee (see below for possible situations).

The below is a more in depth look at how each Article may be relevant for immigration status:

Article 2
• Article 2 (the right to life) requires the state not to take life (except in the lawful situations described) and also to act positively to protect it.

• NB Despite being explicitly excepted from Article 2, the death penalty is a breach of human rights due to the UK signing the optional Article 1 of the 6th protocol.

• Article 2 can be used in cases, or where is a risk of extra-judicial or judicial killing by agents of the state, or where there is a risk of fatal violence from others against which the state can not offer the required standard of protection.

• However, in practice, most breaches of Article 2 will also be breaches of Article 3.

Article 3
• The Home Office’s argument that this is the only Article of the Convention that can be relied upon in expulsion cases has now been rejected. Nevertheless, this remains the crucial right for asylum cases.

Article 3 can be divided into three separate categories of ill treatment:
1- Torture.
2- Inhuman treatment or punishment.
3- Degrading treatment or punishment.

• Article 3 is an absolute, non-derogable right. The strength of its protection is diluted only by the extremely high threshold that must be passed for treatment to come within Article 3. In immigration claims it is necessary to show that the ill treatment feared is of sufficient severity to meet that protected by any of the three forms of harm above.

• The standard of proof is a ‘real risk’ of treatment in breach of Article 3.

Circumstances in which Article 3 may provide protection when the refugee convention does not:
1- No exclusion from protection. The right to be protected under Article 3 is absolute and unqualified. A person excluded from protection under the 1951 because of their conduct or because they are threat to national security may not be removed if they will be exposed to a risk of treatment contrary to Article 3.
2- No convention reason needed. Under Article 3 asylum-seekers does not have to show that they risk harm as a result of one of the convention reasons. The purpose of Article 3 is to protect individuals from serious harm regardless of why it is caused.
3- Protection in civil war situations. Exposure to the ordinary effects of a civil war will fill under Article 3 protection.
4- No need to show a risk of ‘persecution’. Article 3 can provide greater protection because:
 it does not require continuation or persistence.
 and the lower intensity forms of harm (inhuman or degrading treatment or punishment) may provide protection where the harm is not severe enough to amount to persecution.
5- No need for ill-treatment. Article 3 does not require ill treatment by the receiving state, any person or group of people. It could be breached simply by the effect of removal on the individual in question or the effect on them of the withdrawal of facilities presently provided in the sending state.
6- British citizen relatives. Article 3 does not require that a person is outside his own country. Article three applies to anyone within the territory of a contracting state.

Article 4
• This article prohibits slavery. It has been rarely used.

• Article 4 is relevant where returning someone would expose them to:
 gangs trafficking in women or children for prostitution;
 forced or compulsory labour; or
 abductions by militias of forced recruits in military struggles.

Article 5
• The main purpose of Article 5 is to protect people from arbitrary detention and to provide certain procedural safeguards for those people who are lawfully detained.

• Where a person is to be returned to their country in circumstances where they face detention in breach of these conditions, there may be a breach of Article 5.

• Article 5 may offer greater protection than the Refugee Convention. For example, where:
 It is found that the person faces detention contrary to Article 5 but for only a brief period of time and without the risk of ill-treatment or persecution.
 Arbitrary detention carried out for a legitimate purpose without risk of ill-treatment or persecution.
In both cases, the IAT has founded that only flagrant or gross breaches of Article 5 in the country of return will mean that the sending state is in breach of the right.

Article 6
• The ECtHR has indicated, and the House of Lords in Ullah confirmed, that a flagrant breach of Article 6 in the receiving state could amount to a breach of the right.

• Immigration rights themselves have been held not to constitute civil rights within Article 6.

Article 7
• Article 7 can be raised if a person faces prosecution and trial on return for an offence which was not an offence when the person carried out the act in question.

Article 8
• The right to respect for a private and family life in Article 8 has a role in claim for protection cases.

• Treatment which is less severe that Article 3 treatment may still infringe a person’s private life where there are sufficiently adverse effects on physical and moral integrity (see Bensaid v UK [INLR] 325 where the applicant, an Algerian national, was a schizophrenic suffering from a psychotic illness. He had arrived in the UK as a visitor and was receiving treatment for his condition. The decision to deport him was resisted on both Article 3 and Article 8 grounds. The Court accepted that treatment that does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.

• The IAT indicated in several cases that it is unlikely that there would be an unjustifiable breach of Article 8 if Article 3 is not also breached. However in many circumstances Article 8 was breached without the breach of Article 3 or the Refugee Convention.

• Advisers should not abandon the Refugee Convention in this kind of case.

For further information on what amounts to a Family Life for the purpose of Article 8, please click here

Article 9
• If a person can show that their right to actually hold their belief will be infringed if they are returned, the home office may not be able to rely upon the requirements of immigration control to justify returning them nor on any justification which the receiving state may have for interfering with the right.

• However, where a person has relied on Article 9, the ECtHR has tended to treat claims as raising issues under Article 10 and 11 (in which restrictions apply in all circumstances) rather than Article 9.

Article 10
• Article 10 is usually involved in issues of press freedom and could also involve forms of political or cultural expression.

Article 11
• Those who have been or will be prevented from forming or joining a political party or organisation in their country of origin might rely on Article 11.
Result of a successful human rights claim

If an applicant successfully claims under the 1951 Convention he will gain refugee status and indefinite leave to remain (‘ILR’). This means that there are no conditions placed on his stay in the UK.

If an applicant fails to show that he should gain refugee status, but successfully shows that he would face a real risk of Article 3-type treatment in the country of return, he will be given humanitarian protection (‘HP’).
 HP usually last for 3 years (although it can be granted for shorter periods).

 At the end of the 3 years (or shorter period) the Home Office will review the case. If the risk of Article 3 breach no longer exists, further leave to remain will be refused. If the risk remains, the applicant will usually be granted ILR.

 HP can be refused if the applicant has committed “a crime against peace, a war crime, or a crime against humanity”, has committed a serious crime in the United Kingdom or overseas, has been guilty of acts contrary to the purposes and principles of the United Nations or if they are considered to be a threat to national security. A person may also be excluded where this is considered appropriate in the light of their character, conduct or associations. In these circumstances the individual will receive only discretionary leave (‘DL’).

NB If an applicant has gained HP or DL, he may appeal in order to ‘upgrade’ – either DL to HP or HP to refugee status.

Meaning of discretionary leave

 DL may be granted for up to 3 years.
 On expiry of that period, DL may again be granted for up to 3 years if deemed necessary.
 After 6 years of DL, an individual will normally become eligible to apply for ILR.

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My client is facing expulsion from the UK having made a failed claim for protection; can the Human Rights Act 1998 be used to resist deportation?