Applicability of the ECHR in immigration cases

The protected Convention rights are universal and intended to apply to everyone within the United Kingdom ’s jurisdiction, not just British nationals. The preamble of the ECHR describes the rights as having a universal quality - they apply to all persons regardless of nationality, race, sex or other “status”.

There are three broad categories of case where the ECHR has an impact in the field of immigration and asylum law:

• Firstly, there is the class of case where the claimant asserts that her removal from the United Kingdom would infringe the human rights she has established in the United Kingdom . These types of case are referred to by the House of Lords as ‘domestic cases’. For example, if a person has established a family or private life in the United Kingdom which will be breached by removal abroad, this is a domestic case.
  
• Secondly, there is a class of case where the claimant asserts that her human rights will be breached after removal from the United Kingdom , i.e. in the future. These types of case are referred to as ‘foreign cases’. For example, if a person will experience torture or inhuman or degrading treatment in her own country after removal from the UK , or her mental and/or physical health would deteriorate catastrophically because medical treatment would be unavailable in the future, this would be a foreign case.
  
• Thirdly, there is the class of case where it is alleged that the behaviour of the authorities in this country presents a risk of a breach of human rights. This is most likely to arise in detention or support cases.
  

It was the House of Lords case of Ullah and Do that established definitely in UK law that all of the articles of the ECHR can potentially be relied on in foreign cases. The Strasbourg cases of Soering v UK (1989) 11 EHRR 439 and Chahal v UK (1996) 23 EHRR 413 had already established that Article 3 could operate to prevent removal where there was a real risk of a future breach of human rights. However, for articles other than article 3, it is necessary to show that there would be a ‘flagrant breach’ of the right or rights in question, or that the right or rights would be completely nullified. This is sometimes referred to as the Devaseelan test after the starred determination that first set out this test.

The Home Office view, set out in the APIs, of what constitutes a flagrant breach is as follows:

“9. A flagrant breach will only occur where conditions in a country are such that it is impossible for a person to exercise any meaningful aspect of a non-Article 3 ECHR right. The following examples would not be flagrant breaches because they do not amount to a complete denial of the right in question (ie they do not meet the Devaseelan test):

- trials where quality of legal representation is poor or where the standard of proof was balance of probabilities

- someone who had to travel a long way to exercise their religion and had to do so in a discreet way