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Other relevant Convention rights
Article 4
Article 4(1) is the only absolute right amongst the parts of this Article, which could capture cases involving the future threat of trafficking, forced prostitution, or bonded 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.”
It seems highly unlikely that a situation involving a risk of Article 4 ill treatment could arise that would not also breach Article 3. However, in removal cases the existence of Article 4 can perhaps serve as a reminder of a species of Article 3 ill treatment.
Article 5
When seeking to determine the legality of a decision by the Home Office to detain a person subject to immigration control, Article 5 of the Convention, which protects the right to liberty and security of the person, may be invoked. The courts have found the UK ’s Immigration Detention procedures, as set down in the Home Offices ‘Operational Guidance Manual’, to be generally compatible with Article 5, and can properly be regarded as representing the Secretary of State’s view of what is proportionate. However, by necessary inference detention in contravention of that policy must be regarded as a breach of Article 5 on the grounds that it is disproportionate.
Detention in the UK
In S & Ors (R on the application of) v Secretary for the Home Department [2007] EWHC 1654 (Admin) (18 July 2007) Wyn Williams J found Article 5 ECHR should be read in the light of Articles 3 and 37(b) UN Convention on Rights of the Child. Article 37 (b) prohibits the deprivation of liberty of a child in an arbitrary fashion and specifies that detention shall be used a measure of last resort and for the shortest appropriate period of time, which is effectively the same as the Secretary of State’s policy which demands that detention must be used only where all reasonable alternatives are discounted and for the shortest period necessary. The fact that the interests of the child must be a primary consideration when taking action in respect of a child cannot preclude detention in all circumstances.
In A (R on the application of) v The Secretary of State for the Home Department [2007] EWCA Civ 804 Keene LJ in the Court of Appeal found opined that it was a remarkable proposition to argue that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Whereas the Privy Council in Tan Te Lam was expressing itself in terms of jurisdictional fact, one of the accepted bases for a court having the power, in public law cases, to determine facts in pre-Human Rights Act days, the situation has changed with the coming into force of that statute, for a court of law is a "public authority" within the meaning of s 6 of the Human Rights Act, 1998, as section (3)(a) expressly states. It is therefore unlawful for it to act “in a way which is incompatible with a Convention right". The provision that although detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate (Engel v The Netherlands), applies to Article 5(1)(f) as it does to the other provisions of that Article. If the detention is not proportionate, it is in breach of Article 5, and it must be for the court to decide whether or not there is such a breach, as section 6(1) requires. Of course, the court will in most cases attach considerable weight to any assessment emanating from a government department about the progress of negotiations with foreign governments or with airlines about securing the return of deportees.
Article 14
Article 14 prohibits discrimination only in when it can be linked with a lack of respect for one or more of the rights otherwise set out in the European Convention on Human Rights – it is the enjoyment of those rights which must be secured without discrimination. There is very little in the way of helpful case law on the issue so far.
Article 4(1) is the only absolute right amongst the parts of this Article, which could capture cases involving the future threat of trafficking, forced prostitution, or bonded 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.”
It seems highly unlikely that a situation involving a risk of Article 4 ill treatment could arise that would not also breach Article 3. However, in removal cases the existence of Article 4 can perhaps serve as a reminder of a species of Article 3 ill treatment.
Article 5
When seeking to determine the legality of a decision by the Home Office to detain a person subject to immigration control, Article 5 of the Convention, which protects the right to liberty and security of the person, may be invoked. The courts have found the UK ’s Immigration Detention procedures, as set down in the Home Offices ‘Operational Guidance Manual’, to be generally compatible with Article 5, and can properly be regarded as representing the Secretary of State’s view of what is proportionate. However, by necessary inference detention in contravention of that policy must be regarded as a breach of Article 5 on the grounds that it is disproportionate.
Detention in the UK
In S & Ors (R on the application of) v Secretary for the Home Department [2007] EWHC 1654 (Admin) (18 July 2007) Wyn Williams J found Article 5 ECHR should be read in the light of Articles 3 and 37(b) UN Convention on Rights of the Child. Article 37 (b) prohibits the deprivation of liberty of a child in an arbitrary fashion and specifies that detention shall be used a measure of last resort and for the shortest appropriate period of time, which is effectively the same as the Secretary of State’s policy which demands that detention must be used only where all reasonable alternatives are discounted and for the shortest period necessary. The fact that the interests of the child must be a primary consideration when taking action in respect of a child cannot preclude detention in all circumstances.
In A (R on the application of) v The Secretary of State for the Home Department [2007] EWCA Civ 804 Keene LJ in the Court of Appeal found opined that it was a remarkable proposition to argue that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Whereas the Privy Council in Tan Te Lam was expressing itself in terms of jurisdictional fact, one of the accepted bases for a court having the power, in public law cases, to determine facts in pre-Human Rights Act days, the situation has changed with the coming into force of that statute, for a court of law is a "public authority" within the meaning of s 6 of the Human Rights Act, 1998, as section (3)(a) expressly states. It is therefore unlawful for it to act “in a way which is incompatible with a Convention right". The provision that although detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate (Engel v The Netherlands), applies to Article 5(1)(f) as it does to the other provisions of that Article. If the detention is not proportionate, it is in breach of Article 5, and it must be for the court to decide whether or not there is such a breach, as section 6(1) requires. Of course, the court will in most cases attach considerable weight to any assessment emanating from a government department about the progress of negotiations with foreign governments or with airlines about securing the return of deportees.
Article 14
Article 14 prohibits discrimination only in when it can be linked with a lack of respect for one or more of the rights otherwise set out in the European Convention on Human Rights – it is the enjoyment of those rights which must be secured without discrimination. There is very little in the way of helpful case law on the issue so far.
