(back to preceding text)

    28.  The Court of Appeal came to the following conclusion (p 791, para 64):

"This appeal is concerned with article 9. Our reasoning has, however, wider implications. Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage article 3, the English court is not required to recognise that any other article of the Convention is, or may be, engaged."

The Court of Appeal ruled out as a matter of law the possibility that any article other than article 3 could ever be engaged. It will be necessary to examine whether the principles of the ECHR, and the evolving jurisprudence of the ECtHR, justified this conclusion.

    29.  There is much in the legal analysis of the Court of Appeal which is uncontroversial. The Court of Appeal emphasised the principle of territoriality expressed in article 1 of the ECHR: p 785, para 47. The notion of jurisdiction is essentially territorial. However, the ECtHR has accepted that in exceptional cases acts of contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the ECHR: Öcalan v Turkey (2003) 37 EHRR 238, 274-275, para 93; Bankovic v Belgium (2001) 11 BHRC 435. The effect of the decision of the ECtHR in Soering v United Kingdom (1989) 11 EHRR 439 was that the extraditing or deporting state is itself liable for taking actions the direct consequence of which is the exposure of an individual abroad to the real risk of proscribed treatment. The Court of Appeal rightly stated that Soering is an exception to the essentially territorial foundation of jurisdiction. It is important, however, to bear in mind that apart from specific bases of jurisdiction such as the flag of a ship on the high seas or consular premises abroad, there are exceptions of wider reach which can come into play. Thus contracting states are bound to secure the rights and freedoms under the ECHR to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad: Cyprus v Turkey (1976) 4 EHRR 482, at p 586, para 8. Moreover, the doctrine of positive obligations under certain guarantees of the ECHR may in exceptional cases require states to protect individuals from exposure to foreseeable flagrant risks of violations of core guarantees caused by expulsions: D v United Kingdom (1997) 24 EHRR 423.

    30.  The Court of Appeal stressed the public importance of maintaining immigration control in the United Kingdom. The Court of Appeal was right to do so. As a matter of international law states have the right to control the entry, residence and expulsion of aliens. This right is, however, subject to the treaty obligations under the Refugee Convention and the ECHR: Henao v The Netherlands, ECtHR (Application No 13669/03) (unreported) 24 June 2003. A consequence of this general principle is that, except in wholly exceptional circumstances (such as was visualised in D v United Kingdom, aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a contracting state in order to benefit from medical, social or other forms of assistance provided by the expelling state: Henao's case.

    31.  The Court of Appeal explained why article 3 of the ECHR could become engaged. The rationale is that "it would affront the humanitarian principles that underlie the Convention and the Refugee Convention for a state to remove an individual to a country where he or she is foreseeably at real risk of being seriously ill-treated": p 785, para 47. As far as it goes this proposition is unassailable. The Court of Appeal contented itself with saying that article 3 provides the test of such treatment. The potential scope of article 3 was helpfully explained by the ECtHR in Henao as follows:

"While it is true that article 3 has been more commonly applied by the Court in contexts where the risk to the individual of being subjected to ill-treatment emanates from intentionally inflicted acts by public authorities or non-state bodies in the receiving country, the Court has, in the light of the fundamental importance of article 3, reserved to itself sufficient flexibility to address the application of that article in other contexts which might arise. It is not, therefore, prevented from scrutinising an applicant's claim under article 3 where the risk that he runs of inhuman or degrading treatment in the receiving country is due to factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that article. To limit the application of article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances of the case to rigorous scrutiny, especially the applicant's personal situation in the expelling state (see Bensaid v the United Kingdom, no. 44599/98, paras 32 and 34, ECHR 2001-I)."

The Refugee Convention

    32.  Three related matters were not discussed by the Court of Appeal but were raised in oral argument. The first was the link between what could constitute persecution under the Refugee Convention and fundamental rights under the ECHR. Specifically, a question was raised about the extent to which human rights may inform the meaning of persecution. In an illuminating analysis Professor Hathaway (The Law of Refugee Status (1991)) summarised the position as follows (at page 112):

"In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community."

This view has already been approved by the House on two previous occasions: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495, per Lord Hope of Craighead; Sepet v Secretary of State for the Home Department [2003] 1 WLR 856, 862, para 7, per Lord Bingham of Cornhill. I would respectfully also endorse it.

Extradition and expulsion

    33.  The second point related to the distinction between extradition and expulsion. Undoubtedly the purpose of the two procedures is different. The procedures serve different public interests. But in the context of the possible engagement of fundamental rights under the ECHR the Strasbourg court has not in its case law drawn a distinction between cases in the two categories: see Cruz Varas v Sweden (1991) 14 EHRR 1, 34, para 70. For my part I would also not do so.

Positive obligations

    34.  The third point is that nowhere in the judgment is there any direct discussion of the development by the ECtHR of positive obligations under the ECHR. The Convention is mainly concerned with what a state must not do. But for the purpose of rendering fundamental rights under the ECHR more effective, the ECtHR has developed certain positive obligations viz obligations which require states to take action. Professor Mowbray (The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004, p 2) gave the following examples of recognised categories:

"examples include to investigate a killing, to protect vulnerable persons from serious ill-treatment inflicted by others, to provide arrested persons with a prompt explanation of the reasons for their arrest, to provide free legal assistance for impecunious criminal defendants, to provide legal recognition of the new gender acquired by transsexuals who have successfully completed gender re-assignment treatment and to deploy reasonable police resources to protect media organisations from unlawful violence directed at curbing the legitimate exercise of free expression."

It is not possible to consider whether articles other than article 3 may become engaged without taking into account the possible impact of positive obligations under the ECHR on immigration decisions. It is a large subject, and one that was only briefly touched on in oral argument. I will, however, have to make some reference to it. A comprehensive discussion of the subject will have to await another day.

Precedent

    35.  In its review of the decisions of the ECtHR the Court of Appeal observed "While the Strasbourg court has contemplated the possibility of such a step [viz the extension of the Soering principle to articles other than article 3] it has not yet taken it"(p 785, para 47). I understand this to be a view that even where the ECtHR ruled that other articles are engaged or may become engaged this does not amount to an authoritative precedent in the absence of a finding of a violation in the particular case. In my view this is too narrow an approach to the evolving jurisprudence of the ECtHR. Where it concludes that there was no breach of a convention right, the ECtHR may nevertheless rule on the reach of the right.

Three critical decisions

    36.  It will be useful as a starting point to examine how the Court of Appeal analysed three critical decisions. The Court of Appeal categorised Abdulaziz as follows (p 783, para 43):

"In the leading case of Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 applicants living within this jurisdiction complained that their article 8 rights were infringed because their husbands were not permitted entry in order to join them. The United Kingdom argued that neither article 8 nor any other article of the Convention applied to immigration control. In rejecting this argument the Strasbourg court remarked that the applicants were not the husbands but the wives and that they were not complaining of being refused leave to enter or remain in the United Kingdom, but as persons lawfully settled in the country of being deprived or threatened with deprivation of the company of their spouses."

(Emphasis added)

    The fact that the applicants were wives rather than husbands was one basis of the decision. The ECtHR observed (7 EHRR 471, 495, para 60):

"The applicants are not the husbands but the wives, and they are complaining not of being refused leave to enter or remain in the United Kingdom but, as persons lawfully settled in that country, of being deprived (Mrs Cabales), or threatened with deprivation (Mrs Abdulaziz and Mrs Balkandali), of the society of their spouses there.

Above all, the Court recalls that the Convention and its Protocols must be read as a whole; consequently a matter dealt with mainly by one of their provisions may also, in some of its aspects, be subject to other provisions thereof. Thus, although some aspects of the right to enter a country are governed by Protocol No 4 as regards states bound by that instrument, it is not to be excluded that measures taken in the field of immigration may affect the right to respect for family life under article 8. The Court accordingly agrees on this point with the Commission."

  (Emphasis added)

It is clear, therefore, that the over-arching basis for the conclusion was that decisions in the field of immigration must respect fundamental rights under article 8.

    37.  The next case is Soering v United Kingdom (1989) 11 EHRR 439. Directly at issue was the question whether the extradition of the applicant to Virginia on a charge of capital murder could engage article 3. The ECtHR held (p 469, para 91):

"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing contracting state by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."

The Court of Appeal analysed Soering as if it provided no authority that articles other than article 3 may be engaged. That is, however, not correct. The following passage in the judgment of the ECtHR, which was not cited or referred to by the Court of Appeal, demonstrates this:

"85. As results from article 5(1)(f), which permits 'the lawful . . . detention of a person against whom action is being taken with a view to . . . extradition,' no right not to be extradited is as such protected by the Convention. Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a contracting state under the relevant Convention guarantee. What is at issue in the present case is whether article 3 can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing state as a result of treatment or punishment administered in the receiving state."

There is a footnote (86) to the second quoted sentence. It states: "See, mutatis mutandis, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, paras 59-60 - in relation to rights in the field of immigration." The right engaged in Abdulaziz was, of course, article 8. In other words, the ECtHR made clear again that articles other than article 3 could be engaged. The issue identified in the third quoted sentence was answered in the affirmative in Soering: pp 467 - 468, para 88.

    38.  The consideration of Bensaid v United Kingdom (2001) 33 EHRR 205 by the Court of Appeal also needs to be examined. The court held that the removal to Algeria of a person suffering from schizophrenia involving a psychotic illness would not violate article 3 because it had not been shown on the facts that adequate healthcare was not available in Algeria. Dealing with the possible application of article 8 the ECtHR held (p 219, para 46):

"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by article 8. However, the Court's case-law does not exclude that treatment which 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 Court of Appeal said (pp 784 - 785, para 46):

"Part of the reasoning of the Strasbourg court suggests that the treatment that a deportee is at risk of experiencing in the receiving state might so severely interfere with his article 8 rights as to render his deportation contrary to the Convention. The more significant article 8 factor was, however, the disruption of private life within this country. There is a difference in principle between the situation where article 8 rights are engaged in whole or in part because of the effect of removal in disrupting an individual's established enjoyment of those rights within this jurisdiction and the situation where article 8 rights are alleged to be engaged solely on the ground of the treatment that the individual is likely to be subjected to in the receiving state."

(Emphasis added)

The distinction in the last sentence is not founded on Strasbourg jurisprudence. In both cases, if the high threshold of showing a real risk of a flagrant breach is satisfied on the facts, the engagement of article 8 could in principle be based on the expulsion from the United Kingdom. In any event, the Court of Appeal doubted that article 8 could be engaged by referring to the possible exception of Bensaid v United Kingdom: p 785, para 47 with emphasis added. The doubt was not justified. Indeed, a differently constituted Court of Appeal in R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840; [2003] Imm AR 529, 538, para 20 held that "it is clear that the ECtHR considered that article 8 was engaged on the facts of that case [Bensaid] ".

    39.  Simply on the basis of the three decisions discussed so far there was, contrary to the Court of Appeal's view, a significant body of decisions of the ECtHR which demonstrate that in respect of immigration decisions articles other than article 3 may be engaged.

Other articles of the ECHR

    40.  It may now be useful if I embarked on my own brief tour d'horizon on the question whether in principle articles other than article 3 could become engaged in immigration decisions on the expulsion of aliens. Article 2(1) provides:

"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."

Like article 3 this provision is absolute and not subject to derogation in time of war or public emergency under article 15. The Court of Appeal underlined the central importance of article 3 in the scheme of the ECHR. But the right to life under article 2 is also of fundamental importance. If article 3 may be engaged it is difficult to follow why, as a matter of logic, article 2 could be peremptorily excluded. There may well be cases where article 3 is not applicable but article 2 may be: see Secretary of State for the Home Department v Kacaj [2002] Imm AR 213 (a decision of the Immigration Appeal Tribunal), per Collins J. The positive obligation on member states to provide individuals with suitable protection against immediate threats to their lives from non-state actors abroad may be relevant, in exceptional circumstances, to an immigration decision: Osman v United Kingdom (1998) 29 EHRR 245. Another example could be D v United Kingdom (1997) 24 EHRR 423, which was admittedly a wholly exceptional case. It concerned the proposed expulsion to St Kitts of a person suffering from AIDS in an advanced degree. The ECtHR found that his expulsion would amount to a breach of article 3. It is, however, clear that but for this decision, the applicant would have succeeded under article 2: p 450, para 59. There are principled grounds for not drawing a bright-line between articles 2 and 3.

    41.  Article 4 provides:

"(1)  No one shall be held in slavery or servitude.

(2)  No one shall be required to perform forced or compulsory labour."

Article 4(1) is absolute and not subject to derogation in time of war or public emergency. It is no doubt right that in the modern world a case alleging slavery is perhaps a little unlikely. A case asserting forced labour is less unlikely but, if it arises, would no doubt fall under article 3. But what if the applicant relied only on article 4? Is he to be turned away on the basis that article 4 cannot as a matter of legal principle be engaged? Surely that would be contrary to the spirit of a human rights convention.

    42.  Article 5(1) provides:

"Everyone has the right to liberty and security of person."

Then follows a list of cases in which a person may be deprived of his liberty, eg after conviction. For present purposes article 5(4) is also relevant. It provides:

"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."

These are qualified guarantees and they are subject to derogation in times of war and public emergency.

    43.  In terms of the maintenance of the rule of law, which underlies all human rights instruments, article 5 is of great importance. Imagine a case of intended expulsion to a country in which the rule of law is flagrantly flouted, habeas corpus is unavailable and there is a real risk that the individual may face arbitrary detention for many years. I could, of course, make this example more realistic by citing the actualities of the world of today. It is not necessary to do so. The point is clear enough. Assuming that there is no evidence of the risk of torture or inhuman or degrading treatment, is the applicant for relief to be told that the ECHR offers in principle no possibility of protection in such extreme cases? I would doubt that such an impoverished view of the role of a human rights convention could be right.

    44.  Article 6(1) provides:

"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."

This is a qualified right and it is subject to derogation in time of war or public emergency. Moreover, in deciding what amounts to a fair trial the triangulation of interests of the accused, the victim and the public interest may require compromises, eg to protect children in abuse cases, women in rape cases, and national security. On the other hand, there are universal minimum standards. It is important to bear in mind the status of the right to a fair trial. It is a universal norm. It requires that we do not allow any individual to be condemned unless he has been fairly tried in accordance with law and the rule of law. The guarantee of a fair trial is a core value under the ECHR. In Einhorn v France (decided by the ECtHR (Application No 71555/01) (unreported) 16 October 2001) which was not cited in the Court of Appeal, the Strasbourg court summarised the position. It observed (para 32):

" … the Court reiterates that it cannot be ruled out that an issue might exceptionally be raised under article 6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of justice in the requesting country (see the Soering judgment cited above, p 45, § 113, and, mutatis mutandis, the Drozd and Janousek v France and Spain judgment of 26 June 1992, Series A no 240, p 34, para 110)."

This was said in the context of extradition but, on the principles laid down by the ECtHR, the same would apply in an expulsion case. In Einhorn, as in the earlier cases, no violation was found established. That cannot, however, affect the binding force of the Strasbourg jurisprudence on the point. It can be regarded as settled law that where there is a real risk of a flagrant denial of justice in the country to which an individual is to be deported article 6 may be engaged.

    45.  Article 7 provides:

"(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."

This is among the first tier of core obligations under the ECtHR. It is absolute and non derogable. It is not likely to arise often in the context of immigration decisions to expel aliens. It could, however, arise. Bearing in mind the principles laid down by the ECtHR in respect of extradition and expulsion involving a real risk of a flagrant violation of fair trial rights, the same must be the case in respect of this obligation.

    46.  Article 8 provides:

"(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 8 contains qualified guarantees, which are derogable in time of war and public emergency. On the other hand, the European jurisprudence make clear that it enshrines core values.

    47.  It has already been explained how in the important decisions of Abdulazziz and Bensaid the ECtHR accepted that extradition and expulsion may in cases of a real risk of a flagrant violation of the guarantee of family or private life engage article 8. Moustaquim v Belgium (1991) 13 EHRR 802 involved an application of these principles. Boultif v Switzerland (2001) 33 EHRR 1179 was decided after Bensaid. An Algerian had entered Switzerland in 1992. In 1993 he married a Swiss citizen. In 1997 he was sentenced to two years imprisonment for robbery. In 1998 the Swiss authorities refused to renew his residence permit. He was expelled. He brought a claim under article 8. The ECtHR held:

"39. The Court recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in article 8(1) of the Convention.

40. In the present case, the applicant, an Algerian citizen, is married to a Swiss citizen. Thus, the refusal to renew the applicant's residence permit in Switzerland interfered with the applicant's right to respect for his family life within the meaning of article 8(1) of the Convention.

41. Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of article 8. It is therefore necessary to determine whether it was 'in accordance with the law', motivated by one or more of the legitimate aims set out in that paragraph, and 'necessary in a democratic society'".

Perhaps a little surprisingly the ECtHR found a violation of article 8 and ordered a modest sum to be paid by way of just satisfaction. Another possible field of application could be the expulsion of an alien homosexual to a country where, short of persecution, he might be subjected to a flagrant violation of his article 8 rights. In Z v Secretary of State for the Home Department [2002] Imm AR 560 this point came before the Court of Appeal. Schiemann LJ (with whom the other members of the court agreed) was not prepared to rule out such an argument. In my view he was right not to do so. Enough has been said to demonstrate that on principles repeatedly affirmed by the ECtHR article 8 may be engaged in cases of a real risk of a flagrant violation of an individual's article 8 rights.

    48.  Now I turn to a cluster of qualified guarantees, viz article 9 (Freedom of thought, conscience and religion), article 10 (Freedom of expression), article 11 (Freedom of assembly and association) and article 14 (Prohibition of discrimination). It is easy to see how these articles could be relevant to the question of what may constitute persecution under the Refugee Convention. Beyond such cases it is less easy to visualise the application of any of these articles to a decision to expel an alien. The jurisprudence of the Strasbourg court does not provide much help. On the other hand, the possible engagement of these articles has not been ruled out. I would also not rule out their possible application in the field of immigration decisions. Saying never in law often requires courts to swallow their words in circumstances not previously contemplated.

Conclusion