What impact has the Human Rights Act 1998 had on the UK Immigration Law
The Human Rights Act 1998 is considered one of the most important and influential pieces of British legislation. It has been characterised as the UK’ Bill of rights, and has affected almost all areas of law and policy. Five years after its implementation and seven years after its introduction to Parliament, the Act is said to have changed the way the UK’s immigration law is interpreted and applied, while immigration policies are being adapted to be in line with the principles underlying the Act. This essay will critically examine the impact of the Human Rights Act on the country’s immigration law, outlining how the various rights enshrined in its articles have changed the way foreign nationals are treated by UK public authorities when deciding on issues of deportation, extradition, granting entry and leave to remain. In the light of the recent terrorist events in London, the essay will also look into the application of the Act on immigration issues touching national security.
INTRODUCTION
Since World War II, human rights have played a significant role in the European and international reality of inter-state relations. Particularly over the last two decades, the notion of human rights has enjoyed an even more dominant position in national constitutional law.
However, “one of the last countries in the common law world, and one of the last countries in Europe, to allow its domestic legal system to embrace human rights is the United Kingdom” . However, at the turn of the new millennium, the UK Parliament came face to face with the realities of our modern times and in 1998 enacted legislation to “Bring Rights Home”, as the new labour government called the Bill that preceded the Human Rights Act 1998 (HRA).
When introducing this Bill to Parliament, the then Lord Chancellor, Lord Irvine of Lairg, said: “The traditional freedom of the individual under an unwritten constitution to do himself that which is not prohibited by law gives no protection from misuse of power by the state, nor any protection from acts or omissions of public bodies which harm individuals in a way that is incompatible with their human rights under the convention. Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy. The trend has been upwards. Over half the violations have been found since 1990…This Bill will bring human rights home. People will be able to argue for their rights and claim their remedies under the convention in any court or tribunal in the United Kingdom. Our courts will develop human rights throughout society. A culture of awareness of human rights will develop” .
There can be no doubt that five years after the Act’s full implementation, and seven years after its introduction to Parliament, this significant legislation has brought about a number of constitutional and other significant changes to the UK legal order. The purpose of this essay is to critically examine the impact of the HRA on the UK immigration law.
In particular, the first chapter will attempt a descriptive analysis of the Human HRA, aiming to analyse its main features. The chapter will get to grips with the background of the Act, outlining its relationship with the European Convention of Human Rights (ECHR) and the obligatory effect of the case law of the European Court of Human Rights. Then the second chapter will put this analysis in the context of UK immigration law, outlining the areas that have been mostly affected since the HRA’s full implementation.
Subsequently, the following six chapters will focus on the impact of six substantial rights that are protected in the HRA and are believed to have changed UK immigration law fundamentally. In particular, chapter three will examine the impact of Article 3 on the application and interpretation of UK immigration law. This Article establishes the freedom from torture or inhuman or degrading treatment or punishment and it is absolute in its nature. As it will be argued, Article 3 of the Act had the most profound impact on UK immigration law, and although some other Articles were also important, Article 3 can undoubtedly be characterised as the most influential. That is why the essay will place particular emphasis on examining this Article, outlining the areas it has affected within UK’s immigration procedures.
Chapter four will then examine the impact of another absolute Article. This refers to the right to life (Article 2). Subsequently, chapter five will get to grips with the impact of Article 5 and the right to liberty and security of the person. Chapter six will then look into the effect of Article 6, the right to a fair trial. Chapter seven will investigate the significance of Article 8 which enshrines the right to respect for private and family life, home and correspondence. Chapter eight will then examine the relevance of Article 14 which protects the freedom from discrimination. The impact of the HRA on immigration issues affecting national security will be discussed in chapter nine. This discussion is very timely considering the latest terrorist events in London and the government’s plans to derogate from some of its human rights obligations. All arguments will finally be summarised in the last section of the paper.
THE HUMAN RIGHTS ACT 1998
The HRA came into force on 2nd October 2000. It incorporated into UK law most of the rights and freedoms enshrined in the ECHR, which was signed on 4 November 1950 and came into force on 3 September 1953. The Convention was the product of the Council of Europe, a regional body that was formed after World War II to unify the continent and secure peace and prosperity. Nowadays, the Council consists of 46 member states, which are all signatories to the ECHR.
The UK was one of the first countries who became a member of this Council and who signed the ECHR. However, it was one of the last members who incorporated the Convention into domestic law. In general terms this meant that until the treaty became national law, the UK was bound by it only as a matter of international law and not within the domestic legal system. Among other things, this meant that the Convention could not be used directly in domestic courts. Therefore, its articles could not provide the legal basis for cases fought within national grounds, while UK citizens and individuals living in the country had to pursue these rights at the European level by taking their case to the European Court of Human Rights which sits in Strasbourg.
As Article 1 of the ECHR states, countries who have signed up to the Convention must secure the protected rights for everyone in their jurisdiction and individuals must also have an effective remedy to protect those rights in the country's courts without the need to go to the European Court of Human Rights. The role of the Court was therefore thought to be supplementary, mainly determining whether domestic courts in the 46 member states have been true to the Convention.
When the new labour government was elected, it announced that one of its primary objectives was to “Bring Rights Home”. It therefore launched a very controversial consultation which provoked a lot of discussion and media frenzy. After a series of Parliamentary inquires and a number of amendments, the Bill was finally introduced to Parliament and received its Royal assent becoming fully active in 2000.
Some of the main features of the HRA are:
All types of new legislation must be interpreted so far as it is possible to do so in a way that is compatible with the HRA . When applying domestic legislation, national courts should now proceed on the basis that Parliament is deemed to have intended that all legislation be compatible with the HRA.
- Where national courts find domestic legislation not to be compatible with the HRA then: (1) if it is secondary, tertiary or quasi legislation, then they have the power to strike it down (2) if its primary legislation (i.e. an Act of Parliament), then a ‘declaration of incompatibility’ can be issued provided that the case is being decided by (a) the House of Lords or (b) Judicial Committee of the Privy Council (c) Court of Appeal (d) High Court. In theory, this declaration should prompt government action, while the Parliament is made aware of the given Act’s incompatibility with one or more rights protected by the HRA.
- All new legislation has to pass a successful human rights test This screening is carried out by the newly established Parliamentary Join Committee of Human Rights. The responsible Minister, when wishing to introduce new or amending legislation he/ she will have to get the approval of this Committee who if not satisfied might send it back for revision.
- The Act makes it unlawful for all public authorities to act incompatibly with the HRA.
- Any individual or group of individuals who believe that their rights have been breached can bring a claim in a domestic court using the HRA. Where a violation is established, then the Act provides procedures for compensation.
It is worth noticing that the HRA does not intend to extinguish existing legal provisions safeguarding human rights in UK law. On the contrary, it introduces the minimum standards protected by the ECHR leaving room for their development and expansion by individual member states. This can be achieved for instance through their case law and interpretation. However, all national courts and tribunals must take into account the case law of the European Court of Human Rights. This rule applies to England, Wales, Scotland and Northern Ireland. In consequence, one of the principal objectives of the HRA was to give national courts as much space as possible to protect human rights, short of powers to set aside Acts of parliament .
UK IMMIGRATION LAW POST THE HUMAN RIGHTS ACT
Both the Articles of the HRA and the ECHR, as well as the case law of the European Court of Human Rights do not provide any guarantee to enter, reside or remain in any of the member states of the Council of Europe. Having said that the Act does protect a number of substantial rights which if they are breached due to a governmental action that involves the entering, residing or remaining of a foreign national into the UK, then there might be grounds for a breach of the Act. These cases will be examined in the following sections of this essay.
Detention pending admission or expulsion is specifically provided for in Article 5 which allows it only where it is ‘lawful’ and follows such procedures as are prescribed in the domestic law of the Council’s member states. The same applies when a decision to admit or extradite a foreign national may come within the ambit of a right protected by the ECHR/ HRA. The following section will look into this impact in detail by investigating the most relevant articles/ rights that are protected by the HRA and may involve four of the most important areas of UK immigration law: (1) admission of foreign nationals into the country (2) extradition of foreign nationals to their country of origin (3) the right of foreign nationals to remain in the country (4) immigration issues involving national security.
THE IMPACT OF ARTICLE 3: FREEDOM FROM TORTURE OR INHUMAN OR DEGRADING TREATMENT AND PUNISHMENT
Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The Article contains an absolute guarantee of the rights it protects and cannot be derogated from not even in time of war or other public emergency . Unlike most other Articles, this one is expressed in unqualified terms. This means that ill-treatment that falls within the terms of the Article can never be permitted, even for the highest reasons of public interest and safety. This will be further explained and analysed particularly in the context of granting entry to foreign nationals who may be deemed dangerous (e.g. for terrorist activities).
In particular, past attempts to justify particular measures that could be deemed to be in breach of Article 3 were overruled by the European Court of Human Rights even though the defendant state based its arguments on the need to protect national security or to suppress terrorism. For example, in Chahal v UK , a foreign national living in the UK was arrested because of his political activities and was going to be deported on the basis of Immigration Act 1971, as his presence in the UK was not deemed to be conducive to the public good for reasons of national security and other reasons of a political nature . As a result of the deportation notice, Chahal was detained until the ruling of the ECHR.
The UK government argued that the guarantee in Article 3 is not absolute and therefore it must be balanced against competing interests such as national security where a state is planning to expel or deport an individual. However, the majority of the European judges explicitly rejected this argument, noting that Article 3 enshrines one of the most important values of a democratic society and contains a guarantee which is absolute in expulsion cases . In other words, the Council and its regional court was telling to its 46 member states that they cannot rely on their national security interests to justify the deportation of foreign nationals where there are grounds to believe that Article 3 will be violated.
This Article extends to additional forms of treatment. In particular, it covers three separate categories of prohibited treatment or punishment. These are: (a) torture (b) inhuman treatment/ punishment and (c) degrading treatment/ punishment. However, as stated in Ireland v UK , in each of these three cases conduct must “attain a minimum level of severity” before Article 3 is deemed to be breached. However, the threshold level is a relative one. As the Court stated: “…it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim …” . In terms of specific guidelines, the Court defined torture as “deliberate inhuman treatment causing very serious and cruel suffering” . Inhuman treatment/ punishment was defined as “treatment/ punishment that causes intense physical and mental suffering” , while degrading treatment/ punishment is one that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance” .
Admission cases
The provisions and rights protected by the HRA apply to everyone who is physically in the country whether legally or illegally. This also extents to foreign nationals who have not technically entered the country and are, for example, held at the airport or nearby centres. Therefore, as it would be expected the regulation of admission cases by UK immigration law had to be adapted to comply with the provisions of the HRA.
In particular, a foreign national cannot be refused entry on the grounds of race. This rule was established in the case East African Asians v UK . There the Commission of the Council of Europe held that discrimination based on race can in certain circumstances amount to degrading treatment within the meaning of Article 3. The Commission said: “… a special importance should be attached to discrimination based on race; that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question” .
A question that follows from this statement is what are the special circumstances that can give rise to a breach of this right. The answer is found in current legislation and case law. In particular, these circumstances are identified in: (a) legislation i.e. the Commonwealth Immigrants Act 1968 (b) the destitution faces by those applicants in East Africa (c) the pledge faced by those applicants in East Africa and finally (d) the manner in which immigration control was affected in the UK i.e. the practice of shuttle cocking people around .
In the case of Lalljee v UK it was established that a quota system introduced for immigration purposes was not of itself degrading. However, if any aggravating features in the cases described above were in place, then the Article could be deemed breached. This was further explained and established in the famous case of Abdulaziz, Cabales and Balhandali v UK . There, three women who were lawfully and permanently settled in the UK claimed that the government was subjecting their husbands to degrading and inhuman treatment because they would not allow them to enter and live with them in the country. This argument, however, was dismissed by the court which stated: “the difference in treatment … did not denote any contempt or lack of respect for the personality of the applicants and its not designed to and did not humiliate or debase them” .
Expulsion cases
Similarly to what happens with admission cases, neither the HRA nor the ECHR provide a right not to be expelled or extradited. In fact, in Chahal v UK the European Court of Human Rights clarified that each member state has the right “to control the entry, residence and expulsion of aliens”. This ruling was confirmed in Altun v Germany , where the Court stated that state parties are free to conclude and carry out extradition agreements.
Nonetheless, where extradition or expulsion may give rise to a violation of Article 3, member states may be found to be in breach of their Conventional rights. This also aplies to the UK and the right established through Article 3 of the HRA. In particular, in the landmark case of Soering v UK , the Court ruled: “… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence, engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country” .
This case involved the extradition of an 18 year old German national who had been requested to be returned to the State of Virginia to face murder chargers. Soering was accused of killing the parents of his girlfriend and although he was deemed mentally unstable he was expected to stand full trial. According to the Virginia criminal law defendants who are found to be guilty of murder may face capital punishment. According to Harris, Boyle and Warbrick, the European Court ruled against the extradition of Soering not so because the imposition of the death penalty per se would result in a breach of Article 3 . In fact, the Court stated that the “manner in which it is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity awaiting execution are examples of factors capable of brining the treatment or punishment received by the condemned person within the prescription under Article 3” .
Put another way, after this landmark decision, and the direct effect of the HRA on domestic courts, UK judges had to take into consideration new elements that were not originally considered when applying UK immigration law to expulsion and extradition cases. Courts now need to check whether the person to be deported or extradited might face in the requesting state any type of treatment that is forbidden by Article 3. This applies even if the requesting state is not signatory to the ECHR.
Harris, Boyle and Warbrick claim that “the rule in the Soering case does not only apply to death penalty cases. Considerations such as the risk of an unfair trial and proportionality must be relevant under Article 3 where a person is returned for trial for a non-capital offence also” . This is confirmed in the Commission’s decision in Altun v FRG . There, it was ruled that it may be ‘inhuman treatment’ to extradite a person for an offence where there is good reason to believe that the extradition process is being abused by the requesting state in order to prosecute him, contrary to the principle of speciality, for a political offence “or even simply because of his or her political opinions” . The Commission explained that the ‘inhuman treatment’ would result in these cases from the risk that the extradition proceedings would lead to an ‘unjustified or disproportionate sentence” .
However, as stated in C v FRG , the mere fact that a deportation or extradition of a person may result in his or her severe sentence, this can not in itself constitute a violation of Article 3, even if that sentence is more severe than the one that the person would have faced in the extraditing country. In the Soering case, the Court made it clear that the basis for liability is that the extraditing state has “taken action which has a direct consequence the exposure of an individual to proscribed ill-treatment” . The Council’s member states can not ignore this rule, which has to be incorporated into their domestic immigration law. Failure to do so would result in their conviction by the European Court of Human Rights. A question that remains unanswered concerns the level of severity of ill treatment feared as a consequence of expulsion so that it falls within the ambit of Article 3. The following section will look into this in detail.
Defining the threshold of the feared ill-treatment
The extraditing state cannot be responsible for the actions taken by the requesting state. More importantly, the Council of Europe cannot impose such an obligation on member states as this would mean direct violation of their national sovereignty. Therefore, the HRA does not provide for such an obligation. As discussed in O’Boyle, when a breach of Article 3 is about to occur, the returning state is “not being held directly responsible for the acts of another state but for the facilitation, through the process of extradition, of a denial of the applicant’s rights by that other state” .
Therefore, the extraditing state before issuing a decision to extradite a foreign national has to establish the level of severity of ill treatment that the extradited person would face. Soering is very helpful in this regard. There, the Court thought that the extradition of Soering would lead to his inhuman/ degrading treatment as he would be subjected to the so called death row phenomenon whereby he had to wait for a number of years and in really bad prison condition for his death penalty. The Court found that this was sufficient to engage Article 3, bearing in mind the following features: (a) the strict and harsh conditions on death row (b) the length of detention pending execution (an average of 6 to 8 years) and (c) the applicant’s age and mental state (Soering was 18 at the time and was thought to have an abnormality of mind).
Furthermore, as stated in X v Germany and X v Sweden , it is not enough that conscientious objectors will be forced to do military service if extradited to the requesting state. In C v Germany and Barar v Sweden , it was clarified that it does not constitute a breach of Article 3 if the extradited individual faces criminal proceedings and/ or long prison sentence even for desertion . However, as defined in A v Switzerland , extradition to a country where a person will face prosecution for a political offence may amount to a breach of Article 3, but only where the threat of prosecution is real and a substantial sentence is likely. This raises another issue, which is the credibility and level assurance that the extraditing state needs to have that ill-treatment that falls within the ambit of Article 3 will indeed happen if extradition takes place.
Criteria when assessing the risk for a breach of Article 3 by the requesting state
In Cruz Varas v Sweden and Vilvarajah v UK , the Court ruled that the mere possibility of the extraditing person facing ill-treatment is not enough to engage state responsibility under Article 3. Therefore, the HRA does not provide a general protection of foreign nationals not to be extradited because there are some fears of being ill-treated. Nonetheless, the absolute nature of the right protected in Article 3 dictates rigorous approach to the assessment of risk. This means that the extraditing state needs to collect all the necessary assurances and safeguards that the extradited person will not be subjected to treatment contrary to Article 3. By “rigorous” it is meant that the extraditing state needs to examine the foreseeable consequences of removal, in light of the general situation in the receiving country and the individuals’ personal circumstances. This was confirmed in Vilvarajah v UK .
Furthermore, as stated in Cruz Varas v Sweden and Hatami v Sweden , the extraditing state needs to bear in mind that many individuals who have been subjected to ill-treatment are apprehensive toward authority that may be afraid to provide information about their case. However, as stated in Vilvarajah v UK, the Court did not consider it enough that there were unsettled political circumstances in the requesting state and that some people were detained or ill-treated. However, the Court did raise the issue of the source of the threat clarifying that this does not need to be governmental.
The source of the threat in the requesting state: governmental or paramilitary
Article 3 of the HRA prohibits the expulsion or extradition of foreign nationals to a state where violation of the Article may occur either by governmental officials or third parties. In HLR v France the applicant argued that if the extraditing state sent him to his country of origin he would be exposed to the risk of reprisals from drug traffickers. The Court’s decision on this matter is summarised in the following statement: “… owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities in the receiving state are not able to obviate the risk by providing appropriate protection” .
In D v UK this principle was reinforced. This case concerned the deportation of a man who was in an advanced state of a terminal and incurable illness to a country where adequate medical facilities were not available. The Court set up the following rule which became applicable in all member states’ immigration law. This principle observed: “It is true that [the principle of non-expulsion] has so far been applied … in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him protection. Aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is therefore not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities in 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 undermine the absolute character of its protection” . This rule was confirmed in Choudry v UK Commission and BB v France .
THE IMPACT OF ARTICLE 2: RIGHT TO LIFE
Article 2 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 …”. The right to life is absolute in its nature and cannot be derogated from in time of war or other public emergency.
However, unlike Article 3, the right to life can be limited in certain circumstances. That is why paragraph two of the Article states: “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more that absolutely necessary. (a) in defence of any person from unlawful violence (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained (c) in action lawfully taken for the purpose of quelling a riot or insurrection”.
Although the impact of this Article on UK immigration law has not been as significant as the effect that Article 3 has had, some issues have been raised particularly in relation to expulsion and extradition. For example, in Bahaddar v Netherlands and Launder v UK , it was ruled that given the fundamental character of the right to life, in principle, there is no reason why state responsibility should not be engaged where expulsion puts an individual’s life at risk. However, it was noted that the threshold will be very high is such cases. In fact, the Commission suggested that the loss of life would have to be a “near certainty” before Article 2 was relevant in expulsion cases.
In the case of D v UK , the applicant raised the right to life, but in light of its findings under Article 3, the Court did not find it necessary to examine the complaint under that provision. This example shows how strict the criteria are when claiming that Article 2 may be breached when a foreign national is extradited or exported.
As stated in Lynas v Switzerland , a member state would be found to be in breach of Article 2 if it deports or extradites a person to another state when “substantial grounds have been shown for believing that the person concerned … faces a real risk” on his return of being killed in circumstances that amount to a breach of Article 2
The rule adopted in Soering in respect of possible breaches of Article 3 resulting from the return of a fugitive offender to another state to face the death row phenomenon also applies so as to engage the returning state’s responsibility for possible breach of Article 2. As stated in Harris, O’Boyle and Warbrick “The rule in the Soering case applies to a real risk of any breach of Article 2 following deportation or extradition, not just one involving the death penalty” .
THE IMPACT OF ARTICLE 5: THE RIGHT TO LIBERTY AND SECURITY OF THE PERSON
The most relevant section of this Article is paragraph (1)(f), which provides that: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases in accordance with the procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. Arrest and detention are defined as extreme forms of restriction upon freedom of movement .
In Winterwerp v Netherlands , the Court confirmed that like all exceptions to Article 5(1), paragraph (f) is to be narrowly construed. This means that when applying this Article to UK immigration law the following pre-conditions of detention need to be taken into account: (a) the individual in question must come within the category defined in paragraph f (b) the basis upon which she or he is detained must be ‘lawful’ and (c) any procedure prescribed in domestic law must be strictly followed.
In the case of Bozano v France the Court pointed out that inherent in the notion of lawfulness is a prohibition on arbitrary action. In particular, Article 5 (1) (f) found to be in breach because the applicant’s arrest and detention was deemed to be “a disguised form of extradition” designed to get round an adverse court decision.
The court also noted that if the prescribed by immigration law proceedings for extradition or deportation are not prosecuted with due diligence, detention will cease to be justified under Article 5 (1) (f). In other words, UK immigration law has to take into account the duration of deportation or extradition to make sure that they are not excessive. Otherwise, the country will be in breach of Article 5. This rule was confirmed in Chahal v UK and Ali v Switzerland .
However, UK immigration law cannot ignore the provision of Article 5 (4), which entitles individuals deprived of their liberty under 5 (1) (f) to review of the legality of their detention. In particular, Article 5 (4) provides that: “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”. In fact, according to Kolumpar v Belgium any considerable delay in these proceedings can be a ground for legal challenge by the individual whose liberty is deprived. On the other hand, according to Zamir v UK , legal aid should always be made available when these proceedings are initiated.
However, in Chahal v UK, the Court noted: “Article 5 (1) (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 (1) (f) provides a different level of protection from Article 5 (1) (c)”. The Court also said: “… Indeed, all that is required under this provision is that action is being taken with a view to deportation. It is therefore immaterial, for the purposes of Article 5 (1) (f), whether the underlying decision to expel can be justified under national or Conventional law” . Therefore, it is unlikely that the legality of detention under Article 5 (1) (f) will be affected by a finding that a deportation or extradition was unlawful, unless it can be proved that the entire proceedings –including the detention – were arbitrary.
THE IMPACT OF ARTICLE 6: THE RIGHT TO A FAIR TRIAL
Paragraph one of Article 6 provides that: “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”. It was therefore questioned whether the expulsion or extradition of a foreign national under UK immigration law would violate Article 6 of HRA if there is substantial evidence to believe that the extradited individual will not enjoy a fair trial in the requesting state.
In Soering v UK , the Court ruled that: “Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention” .
Nonetheless, the Court also said: “The right to a fair trial in criminal proceedings, as embodied in Article 6 holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in a requesting country” . This rule was confirmed in Winterwerp v Netherlands , which involved the grading of entrance to prisoners from abroad.
THE IMPACT OF ARTICLE 8: THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE
The impact of this Article on UK immigration law is more relevant in the context of private and family life rather than the right to home and correspondence. The first paragraph of Article 8 provides that: “Everybody has the right to respect for … family life …”. The second paragraph prohibits interference with this right “except such as 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”.
The right to private and family life has had a major impact on UK immigration law particularly in the context of granting entrance to foreign nationals, leave to remain and extradition or expulsion cases. The factors that are used to determine whether a relationship falls within the ambit of the right to family as this is protected by Article 8 are: (a) whether a couple live together (b) the length of their relationship and (c) whether they have demonstrated their commitment to one another e.g. by having children or by any other means . Family has now been expanded to include same sex couples and co-habitants.
The significant impact that this Article has had on immigration law is highlighted in Abdulaziz, Cabales and Balkandali v UK . There, the Court laid the following principles which are said to have changed member states’ immigration provisions including. These principles include:
(a) In general, there is no obligation under the Convention on member states to admit the family members of those who are within their jurisdiction. Therefore the exclusion of family members from a state party does not constitute in itself a breach of Article 8.
(b) A member state may found to be in breach if it refuses entry to foreign nationals whose family members may be residing in the refusing state and it can be shown that there are real obstacles to establishing family life elsewhere or there are special reasons why the individuals in question should not be expected to do so. These obstacles could include: (1) language difficulties (2) past residence (3) the ability of the parties to adapt to living overseas (4) compelling health, employment or family issues (5) cultural, religious and social practices.
These rules were confirmed in Abegbie v Austria . In Abdulaziz, Cabales and Balkandali the Court ruled that in marriage cases the extent to which the individuals in question were aware of problems of admission and settlement should be relevant in determining whether the right has be breached. The Court clarified, however, that the fact that one family member will lose his or her job is not sufficient to constitute a breach of the Article. The case of X v UK showed that the Article’s protection does not extend to family members who have to leave a business, while Akhtar v UK showed that the protection of the Article does not extend to family member who might be ill. However, according to Adegbie v Austria , the protection of Article 8 can extend to family members who have no family or prior connection elsewhere.
The impact of Article 8 is equally significant in terms of immigration rules governing expulsion cases. This is particularly relevant when the extradited or expulsed foreign national has been a resident in the country for a considerable period. It has to be said that there is no general principle under the HRA that prevents expulsion merely because family life will be disrupted. Such a prohibition would come in direct conflict with the country’s sovereignty.
However, UK immigration law regulating expulsion and extradition has to pursue one of the aims set out in the second paragraph of Article 8. Expulsion provisions also need to be proportionate and this can be defined taking into account the following criteria that have been defined through case law:
(a) the applicant’s ties with the deporting state;
(b) the reason for expulsion;
(c) the extent of the disruption of the applicant’s family life;
(d) if there are real obstacles to establishing family life elsewhere;
(e) in criminal cases, the gravity of the offence in respect of which deportation was ordered and the applicant’s criminal record.
In Bounghaneni v France , it was ruled that foreign nationals who have been living in a country for a long time could only be deported in very exceptional circumstances and only when they have committed very serious offences . In fact, in Moustaguim v Belgium , the Court decided that the deportation of a foreign national who had lived in Belgium since the age of one was not justified and that the fact that the applicant’s parents and siblings lived in Belgium was sufficient to establish family life. This rule was later confirmed in Beldjoudi v France and Lamguindaz v UK .
Furthermore, a foreign national who appeared to be dependant on his family members due to his frailty and health problems and had no ties with the requesting state could not be deported even though he had committed serious crimes. This decision was taken in Narsi v France , and introduced the principle that no matter the seriousness of the crime, if a foreign national is dependant on his family who is living in the deporting country and has no other links in the requesting state, then his deportation or expulsion will amount to a breach of Article 8.
In addition, Article 8 has had a significant impact on immigration regulations on the deportation of children to their countries of origin when they have no one to take care of them. In Taspinar v Netherlands and Bulus v Sweden the Commission ruled that it is inhuman to expel children to a country where there is no one to care for them on arrival. The same applies when a foreign national is expelled or extradited and his or her children are in the custody of the other parent. In this case, the disruption to family life may be deemed disproportionate and therefore a breach of Article 8 may arise . However, in Jaramillo v UK and Sorabjee v UK , it was ruled that the expulsion of a parent with custody of young children will not necessarily be in violation of the right to family life, if the children are in “an adaptable age”, even where they are British citizens.
THE IMPACT OF ARTICLE 14: FREEDOM FROM DISCRIMINATION IN RESPECT OF PROTECTED RIGHTS
The right protected by Article 14 of the HRA is not free standing as it exists only within the context of one of the other substantial rights. The Article provides that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
This prohibition is particularly relevant to the regulation, application and application of immigration law as it applies to asylum and immigration applications, extradition and deportation rules, regulations and decisions. However, the Article does not provide a generally applicable right to freedom from discrimination.
Although Article 14 can be invoked only in relation to one of the other rights set out in Article 2-12 of the HRA, no breach of these Articles need to be established. As stated in Rasmussen v Denmark , the ultimate test is whether the facts in issue “fall within the ambit” of one or more of the other Convention provisions.
As stated in Gaysgusuz v Austria , a breach of Article 14 may occur when a particular treatment “has no objective and reasonable justification” that is, it does not pursue a “legitimate aim, or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised” .
In Abdulaziz, Cabales and Balkandali, the Court noted: “Most immigration policies – restricting as they do free entry – differentiate on the basis of people’s nationality, and indirectly their race, ethnic origin and possibly their colour”. This dissolved previous assumptions that used to exist within UK immigration law which did not apply anti-discrimination regulations in admission and expulsion cases. This rule was confirmed in Moustaquim v Belgium where the court said that a member state cannot implement “policies of a purely racist nature”. However, the Court said that it does not constitute breach of Article 14 the preferential treatment of a member state to its nationals or to persons from countries with which it had the closest links.
Finally, in Van Raalte v Netherlands the court dissolve the old assumption of UK immigration law which allowed discrimination on the grounds of sex. In this case the court found a violation of Article 14 in conjunction with Article 8 ruling that although in principle it was legitimate to restrict the admission of non-national spouses to the UK, it was not legitimate to distinguish between the non national spouses of males and the non-national spouses of females.
THE IMPACT OF THE HUMAN RIGHTS ACT 1998 ON THE REGULATION OF IMMIGRATION ISSUES AFFECTING NATIONAL SECURITY AND SAFETY
Since the tragic events of September 11 and the more recent terrorist attacks in London, there have been intense debates on whether the extensive impact of the HRA on immigration law should be revisited to reflect the realities of these atrocities. This might even mean that the principle of non-expulsion where there is a risk of a breach of Article 3 should be applied differently where it is a matter of national security. This view is gradually becoming more and more popular despite the absolute nature of the prohibition of this Article.
The case of Chahal v UK is helpful. There, the applicant was going to be deported as his presence in the UK was deemed to be unconductive to the public good for reasons of national security. The government explained to the Court that it believed that Article 3 had an implied limitation which entitled states to expel an individual even where a real risk of ill-treatment existed, if such removal were required on national security grounds. The UK government also argued that the risk to the individual was one factor to be taken into account in such cases but not the determining one.
The Court’s decision on this matter is groundbreaking and it establishes a general rule, which has a considerable impact on the country’s immigration law and deportation procedures and regulations. The Court said that they are “well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence” but “… even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct…” .
Therefore, the Court made it clear that there is no room for balancing the risk of ill treatment against the reasons for expulsion in determining whether a state’s responsibility under Article 3 is engaged. This, however, might not apply when other non absolute Articles are involved.
However, on the 5th of August 2005, the UK Prime Minister said: “Over the past two weeks there have been intensive meetings and discussions across government to set a comprehensive framework for action in dealing with the terrorist threat in Britain, and today I want to give our preliminary assessment of the measures we need urgently to examine … The circumstances of our national security have self evidently changed, and we believe we can get the necessary assurances from the countries to which we will return the deportees against their being subject to torture or ill treatment contrary to Article 3 … It is important to test anew now in view of the changed conditions in Britain. Should legal obstacles arise, we will legislate further including if necessary amending the HRA in respect of the interpretation of the ECHR” .
CONCLUSION
The HRA has had a major impact on the country’s immigration law and policy. Domestic courts (the judiciary), governmental and public bodies (the executive) and the Parliament (the legislative), all have to take into account the provisions provided in this Act. Since its introduction, the rules on granting entrance to foreign nationals, deportation and extradition procedures and the regulations on issuing leave to remain and stay have all been affected by the rights protected in this Act.
This essay has examined the impact of the most relevant articles of this Act, taking into consideration the case law of the European Court of Human Rights and the jurisprudence of domestic judicial authorities. This discussion is very timely as the recent terrorist events in London are leading the government to believe that a revision of these changes might be needed so that the governmental machinery responds more promptly and more effectively to the nature of these atrocities and attacks.
There can be no doubt that the impact of the HRA has been considerable and that the effect it had on people’s lives has been immense as it sets up the minimum standards that need to be respected. This has been a long term process which has been carefully weighted against different cultural, societal, economic, political and other factors. While the impact of the Human Rights Act has so far been decided by judicial bodies in a manner that respects the principles of legality and democracy, procedures are now been planned to reverse this impact using political procedures in the name of national security.
BIBLIOGRAPHY
Blair Tony (2005) PM’s Conference 5 August 2005
Harris D. J., O’Boyle W and Warbrick C (1995) Law of the European Convention on Human Rights, London: Butterworths
Home Office (1997) Bring Rights Home, London: Home Office
O’Boyle in O’Reilly, ed Human Rights and Constitutional Law, 1992, p. 97.
Partington Martin (2004) An introduction to the English legal system, 2nd edition, Oxford: Oxford University Press.
Tomkins Adam (2001), “Introduction: On being sceptical about human rights” in Sceptical Essays on Human Rights, edited by Campbell T, Ewing K and Tmkins A, Oxford: Oxford University Press.
United Kingdom Parliament (1997) Hansards: Human Rights Bill (HL) 3 Nov 1997 : column 1228.
Wadham, John, Mountfield, Helen. (2000) Blackstone's guide to the Human Rights Act 1998 (2nd ed). London: Blackstone Press.
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