Chapter 4

4.3.1 Who may make a human rights claim?

The House of Lords in Beoku-Betts v SSHD [2008] UKHL 39 held that:

To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed. (para 4 Baroness Hale)

The rights of other family members could be considered on an appeal based on Article 8. This was consistent with the one-stop appeal regime introduced by the Immigration and Asylum Act 1999 and with the approach of the court in Strasbourg. The parties agreed that the Secretary of State in making decisions was obliged to have regard to the family rights of other family members. This point, in dispute at least since Kehinde, is now settled.

4.3.3 Geographical scope – expulsions

In the House of Lords the decision of the Court of Appeal in EM (Lebanon) was reversed(EM (Lebanon) v SSHD [2008] UKHL 64). Their Lordships held that where the appellant claimed a breach of qualified rights abroad, the question was whether the treatment she feared would constitute a flagrant breach so as to amount to a nullification or destruction of the very essence of the right. This was a single question, and there was no distinction to be made between a flagrant breach and a complete denial of the right.

They said that in the absence of exceptional circumstances an appellant could not claim entitlement to remain in the UK to escape the discriminatory effects of family law in their country of origin. However, the exceptional circumstances were present here. The appellant’s son had never had any contact with his father except when he was born and his father came to try to take him to Saudi Arabia but was prevented. All he knew of him was as someone who had inflicted serious violence on his mother before he was born. There would be no opportunity in Lebanon for the appellant to oppose the transfer of custody. There was a close relationship between mother and son and a real risk that the mother would not be permitted any contact with her son at all. Consequently the removal of the mother and son to Lebanon would breach their article 8 rights. There was a flagrant denial of their right to respect for their family life because the mother would not have any opportunity to oppose the award of custody to the father.

The decision inevitably entails a reflection on Sharia law as applied in Lebanon, though Baroness Hale and Lord Bingham were careful to say that their decision was not a judgment on Sharia law. The appellant claimed under Article 14 as well as Article 8. Their Lordships referred to the discriminatory nature of the system, which was what resulted in the appellant having no opportunity to make her case and resulted in the breach of Article 8, but made no explicit finding on Article 14.

When the cases of RB, U and Mr Othman (Abu Qatada) reached the House of Lords (RB (Algeria) v SSHD; OO (Jordan) v SSHD [2009] UKHL 10) they confirmed that the flagrant breach standard applies to the UK’s responsibility to protect against the risk of violation of Articles 5 and 6 abroad. They held that Mr. Othman was unlikely to be detained without trial for the legal maximum of 50 days in Jordan, but even if he was, this was not a flagrant or fundamental breach of Article 5. The risk that evidence used against him in trial had been obtained by torture did not amount to a flagrant or fundamental breach of Article 6. The Court of Appeal had set too high a standard in saying that the Secretary of State would need to be satisfied that evidence had not been obtained by torture in order to return him.

4.3.4 Geographical scope – entry decisions

The House of Lords in Chikwamba v SSHD [2008] UKHL 40 based their decision on the expectation that if the appellant were required to leave the UK and apply for entry clearance to join her spouse, she would have a right of appeal under Article 8 against a refusal. This basis for this seems to have been unquestioned. They point to the duty of entry clearance officers in the immigration rules to act in accordance with human rights and appear to regard it as beyond doubt that Article 8 may be relied upon by applicants from abroad.

4.4.1 Article 3

4.4.1.2 Inadequate medical treatment

The ECtHR by a majority of 14 to three confirmed the House of Lords decision in N v SSHD (N v UK Application no. 26565/05 Grand Chamber 27th May 2008). They considered that Article 3 usually only applied to intentional acts or omission of a State or non-State body. In medical cases, Article 3 applied only in very exceptional circumstances. The Convention was essentially directed to the protection of civil and political rights, and a fair balance between the interests of the community and the rights of the individual was inherent in the Convention. Article 3 could not be relied upon to address the disparity in medical care between Contracting States and an applicant’s state of origin.

In RS (Zimbabwe) v SSHD [2008] EWCA Civ 839 the Court observed that Article 3 jurisprudence had developed along two tracks, that in N v UK and that in Saadi v Italy. It was not impossible for both tracks to be engaged in one case. That might be so in the present case in which the appellant claimed that her access to health care would be impeded, not only by the general circumstances of lack of resources, but also by political interference on account of her opposition to the government. The Court of Appeal remitted the case to the tribunal to determine whether on, the facts, that was the case.

4.4.1.3 Absolute right under challenge

Ramzy v Netherlands was overtaken by Saadi v Italy Application no. 37201/06. In this case Italy wanted to deport the applicant to Tunisia where he would face a risk of torture. They gave evidence that he was a risk to national security. As in the Ramzy case, the UK intervened to support the Italian government’s argument that an expelling state should be able to balance the risk to its society against the risk to the deportee. The ECtHR disagreed. The court held unanimously that the protection of Article 3 against torture was absolute and fundamental in a democratic society. The fact that the feared ill treatment would take place abroad did not prevent the responsibility of the contracting state from being engaged nor did it affect the standard of proof. In attempting to deal with the threat of terrorism, states were not permitted to weigh any threat to the security of the host state against the risk of torture in the destination state. These two risks were of different kinds.

There have been a number of decisions concerning memoranda of understanding. In AS & DD (Libya) v SSHD, Liberty intervening [2008] EWCA Civ 289 the Court of Appeal held that in a challenge to deportation where assurances had been given (memoranda of understanding) that the deportee would not be subjected to treatment contrary to Article 3 in the receiving country, it was still a matter for the tribunal to assess the risk of such ill-treatment. In making that assessment they would need to evaluate the protection offered by memoranda of understanding, and this would involve an element of future speculation about whether the MOU would be adhered to. In this case SIAC had found that Libya signed the MOU in good faith, but assurances would be honoured when Colonel Qadhafi or his regime considered it was in their interests to do so. Colonel Qadhafi’s assessment of his interests was unpredictable, and, based on past conduct, he might at times act in ways that the outside world thought damaged his long term interests, but which he would assess according to a different priority. The Court of Appeal approved this approach by SIAC, taking an approach similar to that of the ECtHR on this point in Saadi v Italy.

In RB (Algeria) v SSHD; OO (Jordan) v SSHD [2009] UKHL 10 the House of Lords held that SIAC’s assessment of whether the memoranda of understand provided sufficient assurance against torture was a question of fact. The Court of Appeal had been wrong to overturn that assessment unless it could be shown to have been irrational, which it was not. Accordingly the House of Lords also did not consider the safety of the memoranda of understanding, but restored the decision of SIAC, which had accepted that they gave adequate safeguards.

The UK’s practice of sending people back to countries with proven records of torture on the basis of diplomatic assurances was strongly criticised by Thomas Hammarberg, the Commissioner for Human Rights of the Council of Europe, in a report following his visit to the UK in 2008 (CommDH(2008)23 Strasbourg, 18th September 2008).

In Al-Sirri v SSHD [2009] EWCA Civ 222 the Court of Appeal held that it was wrong to admit evidence which had probably been obtained by torture.

4.4.3 Article 6

The position that Article 6 is not engaged in immigration matters continues to be applied in a range of situations. In RB, U & OO the House of Lords held that Article 6 was not engaged in a challenge before SIAC to a decision to deport. The appellants had argued that the fact that other rights were at stake should mean that Article 6 was engaged, because the fairness of the trial was all the more important in such a case. The House of Lords disagreed, and held that the fact other rights were at stake did not bring Article 6 into play.

4.4.4 Article 8

Family life
The House of Lords in Beoku-Betts, as mentioned above, said that the central point about family life, was that the whole is greater than the sum of its individual parts, and reiterated the importance of family life as stated in Huang and Kashmiri.

Private life
An ongoing question in immigration cases is whether private life can be said to exist simply by virtue of time spent in the country, and all the relationships and incidental connections that arise simply by living in a place for a length of time. In Maslov v Austria application 1638/03 the European Court of Human Rights held that ‘the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8’. The applicant was a Bulgarian national who had moved to Austria aged six, and had committed numerous offences between the ages of 14 and 15 years. After his release from prison he had ceased offending, but was deported some 17 months later.

Proportionality
In Maslov v Austria (above) the Court said that ‘very serious reasons’ were required to justify the expulsion of a settled migrant who had lawfully spent their youth in the expelling country. The fact that he was a young person was also relevant. The Court referred to the Citizens Directive, which is part of the law of the European Community (see chapter 6), which requires Member States to have regard to the best interests of the child.

Delay
The relevance of delay has now been considered by the House of Lords in EB Kosovo v SSHD [2008] UKHL 41. They said that delay might be relevant in three ways:

First, the applicant might develop closer personal and social ties and establish deeper roots in the community
Second, the tentativeness with which a relationship may start, if both partners are aware that one has an insecure immigration status, will naturally fade with the passage of time
Third, it may reduce the weight otherwise to be accorded to the requirements of firm and fair immigration control if the delay is shown to be the result of a dysfunctional system. (Lord Brown disagreed with the third point).

Alternative application for entry clearance
The House of Lords in Chikwamba said that in family cases involving children only comparatively rarely should an article 8 appeal be dismissed on the basis that it would be proportionate for the appellant to apply for leave from abroad. The rationale behind the Home Office policy of routinely requiring appellants to apply from abroad was to deter others from entering without entry clearance. This could be a legitimate objective and in certain cases could be the right course of action, but only when relevant considerations in the particular case made it so. In that case it was not proportionate to expect the appellant to return to Zimbabwe with her young daughter and to wait there for an application to be dealt with.

4.4.6 Other derogable rights

In R (on the application of Baiai and Trzcinska) v SSHD [2008] UKHL 53 the House of Lords held that the certificate of approval scheme for marriages breached Article 12 as it was conducted, but that section 19 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was not incompatible with the Human Rights Act because a scheme to prevent sham marriages was in principle legitimate, and with amendments could be conducted lawfully.

Reading List

Clayton, G. (2008) ‘Section 3 of the Human Rights Act and the Immigration Rules’ Immigration Law Digest Vol. 14 no. 1 Spring 2008 pp. 7-13
Clayton, G. (2008) ‘N v UK: Not a truly exceptional case?’ Immigration Law Digest Vol. 14 no. 3 Autumn 2008
Macdonald, Ian QC (2008) ECHR Article 8: Brining UK Courts back in Step with Strasbourg Journal of Immigration Asylum and Nationality Law vol. 22 no.4 pp. 293-302
Macklin, A. (2008) From Cooperation, to Complicity, to Compensation: The War on Terror, Extraordinary Rendition, and the Cost of Torture,’ European Journal of Migration and Law Vol. 10 no. 1 pp. 11 - 30
McKee, R. ‘Deference deferred: Article appeals – recent House of Lords decisions’ ’ Immigration Law Digest Vol. 14 no. 2 Summer 2008 pp. 8 -15
Sikuta, Jan ‘Threats of Terrorism and the European Court of Human Rights’ European Journal of Migration and Law Vol. 10 no. 1 pp. 1-10

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Oxford University Press, Online Resource Centre, Chapter 4.