Immigration law

Breach of article 3Secretary of State v Klodian Kacaj CC/2304/2000 STARRED IAT 19 July 2001 (Immigration Law Update, Volume 4, No 15, 2 September 2001)Ms Kacaj arrived in the UK on 12 November 2000 and claimed asylum the following day.

She was refused and was not permitted to remain despite her claim that to remove her would constitute a breach of human rights under the European Convention on Human Rights (ECHR).Her asylum appeal was dismissed on 5 January 2001.

Her appeal under section 65 of the Immigration and Asylum Act 1999 on the grounds that her removal would constitute a breach of article 3 of the ECHR was allowed.

The Home Secretary was granted leave to appeal.

Ms Kacaj was refused leave to appeal against the dismissal of her asylum appeal but was granted leave to appeal against the dismissal of her assertions that there had been a breach of articles 4 and 8 of the ECHR.

The case raised three important issues:l What is the correct standard of proof to be applied in deciding whether to return an applicant to a country where it is alleged that his human rights, particularly under article 3, would be breached?l Can there be a breach of the ECHR and in particular of article 3 where the treatment which may result if the removal takes place is by non-state actors? Does the approach adopted by the House of Lords in Horvath [2000] 3 WLR 379 to the Refugee Convention apply equally to the ECHR or are there differences?l Does any article of the ECHR other than article 3 have 'extra-territorial' effect, that is, can any other article be relied upon where the breach complained of will or may occur outside the jurisdiction of the UK?Standard of proofThe Court of Appeal confirmed the test set out in Soering v United Kingdom (1989) 11 EHRR 439, paragraph 91 - have substantial grounds been shown for believing that the person concerned, if extradited (or deported) faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the requesting (or receiving) country? The test formulated by the European court requires the decision maker and appellate body to ask whether there are substantial grounds for believing the applicant faces a real risk of relevant ill treatment.

It is no different from the test applicable to asylum claims.

The standard may be relatively low, but it is for the applicant to establish his claim.Non-state actorsThe Court of Appeal held there is no doubt that the obligations of a state which is intending to deport an individual can extend to the need to protect him against relevant ill-treatment by non-state actors.

In deportation cases there will rarely be a direct responsibility of the expelling state for the infliction of harm although the court did not rule out the possibility that the act of removal may contravene article 3 having regard to the physical or mental condition of the individual being expelled.

Persecution and breaches of article 3 are not necessarily the same.

They did not read Horvath as deciding there would be sufficient protection when the authorities in the receiving state are doing their best.

If their best can be shown to be ineffective, it may be that the applicant will have established there is an inability to provide the necessary protection.

But the fact that the system may break down because of incompetence or venality of individual officers is generally not to be treated as establishing unwillingness or inability to provide protection.

Extra-territorialityThe Court of Appeal rejected the argument that only article 3 had extra-territorial effect.

There is no question of extra-territorial effect in the true sense of the word.

The breach, if any, will have occurred within the jurisdiction by the decision to remove which will have the effect of exposing the individual to whatever violation of his human rights is in issue.

The court held that in their view rights may be engaged but legitimate immigration control will almost certainly mean that derogation from those rights will be proper and not disproportionate.

This case is important in setting out the standard of proof required for article 3 cases and the issue of extra-territoriality.

One hopes that in future the Home Secretary will not attempt to dismiss human rights arguments on the basis that the alleged breach does not occur within the jurisdiction.DetentionR (on the application of Saadi & ors) v Secretary of State for the Home Department 19 October 2001 CAThe applicants were Kurdish asylum seekers from Iraq, detained at Oakington Reception Centre for up to ten days while interviews and inquiries were conducted.

They were then released.

They challenged the legality of the detention.

The Home Secretary's case was that detention was necessary if the expedition of processing asylum claims that would result in resolving them within a week was to be achieved.

Mr Justice Collins held the detention to be unlawful because detention for the sole purpose of effecting a speedy determination of applications was not permitted by article 5(1)(f) of the ECHR.

Once an applicant had made a proper asylum application and if there was no risk that he would abscond, he was not being detained to prevent his effecting an unauthorised entry into the country within article 5(1)(f).Furthermore, if the detention was within article 5(1)(f) it was disproportionate.

The Home Secretary appealed.

The issues were: whether the applicants' detention was lawful as a matter of domestic law; and whether the detention was lawful under the convention.

Held, (allowing the appeal): l As a matter of domestic law detention fell within the power conferred on immigration officers by the 1971 Act.

The purpose of the power to detain was not solely to conduct the examination of the asylum seeker.

It was conferred 'pending' examination and the decision to give or refuse leave to enter.

It was to prevent a person entering without leave.

The detention had to be for a reasonable time, but it was not the policy to detain pending a decision on an application; however long that might take.

Mr Justice Collins was right that it could not be said that 7 to 10 days was an excessive period to consider an application for asylum.

Mr Justice Collins did not decide whether it was necessary to detain applicants in order to consider their applications with the desired expedition.

If it was not necessary to detain in order to effect speedy processing of applications, then the decision to detain for that purpose would be irrational.

The policy of subjecting those asylum seekers whose applications appeared susceptible to rapid resolution to a short period of detention designed to ensure the efficient operation of that regime was not irrational.

The criteria governing selection of those who were sent to Oakington were clear and rational and not arbitrary.

l The framers of the ECHR intended the exception to the right to liberty in article 5(1)(f) to preserve the right of member states to decide whether to allow aliens to enter their territories on any terms.

The right to detain was subject to the process not being unduly prolonged; it did not have to be justified by the need to prevent absconding or other misbehaviour.

It was in relation to the duration of detention that the question of proportionality arose.Mr Justice Collins was wrong to hold that detention was not proportionate because it was not necessary to achieve the object of processing applicants speedily.

The test of proportionality required by article 5(1)(f) was simply whether the process of considering an asylum application had gone on too long to justify the detention.

Applying that test there was no disproportionality in this case.

A disappointing judgment on the interpretation of article 5(1)(f).

It is doubtful, in practical terms whether the saving of a few days in the submission of a statement actually speeds up the consideration of an asylum claim.

Subsequent statistics may reveal whether this is in fact correct.

By Jane Coker, Coker Vis Partnership, London