The European Convention on Human Rights (ECHR) is a familiar weapon in the armoury of most immigration lawyers: successful challenges in immigration cases have been brought under the ECHR for many years.

Nevertheless, the Human Rights Act 1998, which incorporates the ECHR into UK law, presents a major shift in the way in which decision-makers (including the Home Office, the Immigration Service and the Immigration Appellate Authority) have to approach decision-making.As Jonathan Cooper of Justice has put it, decision-makers will no longer merely be able to ask 'does the law permit me to take this action?', followed by 'am I following the right procedures in making this decision?', and finally 'is the decision I am about to make so perverse that nobody else would or could reach such a decision?'.

Now, the decision-maker will also have to ask: 'Are an individual's human rights involved, and if so, can I legitimately interfere with them?' (Jonathan Cooper, The Convention: a new way of thinking, paper delivered at the Human Rights Act and Immigration and Asylum Law seminar, 3 December 1999, Justice and Two Garden Court Chambers)As well as this shift in the manner of decision-making, immigration practitioners also have to come to grips with the most significant changes in the immigration appeals system since its inception.

As the Human Rights Act comes into effect, s.65 of the Immigration and Asylum Act 1999 will also come into force.

This provides a right of appeal on human rights grounds in immigration and asylum cases.Obviously, many asylum cases will raise human rights issues, but s.65 will also apply to overstayers (who at the same time will lose their current appeal rights under s.15 of the Immigration Act 1971) and to illegal entrants.

In effect, the distinction between illegal entrants and overstayers will be removed.Practitioners will need to be alert to potential human rights arguments and to plead them both in representations to the Home Office and in immigration appeals.Probably the most fruitful areas for exploration by immigration lawyers will be in the context of asylum and others at risk, and in cases involving families.ASYLUMMost asylum cases will involve a potential breach of Article 3 which prohibits torture, and inhuman and degrading treatment or punishment.

No derogation from or exception to this article is permitted.In Ireland v UK ((1979-80)2 EHRR 25), the European Court of Human Rights in Strasbourg gave guidance as to the meaning of each of these elements: torture is defined as deliberate inhuman treatment causing very serious and cruel suffering; inhuman treatment or punishment is treatment that causes intense physical and mental suffering; and degrading treatment or punishment is treatment 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 (see Keir Starmer, European Human Rights Law, LAG 1999 pp 506-507).The definition is different from that of persecution in asylum, where a successful applicant must demonstrate a well-founded fear of persecution for one of five grounds: race, religion, nationality, membership of a particular social group or political opinion.In the ECHR, there is no need to demonstrate that the mistreatment was due to an individual being a member of a particular social, political, ethnic or other group.In one of the earliest immigration cases taken against the UK (that of the East African Asians), the Commission held that serious discrimination on grounds of race can amount to degrading treatment within the meaning of Article 3 (see East African Asians v UK (1981) 3 EHRR 76; Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471; in Smith & Grady v UK the court confirmed that discrimination may violate Article 3 in certain circumstances).

This encompasses serious discrimination on other grounds, such as sex or, potentially, sexual orientation.The refugee definition has been interpreted with increasing narrowness in the UK courts, most recently in the House of Lords case of Horvath v Secretary of State for the Home Department (6 July 2000).

In the UK, the Refugee Convention has been held not to cover those fleeing civil war (Adan (1998) INLR 325) or severe racially discriminatory mistreatment at the hands of non-state agents, where the state cannot provide protection (Horvath).By contrast, the state's responsibilities under the the ECHR are engaged even where the threat of treatment contrary to Article 3 in the receiving state emanates from non-state agents (HLR v France (1997) 26 EHRR 248).

This makes the use of Article 3 even more esse ntial, as if individuals were to be returned home in these circumstances, it would be a clear breach of Article 3.

In extreme cases, Article 3 could be violated by sending a gravely ill person to a country where there is no adequate health provision (D v UK (1997) 24 EHRR 423).A further distinction from the Refugee Convention is that once an Article 3 risk has been shown, there is a total prohibition on the state returning an individual.

The state is not allowed to take into account any balancing issues, such as the risk to public order or the individual's immigration history (see Chahal v UK (1997) 23 EHRR 413).

In contrast, an otherwise well-founded applicant can be excluded from the protection of the Refugee Convention on a number of grounds.FAMILY CASESArticle 8 guarantees the right to respect for private and family life and is of particular use in cases of deportation or removal and family reunion.The first question that arises is whether there is a family unit worthy of protection.

The family clearly encompasses the conventional married family, but extends to relationships between parents and dependent children.A divorced father, for example, who is not living with his children, can nevertheless be said to have a family life worthy of protection (Berrehab v Netherlands (1989) 11 EHRR 322).

The Strasbourg court has also found a 'family' in the case of a long-term unmarried and cohabiting couple with a child (Kroon v Netherlands (1989) 11 EHRR 263).

Conversely, and somewhat out of step with developments in the UK, gay and lesbian couples have not been found to have a family life, instead raising issues of private life, which attract a lower level of protection (see X and Y v UK (1983) 32 DR 220 and regarding transsexuals, X, Y and Z v UK (1997) 24 EHRR 143).

It is likely that this will attract a challenge under Article 14, which prohibits discrimination.In contrast to Article 3, Article 8 rights are not absolute: the state can justify a breach under Article 8(2), where this is necessary for the prevention of disorder or crime.

In applying this test, the principle of proportionality applies, and the decision-maker will take into account an individual's immigration history as well as other public order or criminal considerations.

The decision-maker should also consider the extent to which family life will be ruptured and the possibility of carrying out family life elsewhere.DETENTIONThe right to liberty enshrined in Article 5 has resulted in significant changes in the rights of Immigration Act detainees.

The fundamental legislation on which immigration law is built (the Immigration Act 1971) contains extensive powers to arrest and detain for an unlimited period.

These powers were extended in the Immigration and Asylum Act 1999.The 1971 Act had little in the way of protection for Immigration Act detainees and although the Asylum and Immigration Act 1996 extended the right to apply for bail to most detainees, there was no presumption in favour of bail.

In a clear attempt to head off applications under Article 5 of the ECHR, s.44 of the 1999 Act provides for a system of routine bail hearings and s.46 for a general presumption in favour of bail.The date for the introduction of this part of the 1999 Act has been postponed, and it remains to be seen if in practice the new system will comply with the right to judicial review of detention as set out in Article 5 (4).

The requirements are:-- the power to detain must be clear, precise and foreseeable;-- there must be adequate safeguards against arbitrary detention;-- proper reasons for detention must be given;-- there should be a presumption of liberty and the burden of proving that continued detention is lawful must be on the authorities; and-- there must be a speedy and effective right of review, with legal assistance where necessary.DISCRIMINATIONThe concept of discrimination in the ECHR is different from that in domestic law relating to sex and race: Article 14 prohibits the treatment of people differently where this is not justified.

The prohibition on discrimination contained in Article 14 is not a free-standing right; it can only be engaged in relation to another Convention right.

However, even if the substantive right is found not to have been violated, Article 14 can still be infringed.An example is the Abdulaziz case (see above) concerning the refusal of entry to foreign husbands of women settled in the UK.

Men in an identical position were entitled to sponsor their wives to join them.

This was held to be a violation not of Article 8 (the right to family life) but of Articles 8 and 14 together.

The government dealt with this finding by removing the right of entry to wives as well as husbands, thus removing the element of discrimination.The prohibition on discrimination may be useful in protecting women asylum seekers, who may receive less favourable treatment than men in, for example, the failure to provide female interpreters or interviewing officers, or in dispersal and support arrangements, which may impact more severely on women, especially those with dependent children.THE IMMIGRATION APPELLATE AUTHORITYThe main uncharted area in immigration and asylum law and the Human Rights Act will be its impact on the Immigration Appellate Authority.

The authority is a public body and its decisions will be liable to attack on human rights grounds.

To date, the Strasbourg court has considered that immigration rights do not raise issues under Article 6, the right to a fair trial -- however this may shortly be reconsidered.This is likely to be just one of the areas that immigration practitioners will be able to exploit after the Act comes into force on 2 October 2000.

The challenge will be to identify those cases where it can be used creatively.