¶ … Obligations
The status of aliens in a Contracting State is one in which the EU has spent much time and energy attempting to clarify. At the root of the issue is the question of whether the State has sovereignty (and can thus determine for itself what services aliens are provided) or whether the EU holds sovereignty over the State (thus granting rights to aliens within the State). Yet in spite of all the clarifications issued by the ECHR, the issue is far from settled. Indeed, recent court case suggest as much. As Freeman, Hawkes and Bennett (2014) indicate, the "Court's approach in N. v United Kingdom undermines the level of protection that the ECHR may afford "aliens without a right to stay" in the field of health care" (p. 158). This undermining is a direct result of the conflict between member States of the EU and the ruling members of the EU itself. The issue of sovereignty is what is at stake -- and this is manifest in the status of aliens without the right to stay.
Article 3: Definition
Article 3 of the ECHR concerns the probation of torture outlaws "inhuman or degrading treatment or punishment" for all persons (European Convention on Human Rights, 2010). The article has been used in the defense of Jeremy Bamber who successfully appealed his whole life sentence as an inhuman punishment which contravened Article 3 of the ECHR in the UK (Casciani, 2013). In this case the European Council of Human Rights in Strasbourg voted 16-1 in favor of Bamber, who argued that his human rights were violated by UK's life sentences. The decision by Strasbourg, however, only means that the UK must review its policy: it offers no guarantee that the policy will be reversed -- and one can see that here, again, the issue is one of sovereignty. At the same time, there is a question of "fair balance," for as interpretations of Article 3 are made, application is something that must be considered.
Article 3: Interpretation
The "fair balance" principle that the ECHR has inspired is one that makes many believe that Article 3 is more inclusive than the actual text implies, and other Articles have been used in such a way as to signify that the actual terms and conditions are much looser than a rigid by the book definition and implementation would propose (Thym, 2008). And as Battjes (2008) asserts, the problem with allowing Article 3 to realize a more "inclusive interpretation" is that there are unintended consequences for the State, as in "overbearing costs" in cases where the Article would be applied to things like free health care for aliens without a right to stay.
In the case of providing free health care to aliens without a right to stay, Article 3 is said to be non-applicable by the ECHR because the "cost" of implementation would be overbearing for the State. This arbitrary assertion appears to be a caveat to the States, but at the same time it highlights the fundamental and problematic nature of Strasbourg jurisprudence in conflict with State law and sovereignty. And the case of N. v UK (2008) illustrates this conflict. N was a woman from Uganda diagnosed with HIV applying for health care in the UK. The case was said to be similar to D. v UK (1997), though the court found that there were distinctions, namely that whereas D. had no family nor any avenue to medical treatment in the country of his origin, N did. The dissenting opinion of the court disagreed with this decision, however, emphasizing that even among the judges of the State there is less clarity than one would like regarding ECHR. In the case of N, it is not a question of overbearing costs to the State but rather that the State views N. As capable of receiving care in her own country and therefore not in need of support in the UK. Thus, the State becomes something of a care-giver of last resort, according to the decision handed down in this case.
Article 3: Problems
The dissenting opinion in N. v UK (2008) cites Airey v Ireland (1979) and the majority's misapplication of this decision, which suggested that there is a degree of social responsibility on the part of the State, as there is no clear division between civil and political protections in the ECHR. In courts (both Strasbourg and State) should be "rigorous" in their examination of appeals, it is ultimately the appellant who must show that he or she risks inhumane treatment should he or she be expelled from the State in which he or she seeks protection, care, etc. Thus, at the same time that Strasbourg attempts to protect human rights across European borders, its neutralizes to some extent its own capacity to do so by placing the burden of proof, so to speak, on the individual -- as though the individual must still show that he or she is deserving of or in need of human rights protection. What then is the purpose of ECHR? Does it serve only a political significance and less a practical significance? The problem is that States do not necessarily fall under the jurisprudence of Strasbourg and thus there is no effective way for one court to administer over a State which has its own court in place and a number of factors as well, which preclude the strength of the State in the face of the ECHR.
Contradictions and Conflicts
Yet the ECHR has ruled elsewhere in a contradictory fashion, simultaneously juggling the various Articles, interpreting them according to myriad lights so that any one of them might at any given time be validly used to support virtually any appeal for human rights protection. This is evident in the case of Z. And T. v UK (2006). Here, the ECHR "opposed" one Article of its Constitution to another, suggesting that there is some inconsistency in the fabric of the Constitution itself. In effect, the ECHR observes that there is a problem of pragmatism in the execution of its Constitution when it states that "on a purely pragmatic basics, it cannot be required that an expelling Contracting State only return an alien to a country where the conditions are in full and effective accord with each of the safeguards of the rights and freedoms set out in the Convention." In other words, the reality of international law and the idealism of the ECHR are in subtle conflict with one another. Battjes (2008) notes that "the Court opposed Article 9 to the "fundamental" character of Article 3 (and Article 2)," essentially cancelling out whatever impact the human rights convention intended to have.
The question, therefore, does not come down to whether or not providing health care to an alien without the right to stay is a violation of Article 3, but whether or not that alien can be viewed as being able to achieve reasonable care in his or her own country of origin, therefore allowing the State to be "off the hook," so to speak. In short, the expectations that the ECHR created for human rights is not a universal expectation within the European community, because States that can avoid the expectation will if they can place the burden of protection on another. This is evident in the UK's approach to Article 3 in the case of N. It is assumed that N. will receive care in Uganda, although this assumption is based not entirely on fact but rather on factualisms. This reliance upon factualisms allows a legalistic escape for the State, through which it can avoid having to accept responsibility for all individuals within its borders, thus further muddying the waters that is the relationship between ECHR and member States. If UK can avoid having to pay for aliens without the right stay, who else can? Furthermore, if an alien cannot find protection anywhere in the EU, what good is the EU Convention other than that of mere lip service to human rights?
Considering also that "Section 2 of the Human Rights Act (1998) enjoins UK domestic courts to "take into account" Strasbourg jurisprudence but does not bind them to it," and the problem of sovereignty becomes all too apparent. The EU's attempt to establish a protocol for human rights is in conflict with State sovereignty and the State that chooses to deny something like health care to an alien without the right to stay is well within its own rights and political ability to do so (Tyrrell, Helene, Grace, 2009, p. 1).
In conclusion, Article 3 of the ECHR does not impress upon the State the expectation that it be required to provide care…
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