Deportation orders for national security and ECHR compatibility

UK Immigration and European Convention on Human Rights (echr)

The research question in this study is that of: 'To what extent are deportation orders made by the Secretary of State on the ground that it is conducive to the public good in relation to the national security compatible with Articles 3 and 8 of the ECHR?'

This work intends to examine deportation orders when made by the Secretary of State on the basis that such deportation is conducive to the public good regarding national security and the compatibility of such deportation orders with Articles 3 and 8 of the Europeans Convention on Human Rights (ECHR).

European Convention on Human Rights: Article 3 - 'Prohibition of Torture'

The European Convention on Human Rights: Article 3 - 'Prohibition of Torture' states as follows:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment." (Asylum Policy Instructions, 2006)

European Convention on Human Rights: Article 8 - 'Right to Respect for Private and Family Life'

The European Convention on Human Rights - Article 8 - 'Right to respect for private and family life' states as follows:

1) Everyone has the right to respect for his private and family life, his home and his correspondence; and 2) There shall be no interference by a public authority with the exercise of this right except such as is 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." (Asylum Policy Instructions, 2006)

IV. Introduction

Prior to the Human Rights act of 1998 anyone who might want to bring a claim against the United Kingdom government for having acted in breach of the Convention on Human Rights had only the option of filing this claim before the European Court of Human Rights in Strasbourg and was required to demonstrate that all remedies in the UK courts had been exhausted. Because this process was "inevitably lengthy and expensive it was the decision of the Parliament that this was unacceptable and that "the importance of maintaining human rights in the country means that rights guaranteed by the Convention should be enforceable in domestic courts." (Asylum Policy Instructions, 2006) This resulted in the introduction of the Human Rights Act 1998.

In the procedures of the 'Return [of] Irregular Migrants' and as stated by Amnesty International in regards to Human Rights and specifically from the perspective of Articles 3 and 8 of the European Convention on Human Rights (ECHR) there are issues relating to forced return of migrants upon the basis of the individual being a threat to national security in the UK that results in an overbroad definition of specifically how this is applicable. The Amnesty International work entitled: "Returning 'Irregular' Migrants: The Human Rights Perspective" states in relation to Article 2 of the ECHR that Article (3) b: notion of 'illegal stay' should "be further clarified in order to insert safeguards regarding asylum-seekers being removed under a 'safe third country' procedure or responsibility sharing agreement." (Amnesty International, 2006) it is the position of Amnesty International that 'particular safeguards need to be put in place for the return to third countries of asylum-seekers whose applications have not been determined on substance in a Member State. In those cases, removal should be implemented only if access is assured to an asylum procedure in the relevant country and to effective protection in cases where it is needed." (Amnesty International, 2006) the recommendation of Amnesty International is that Article 3(b) be amended to "clearly exclude asylum seekers who have not yet been issued a final decision at first instance or in an appeal." (Amnesty International, 2006)

Amnesty International also states that it "welcomes the provision in article 8(1) for Member States to postpone the enforcement of a return decision as a result of specific circumstances of the individual case." (2006) Amnesty International states that it urges States to "recognize that there are additional factors providing sound grounds for postponing a return decision which are not referred to in the draft directive." (2006) Amnesty International further states the recommendation that "....references be included in Article 8 (2) (b) to cases where the third country fails to co-operate in the issuance of travel document, one of the most frequent obstacles to removal. In order for returns not to destabilize a fragile country, Amnesty International believes that UNHCR should be consulted about the conditions for enforcing removals to countries of origin which have experienced large scale forced migration, conflict situations, or are facing heavy reconstruction challenges." (Amnesty International, 2006) Therefore, Amnesty International states the recommendation that article 8 be amended accordingly.

In regards to unaccompanied minors it is stated that Amnesty International "...welcomes the safeguards included in article 8.2 - in relation to the return of accompanied minors. However, to ensure that these safeguards are implemented in practice, clarification and additional guarantees are needed in order to ensure that the best interest of the child is a primary consideration. In order to enhance children's protection, the directive should establish criteria determining to which competent authorities will assess the need to postpone a removal order. Such criteria could include the age of the claimant, his/her family situation, his/her degree of integration in the host country. Amnesty International also believes that the current draft is too vague when it comes to assessing the reception conditions in the country of origin While in its present form, the draft directive states that minors could be handed over to "a family member," "a guardian or an equivalent representative" or "a competent official of the country of return," we believe that unaccompanied children should only be returned when they are handed over to the person who will be their primary carer, whether that is a family member or a legal guardian. The child and his/her legal guardian in the EU Member State must be informed of the name of the person to whom the child will be handed over, as well as the person's future relationship to the child. An additional provision is required to ensure that any postponement of separated child's return is communicated to that child and to their legal guardian." (Amnesty International, 2006) the recommendation of Amnesty International is that article 8.2- be amended accordingly.

CHAPTER TWO

I. Case Law - Examination of the Issues in Articles 3 and 8

A. Article 8

In order to understand the scope of the protection in Article 3 and Article 8 of the ECHR this work first examines cases that are general in regards to the protections afforded under these two articles. The first of these cases illustrating the general provisions of protection is found in the work entitled: "ECHR Case Law - Copeland vs. United Kingdom" reports a case in which Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was violated. It is stated that the applicant "complained about the monitoring of her telephone calls, e-mail correspondence and internet usage under Articles 8 and 13." (Legile Internetului, 2009) it is additionally stated in the section entitled: 'The Law: I. Alleged Violation of Article 8 of the Convention' as follows:

The applicant alleged that the monitoring activity that took place amounted to an interference with her right to respect for private life and correspondence under Article 8, which reads as follows: (1) "Everyone has the right to respect for his private and family life, his home and his correspondence; and (2) There shall be no interference by a public authority with the exercise of this right except such as is 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, or the protection of health or morals, or for the protection of the rights and freedoms of others." (Legile Internetului, 2009)

It is related that the government "...accepted that the College was a public body for whose actions the State was directly responsible under the Convention. The government additionally stated the following claims:

Although there had been some monitoring of the applicant's telephone calls, e-mails and internet usage prior to November 1999, this did not extend to the interception of telephone calls or the analysis of the content of websites visited by her. The monitoring thus amounted to nothing more than the analysis of automatically generated information to determine whether College facilities had been used for personal purposes which, of itself, did not constitute a failure to respect private life or correspondence. The case of P.G. And J.H. v. The United Kingdom, no. 44787/98, ECHR 2001?IX, could be distinguished since there actual interception of telephone calls occurred. There were significant differences from the case of Halford v. The United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997?III, where the applicant's telephone calls were intercepted on a telephone which had been designated for private use and, in particular her litigation against her employer. In the event that the analysis of records of telephone, e-mail and internet use was considered to amount to an interference with respect for private life or correspondence, the Government contended that the interference was justified. First, it pursued the legitimate aim of protecting the rights and freedoms of others by ensuring that the facilities provided by a publicly funded employer were not abused. Secondly, the interference had a basis in domestic law in that the College, as a statutory body, whose powers enable it to provide further and higher education and to do anything necessary and expedient for those purposes, had the power to take reasonable control of its facilities to ensure that it was able to carry out its statutory functions. It was reasonably foreseeable that the facilities provided by a statutory body out of public funds could not be used excessively for personal purposes and that the College would undertake an analysis of its records to determine if there was any likelihood of personal use which needed to be investigated. In this respect, the situation was analogous to that in Peck v. The United Kingdom, no. 44647/98, ECHR 2003?I. Finally, the acts had been necessary in a democratic society and were proportionate as any interference went no further than necessary to establish whether there had been such excessive personal use of facilities as to merit investigation." (Legile Internetului, 2009)

In the same case the Court's case-law holds that telephone calls made from business premises are "prima facie covered by the notions of 'private life' and 'correspondence' for the purposes of Article 8-1." (Legile Internetului, 2009) Therefore, it is only logical that emails sent from a business premises should receive similar protection under Article 8, as well as should information obtained from monitoring personal use of the Internet. In this case it is related that the employee was not given any notice that her calls might be monitored so there was no reasonable expectation that her calls were not private made from the telephone at work and it is stated that "the same expectation should apply in relation to the applicant's email and internet use. The court next addressed whether there was any interference with the rights guaranteed under Article 8 and it is stated that the court "recalls that the use of information relating to the date and length of telephone conversations and in particular the numbers dialed can give rise to an issue under Article 8 as such information constitutes an "integral element of the communications made by telephone." (Legile Internetului, 2009). The court held that the "...mere fact that these data may have been legitimately obtained by the College, in the form of telephone bills, is no bar to finding an interference with rights guaranteed under Article 8 (ibid). Moreover, storing of personal data relating to the private life of an individual also falls within the application of Article 8-1. Thus, it is irrelevant that the data held by the college were not disclosed or used against the applicant in disciplinary or other proceedings." (Legile Internetului, 2009) the Court stated that it considered "...that the collection and storage of personal information relating to the applicant's telephone, as well as to her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Article 8." (Legile Internetului, 2009)

B. Article 3

Article 3 protects individuals from being removed to their country of origin if that means that they will be tortured upon their removal. The work of Mathias Vermeulen (2009) entitled: "UN Special Rapporteur Releases Report on the Role of Intelligence Agencies in the Fight Against Terrorism" states that Martin Scheinin, UN Special Rapporteur stated "Key concepts that underlie most intelligence-sharing agreements increase the possibility that many countries, including liberal democracies opposed to torture become complicit in international crimes." (Vermeulen, 2009) Scheinin additionally is noted as having stated that the "active participation by a state through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interview with a person who is being held in places where he is tortured or subject to other inhuman treatment, can be reasonably understood as complicity condoning torture. This would be a violation of the UN Convention Against Torture." (Vermeulen, 2009)

Provisions are also made in the law under Article 8 relating to what constitutes 'family' and 'private life'. An opinion of the same is provided in the Information Centre about Asylum and Refugees (ICAR) document entitled: "UK Asylum Law and Process" section 3.16.1. The Impact of Human Rights Law states that the passing of the 1998 Human Rights Act in the UK which was put into effect in October 2000 effectively incorporated the European Convention on Human Rights (ECHR) into UK law and while not specifically addressing "the rights of asylum seekers or refugees, the basic human rights enshrined in the law, as a results of the 1998 Act do have an important impact upon asylum seekers." (2008) There are immigration rules that state requirements to ensure that the actions of the immigration officers and staff comply with the Human Rights Act. Stated as being of "particular relevance" are both Article 3 and Article 8 of the ECHR. It is prohibited to return an individual to a country, under Article 3 when that individual will "be subjected to torture or inhuman or degrading treatment or punishment." (ICAR, 2008) the asylum seeker must "...demonstrate that they risk harm as a result of one of the five Convention reasons. However, the purpose of Article 3 is to protect individuals from harm regardless of why they are being harmed." (ICAR, 2008) Article 3 is an absolute right and cannot be derogated from." (ICAR, 2008) There are several cases that have focused on whether forced return of an individual to a country where they are denied access to needed medical treatment breaches Article 3.

Case law is found in the (2005) case of N. v Secretary State for the Home Department in which it was ruled by the House of Lords "...that a breach would only occur in exceptional circumstances such as the need to prevent suffering while the individual is dying." (ICAR, 2008) Under Article 8 of the ECHR "unjustifiable interference in an individual's right to respect for private and family life" is prevented. Therefore, according to the ICAR report "It is therefore possible for asylum seekers who have established a family in the UK or have developed significant social networks to argue that removing them from the UK would be a breach of their rights under Article 8. The UK courts have interpreted the concept of 'private life' to include the applicant's mental health and a consideration of any decline likely to be caused by the difference between the treatment they receive in the UK and that available in their country of origin. However, in contrast to Article 3, Article 8 is not absolute, but is subject to a proportionate approach. For example, the state can argue that the need for firm immigration control outweighs the needs of a family to stay together. Asylum seekers may also seek protection in the UK on the grounds that their rights under other articles of the ECHR would be breached by their removal. This includes: the right to life (Article 2); the right to liberty and security (Article 5); the right to a fair trial (Article 6) and the right to marry and found a family (Article 12). Article 14 provides a right not to be discriminated against in the enjoyment of other ECHR rights." (ICAR, 2008)

CHAPTER THREE

II. The Libyan Case

Recent Case Law published by the Migration Watch UK in the Brief Paper 8.25 entitled: "Recent Case Law on Asylum and Immigration" states that the 'Libyan' case "before the Court of Appeal on an appeal against a decision of SIAC" was an appeal against a decision by SIAC in the case of two Libyan nationals, both of whom are Islamist extremists with ties to the Taleban and Al Qa'eda, and one of them being a major opponent of the Gadaffi regime in Libya. Both of these individuals were believed by SIAC to be threats to the UK's national security and as well there was no dispute of the same before the Court of Appeal as the primary concern of the appeal was that of the safety of the two individuals or the respondents upon their being returned to Libya. While the governments of the UK and Libya had both executed a MOU (Memorandum of Understanding) on October 2005, which involved Libya providing their word that anyone the UK deported to Libya would not be ill-treated however, it was the belief of the Home Secretary Government of Libya had entered into the MOU in good faith and intended to honor it, but went on to form the view that Libya's motivation and reasoning might change, giving rise to the consequence that the respondents might be tortured on return. The importance of these considerations is that Article 3 of ECHR provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The United Kingdom and other Contracting States are not permitted any derogation from this absolute prohibition and it is now well established by case law that the rights conferred by Article 3 extend to any case in which a person is otherwise liable to be deported to another country in which there is a possibility that he might face torture." (Migration Watch, 2008) Findings in this case are stated as follows: "The Court of Appeal concluded that SIAC had applied proper tests in considering the validity of the MOU and had correctly taken account of unpredictability on the part of the Libyan regime. SIAC had found that there were substantial grounds for believing that there was a real risk that the respondents might be tortured in Libya, notwithstanding the terms of the MOU." (Migration Watch, 2008)

III. The Abu Qatada Case

The judgment was delivered April 9, 2008 in this case which incidentally was the same day the judgment was handed down in the Libyan case. Abu Qatada, also known as Othman is a citizen of Jordan and found by the SIAC to "be a danger to the national security of the United Kingdom." (Migration Watch, 2008) Othman is stated to have unsuccessfully challenged before SIAC the Home Secretary's decision to deport him to Jordan. This challenge was made upon the basis that "it would be inconsistent with the United Kingdom's obligations under ECHR." (Migration Watch, 2008) SIAC is stated to have found "on the evidence that the appellant was an Islamist extremist who advocated changing the regime in Jordan from monarchy to an Islamic republic governed by sharia law. He had clear links to numerous terrorist groups and individuals and was seen as a threat to the stability of Jordan. He arrived in the United Kingdom in 1993 and was granted asylum. In April 1999 he was convicted in his absence at a trial in Jordan of conspiracy to commit terrorist offences and sentenced to life imprisonment." (Migration Watch, 2008) the SIAC had accepted evidence that the defendants at the same trial had actually been tortured however, these individuals were not examined by doctors while they were being detained and there were no defense attorneys present while they were interrogated. Othman was one of 28 defendants in 2000 in a trial based on a different conspiracy relating to explosions. Othman was convicted again in his absence and received a sentence of 15 years imprisonment. Just as before the SIAC accepted evidence given by defendants at the same trial and was in the form of evidence "extracted under torture." (Migration Watch, 2008) the SIAC had, must as in the Libyan case, accepted that the MOU "would be sufficient protection against the appellants being tortured on being returned to Jordan and to that extent there would be no breach of his rights under Article 3 of the ECHR" however, it is related that article 6 of the ECHR relating to the right to a fair trial which makes the provision as follows: "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. etc. etc." (Migration Watch, 2008)

IV. Tamil Expulsion Found to Be Violation of Article 3 of ECHR

It was reported by the International Law Observer in the work entitled: "ECHR Chamber Judgment Holds Tamil Expulsion Would Violate Article 3" on July 22, 2008 that the European Court of Human Rights "handed down a rather hopeful judgment in the case of NA v. The United Kingdom where it held that the applicant's expulsion to Sri Lanka would be a violation of Article 3 of the ECHR." (Azarov, 2008) in this case NA is stated to have come to the UK "clandestinely in 1999 and sought asylum following the numerous cases of ill-treatment that he experienced when arrested by the army in Sri Lanka due to allegations of involvement with the Tigers." (Azarov, 2008) Following successive applications by the applicant for a judicial review of the decision to return him to Sri Lanka having failed "new removal directions were issued for 25 June 2007. On that date following the applicant's request, the President of the competent Chamber of the European Court of Human Rights decided to apply Rule 39 of the Rules of Court (interim measures) and indicated to the UK Government that the applicant should not be expelled until further notice." (Azarov, 2008)

Azarov (2008) reports that a comprehensive survey was conducted by the European judges of the relevant domestic law and of the procedural steps and practice. Also presented was a "...rather exceptionally favorable example of what the UK Asylum and Immigration Tribunal refers to as country guidance determinations/decisions, which rarely based their decisions on UNHCR Position papers or sufficiently-updated extensive arrays of empirical data." (Azarov, 2008) Further conducted was a "thorough and wide-ranging survey of: (1) UK government reports; (2) relevant EU legal frameworks; (3) letters from the British High Commissioner in Colombo; (4) USA State Department Report; (5) elusions to Canadian practice; (6) NGO reports; and (7) more. (Azarov, 2008) the Court "upheld that although as of general practice it 'would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return," (para 115 of the judgment) in other "exceptional cases "where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court has considered that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned" (para 116)." (Azarov, 2008) Azarov reports "Less fortunately, considering the limited precedent applying the newer community legislation in the field of asylum law, the Refugee Qualification Directive (2004/83/EC) that was to be implemented by 10 October 2006, this judgment, referring to the parties who based there submissions on this legislation's provisions, does very little to advocate for the much needed intersection and interplay between human rights and asylum and immigration laws by concluding that "the applicant's submissions on the basis of Directive 2004/83/EC are outside the scope of its examination of the present application" (para 107)." (Azarov, 2008)the decision handed down states as follows:

t]here is a real risk that the authorities at Colombo airport would be able to access the records relating to the applicant's detention and if they did so, when taken cumulatively with the other risk factors he has relied upon, it is likely the applicant would be detained and strip-searched...lead[ing] to the discovery of his scars...[T]hese are substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities... In those circumstances, the Court finds that at the present time there would be a violation of Article 3 if the applicant were to be returned" (para 147)."

According to Azarov (2008) this judgment "...has come against all odds considering the UK's renowned reluctance to accept many Tamil asylum cases and the Home Office's general practice of doubting the credibility of asylum seekers who are unable to fulfill the exorbitantly high evidential threshold to substantiate their claims. This lead judgment, which applies to a considerable number of requests made by Tamils for the issuance of interim measures (under Rule 39 of the European Court Rules) by the ECHR, provides a haven for many analogously disadvantaged Tamil failed asylum seekers that the Home Office will be looking to return to Sri Lanka." (Azarov, 2008) Azarov writes that this example is a good one of "not only the power of the European Union's institutional platform for the development of a common European asylum policy and legal framework, but also the ECHR's increasingly growing presence and influence on member states' decisions and policy-shaping processes." (2008)

V. The Razgar Case (2004)

The House of Lord document entitled: "Judgments - Regina v. Secretary of State for the Home Department (Appellant) ex-parte Razgar (FC) (Respondent) Session 2003-2004 [2004] UKHL 27 on appeal from: [2003] EWCA Civ 840. Opinion of the Lords of Appeals for Judgment in the Cause on Thursday 17 June 2004" relates in Lord Bingham of Cornhill's statement that Mr. Razgar was "an asylum seeker from Iraq that the Secretary of State had proposed to "remove to Germany under the provisions of the Dublin Convention." [UKHL, 2004]. The removal was resisted by Mr. Razgar on the basis that his rights would be violated under Article 8 of the European Convention on Human Rights." [UKHL, 2004] the Secretary of State however did not accept that removal of Mr. Razgar would violate his rights under article 8 and it is stated that the Secretary of State had "certified under section 72(2)(a) of the Immigration and Asylum Act 1999 that the claim [was] manifestly unfounded." [UKHL, 2004] Mr. Razgar challenged this certification and the questions in this appeal are stated to be "one of pure principle and one directed to the facts of this case so far as they are now known and the process of review." [UKHL, 2004]the question of principle is stated to be that of:

Can the rights protected by article 8 be engaged in the foreseeable consequences for health or welfare of removal from the United Kingdom pursuant to an immigration decision, where such removal does not violate article 3?" [UKHL, 2004]

It is reported that the appeal was heard "immediately following the appeals in R (Ullah) v Special Adjudicator and Do v Immigration Appeal Tribunal and that the opinions of the House in those appeals "are directly germane to the issue of principle in the present case and should be read, to the extent that they are relevant, as incorporated in this opinion. In this appeal it is however, necessary to give more detailed consideration to article 8 of the Convention." [UKHL, 2004] the decision reads that in argument that each side "made generous reference to authority, but each side relied on one authority in particular as encapsulating the pith of its argument." [UKHL, 2004] the Secretary of State's position as stated by the Attorney General "placed strong reliance on a recent admissibility decision of the Strasbourg court in Hena v the Netherlands (Application No. 13669/03, 24 June 2003, unreported) in which the applicant is stated to have been a "Colombian national who was arrested, tried and imprisoned for carrying drugs into the Netherlands. While serving his sentence he was found to be HIV-positive and received appropriate treatment. He resisted deportation to Colombia at the end of his sentence on the ground that he would face difficulties in obtaining treatment for his condition in Colombia, placing reliance on article 3 of the Convention." [UKHL, 2004] the Court held that this application was "manifestly ill-founded" and stated:

The Court reiterates at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question. While it is true that Article 3 has been more commonly applied by the Court in contexts where the risk to the individual of being subjected to ill-treatment emanates from intentionally inflicted acts by public authorities or non-State bodies in the receiving country, the Court has, in the light of the fundamental importance of Article 3, reserved to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not, therefore, prevented from scrutinizing an applicant's claim under Article 3 where the risk that he runs of inhuman or degrading treatment in the receiving country is due to factors which cannot engage either directly or indirectly the responsibility of the public authorities of 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 be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances of the case to rigorous scrutiny, especially the applicant's personal situation in the expelling State (see Bensaid v the United Kingdom, no. 44599/98, 32 and 34, ECHR 2001-I). According to established case-law aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. However, in exceptional circumstances an implementation of a decision to remove an alien may, owing to compelling humanitarian considerations, result in a violation of Article 3 (see D. v the United Kingdom, judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III, p. 794, 54). In that case the Court found that the applicant's deportation to St. Kitts would violate Article 3, taking into account his medical condition. The Court noted that the applicant was in the advanced stages of AIDS. An abrupt withdrawal of the care facilities provided in the respondent State together with the predictable lack of adequate facilities as well as of any form of moral or social support in the receiving country would hasten the applicant's death and subject him to acute mental and physical suffering. In view of those very exceptional circumstances, bearing in mind the critical stage which the applicant's fatal illness had reached and given the compelling humanitarian considerations at stake, the implementation of the decision to remove him to St. Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (see D. v the United Kingdom, cited above, pp. 793-794, 51-54).The Court has therefore examined whether there is a real risk that the applicant's expulsion to Colombia would be contrary to the standards of Article 3 in view of his present medical condition. In so doing, the Court has assessed the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on the applicant's state of health (see S.C.C. v Sweden (dec.), no. 46553/99, 15 February 2000, unreported). The Court notes that the applicant stated on 16 August 2002 that he felt well and had worked, although he did suffer from certain side-effects of his medication. The Court further notes that, according to the most recent medical information available, the applicant's current condition is reasonable but may relapse if treatment is discontinued. The Court finally notes that the required treatment is in principle available in Colombia, where the applicant's father and six siblings reside. In these circumstances the Court considers that, unlike the situation in the above-cited case of D. v the United Kingdom or in the case of B.B. v France (no. 39030/96, Commission's report of 9 March 1998, subsequently struck out by the Court by judgment of 7 September 1998, Reports 1998-VI, p. 2595), it does not appear that the applicant's illness has attained an advanced or terminal stage, or that he has no prospect of medical care or family support in his country of origin. The fact that the applicant's circumstances in Colombia would be less favorable than those he enjoys in the Netherlands cannot be regarded as decisive from the point-of-view of Article 3 of the Convention." [UKHL, 2004]

The Court's decision relates that the judgment is clear that reliance was placed by the applicant in Henao solely on article 3 and that when "read in isolation, the judgment might suggest that only article 3 can be relied on to resist a removal decision made by the immigration authorities. But the House has held in Ullah and Do that that is not so, and it seems clear that the Court confined its attention to article 3 because that was the sole ground of the application." [UKHL, 2004]the Court states that this case provides an excellent example demonstrating the "...stringency of the test applied by the Court when reliance is placed on article 3 to resist a removal decision. It also shows, importantly for the Secretary of State, that removal cannot be resisted merely on the ground that medical treatment or facilities are better or more accessible in the removing country than in that to which the applicant is to be removed." [UKHL, 2004] it is related that this point was clearly made in D. v United Kingdom (1997) 24 EHRR 423, paragraph 54." [UKHL, 2004] While the Henao decision is stated to be directed to article 3, the Court stated in its opinion as follows:

We prefer a somewhat different test. We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged. It seems to us that this approach is consistent with the fact that the ECHR considered the merits of the article 8 claim in Bensaid. It is also consistent with what was said in paragraphs 46 and 64 of Ullah [2003] 1 WLR 770." [UKHL, 2004]

The Convention is stated to be "directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits." [UKHL, 2004] Stated as the 'bedrock' of Mr. Razgar's case is the decision handed down by the Court in the case of Bensaid v. United Kingdom (2001) EHRR 205. In this case the applicant is stated to have been an Algerian National "...who entered the United Kingdom in 1989 and was permitted to remain for a period which expired in 1992. In 1993 he married a United Kingdom citizen and was in due course granted indefinite leave to remain as a foreign spouse. In 1996 he left the United Kingdom for a month to visit Algeria, and following his return was refused leave to enter on the ground that his indefinite leave to remain had been obtained by deceptively entering into a marriage of convenience. It was proposed to remove him. Before this, he had been diagnosed as a schizophrenic suffering from psychotic illness of such severity that compulsory detention in a psychiatric hospital was considered. In the event, he responded to treatment and his illness was successfully managed out of hospital save for one brief period. The applicant relied on articles 3 and 8 of the Convention to resist removal. He contended that the nearest hospital at which his psychiatric illness could be treated in Algeria was some 75-80 km from his home village, and adduced evidence that there was a high risk of his suffering a relapse of psychotic symptoms on returning. He had lost all insight into the fact that he was ill and believed the persecutory delusions and abuse which he experienced, including voices telling him to harm other people. He had previously felt so hopeless and depressed as to contemplate suicide. In the opinion of a psychiatrist, there was a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect." [UKHL, 2004]

The Court's judgment gave consideration to the claim of the applicant under article 3 and came to the conclusion that "...implementation of the decision to remove him to Algeria would not violate article 3 of the Convention." The Court stated as follows:

The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D. case.... where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts." [UKHL, 2004]

The court next considered the complaint of the applicant on the basis of article 8 and stated in the complaint that "withdrawal of that treatment [NHS treatment since 1996] would risk a deterioration in his serious mental illness, involving symptoms going beyond horrendous mental suffering - in particular there would be a real and immediate risk that he would act in obedience to hallucinations telling him to harm himself and others. This would plainly impact on his psychological integrity. In addition to the ties deriving from his eleven years in the United Kingdom, the treatment which he currently receives is all that supports his precarious grip on reality, which in turn enables some level of social functioning." [UKHL, 2004]This removal of the applicant was not accepted by the government that the removal of the applicant would be in violation of article 8 on the basis "that immigration policy was necessary for the economic well-being of the country and the prevention of disorder and crime. Therefore the conclusion of the Court were the "...implementation of the decision to remove the applicant to Algeria would not violate article 8 of the Convention." [UKHL, 2004] Specifically, the court stated as follows:

46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.

47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.

48. Turning to the present case, the Court recalls that it has found above that the risk of damage to the applicant's health from return to his country was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims." [UKHL, 2004]

According to this report the Secretary of State made it clear that he would still seek to remove this individual and it is reported that this case is presently under appeal.