Kacaj (Article 3 – Standard of Proof – Non-State Actors)
| Jurisdiction | England & Wales |
| Judge | Mr J. Freeman,Mr CMG Ockelton,The Hon. Mr Justice Collins |
| Judgment Date | 19 July 2001 |
| Neutral Citation | [2001] UKIAT 18 |
| Court | Immigration Appeals Tribunal |
| Date | 19 July 2001 |
[2001] UKIAT 18
The President, The Hon. Mr Justice Collins
The Deputy President, Mr CMG Ockelton
Mr J. Freeman
IMMIGRATION APPEAL TRIBUNAL
Kacaj (Article 3 — Standard of Proof — Non-State Actors) Albania *
Mr Robin Tam, Counsel For the Secretary of State
Mr Mungo Bovey Q.C. (Scotland) For Ms. Kacaj
Mr David Jones, Counsel
Ms. Kacaj is a 21 year old citizen of Albania. She arrived in this country concealed in a lorry on 12 November 2000 and claimed asylum the following day. She was detained at Oakington and her claim was considered and refused on 20 November 2000. In his refusal letter, the Secretary of State also refused to allow Ms. Kacaj to remain in the United Kingdom despite her claim that to remove her would constitute a breach of her human rights under the European Convention on Human Rights.
Ms. Kacaj appealed to an adjudicator relying on both the Refugee and the Human Rights Conventions. On 5 January 2001 the adjudicator (C.C. Wright Esq.) dismissed her asylum appeal but allowed her appeal under s.65 of the Immigration and Asylum Act 1999 on the ground that removal would constitute a breach of Article 3 of the Human Rights Convention. The Secretary of State sought and was granted leave to appeal against the allowing of the human rights appeal. Ms. Kacaj sought leave to appeal against the dismissal not only of her asylum appeal but also of her assertions that there had been a breach of Articles 4 and 8 of the Human Rights Convention in addition to Article 3. Leave was granted in relation to the alleged human rights breaches but not in relation to the asylum claim. At the hearing, we indicated, following an application by Ms. Kacaj, that we would permit the asylum appeal to be pursued.
Since the appeal raised three issues of considerable importance in dealing with claims under the Human Rights Convention, it was decided that it would be starred. It was originally anticipated that the argument would be concluded within one day. Unfortunately, that proved impossible and it was necessary to find a second day. While we were anxious to conclude the argument as soon as possible since the issues were of great importance to other appeals, we were naturally concerned that the same counsel, from whom we obtained the greatest assistance, should attend and should not, if possible be required to break other commitments. In addition, the tribunal as constituted was constrained by holidays and the forthcoming Easter vacation. In the result, it was not possible to arrange the second day until 21 May 2001. Any delay since that is regretted but results from the need for careful consideration of the issues. In addition to the submissions of counsel appearing before us, we have received and taken into account written submissions prepared by Mr. Nicholas Blake, Q.C. on behalf of Liberty.
The issues are as follows:-
(1) 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?
The Secretary of State contended that the facts upon which the risk of treatment contrary to Article 3 had to be assessed must be established beyond reasonable doubt. This, of course, contrasts with the test under the Refugee Convention established by the Court of Appeal in Karanakaran [2000] Imm A.R. 271.
(2) Can there be a breach of the Human Rights Convention 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 Human Rights Convention or are there differences?
The Secretary of State submits that the existence of a system which is designed to provide the necessary protection is enough even if that system may in individual cases operate imperfectly. Ms. Kacaj submits that, however Horvath is to be interpreted in relation to the Refugee Convention, in human rights terms what is needed is that there should in fact be no risk that the individual who is to be returned is treated in such a way as to violate his or her human rights. Thus if it can be shown that there is a real risk that he or she will, whatever the general system in being, be treated in a way contrary to Article 3, return should not be permitted. It is no good saying, if there is a real risk of torture, that the police will investigate and seek to prosecute the torturers.
(3) Does any Article of the Human Rights Convention other than Article 3 have what has been called ‘extra-territorial’ effect?
In this case, the Secretary of State submits that neither Article 4 nor Article 8 can be relied on where the breach complained of will or may occur outside the jurisdiction of the United Kingdom. The same submission applies to all Articles except Article 3. Article 3 is singled out because of the decision of the European Court of Human Rights in a number of cases, particularly Chahal v United Kingdom (1996) 23 E.H.R.R. 413.
Mr. Tam's starting point is Ireland v United Kingdom (1978) 2 E.H.R.R. 29. That case concerned an allegation by the Republic of Ireland that the United Kingdom had been guilty of breaches of Article 3 in the investigation of suspected terrorists in Northern Ireland. In determining whether any practices which contravened Article 3 had been adopted, the Court approved the standard set by the Commission, saying this (at paragraph 161 on Page 79):-
“The Court agrees with the Commission's approach regarding the evidence on which to base the decision whether there has been violation of Article 3. To assess this evidence, the Court adopts the standard of proof ‘beyond reasonable doubt’ but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account”.
In HLR v France (1997) 26 E.H.R.R. 29 (an important case to which we shall have to return), the opinion of the majority of the Commission includes in Paragraph 35 on Page 37 the following observations:-
“The Government adds that, according to the Commission's case law, an individual's allegations of treatment contrary to Article 3 …, if he is deported to a specific country, must be supported by persuasive prima facie evidence. In this case, however, the evidence supplied by the applicant is not such as to support his allegations. The Convention institutions require allegations of treatment prohibited by Article 3 to be proved ‘beyond reasonable doubt’”.
The Commission is there setting out the Government's argument. It does not itself approve it and, as we shall see when we consider the judgment of the Court, there is no reflection let alone approval of the argument. Indeed, in Paragraph 39 on Page 38 the Commission sets out the test which has been said to be applicable in deportation cases since at least Soering v United Kingdom (1989) 11 E.H.R.R. 439 thus:-
“However, according to the case law of the Convention institutions, the decision to deport an individual to a particular country may, in certain circumstances, be contrary to the Convention, in particular Article 3, where there are serious reasons to believe that the individual will be subjected, in the receiving state, to treatment proscribed by that Article.”
It is not in the least surprising that where an allegation is made that a State itself has been guilty of acts of torture or inhuman or degrading treatment or punishment the allegation must be strictly proved. The allegation is of intentional conduct which violates one of the most fundamental of human rights. But the Court has, in addition, recognised that a failure to prevent such violations may itself constitute a breach of Article 3. Thus in A v United Kingdom (1998) 27 E.H.R.R. 611, the United Kingdom Government conceded that the applicant, a 9 year old boy, had been beaten by his stepfather so severely as to amount to a breach of Article 3, but did not accept that it was responsible. The Court decided that it was because under English Law there was a defence of reasonable chastisement which had in the case of A persuaded the jury to acquit his stepfather. The existence of that defence meant that the law for which the State was of course responsible did not provide adequate protection to A against breaches of Article 3. Thus children were exposed to the risk that they would be treated in such a way as breached Article 3 because no proper sanctions existed. It was not necessary to prove more than that the lack of proper sanctions would expose a child to a real risk that treatment contrary to Article 3 would be meted out.
In deportation cases (a term which we do not use in its technical sense but to cover all cases where removal from the United Kingdom is required) the decision maker and, on appeal, the adjudicator and tribunal must be concerned to decide whether there is a real risk that Article 3 (or indeed any other Article, assuming the Secretary of State's extra-territorial submission to be incorrect) will be violated. This approach was first spelt out in detail by the Court in Soering v United Kingdom (1989) 11 E.H.R.R. 439. The applicant in that case was to be extradited to the United States where he would face trial for murder and, if convicted, might be sentenced to death. He could not allege a breach of Article 2 (right to life) because it expressly recognised a right to impose capital punishment nor was the imposition of the death penalty prohibited by Article...
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