Secretary of State for the Home Department v Z; A v Secretary of State for the Home Department; M v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann,Lord Justice Robert Walker,Lord Justice Carnwath |
| Judgment Date | 05 July 2002 |
| Neutral Citation | [2002] EWCA Civ 952 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 July 2002 |
| Docket Number | Case No: C/2001/2766, C/2001/2520, and C/2001/2325 |
[2002] EWCA Civ 952
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Robert Walker and
Lord Justice Carnwath
Case No: C/2001/2766, C/2001/2520, and C/2001/2325
Robin Tam (instructed by Treasury Solicitor) for the Home Secretary
Nicholas Blake Q.C. and Raza Husain (instructed by Hackney Community Law Centre) for Z
Nicholas Blake Q.C. and Simon Cox (instructed by Hiace Solicitors) for A
Rima Baruah (instructed by Bhogal Lal Solicitors) for M
INTRODUCTION
One of the tasks of the Home Secretary is to control immigration into this country. Those who do not satisfy various tests approved by Parliament are in general expelled to their home state. Sometimes their expulsion may, because of the treatment which may await them in the destination State, infringe rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms or in the Convention Relating to the Status of Refugees. These appeals have been listed together because they involve a consideration of the circumstances in which the act of expulsion to such a destination State involves a breach by the Home Secretary of his obligations under the Human Rights Act 1998 ("the Act") or the Immigration Acts.
In time past it has been argued by the U.K. that a state can not be held responsible under the Human Rights Convention ("the Convention"), as opposed to the Refugee Convention, for what happens to a citizen whom it deports to the country of his nationality and who is then badly treated there. The leading case is Soering v U.K. (1989) 11 EHRR 439 where it was sought to extradite Mr Soering to the USA where he would be at risk of being exposed to the death-row phenomenon, as it was called. The U.K. Government argued that to give Article 3 such extra-territorial effect:
(i) would strain the language and the meaning of the word "subjected" in Article 3 because the sending State was not subjecting the individual to prohibited treatment;
(ii) would interfere with the norms of international judicial process by requiring adjudication on the internal affairs of foreign states not parties to the Convention;
(iii) would create difficulties of evaluation and proof in examining alien systems of law and conditions in foreign states;
(iv) would confer a windfall on the criminal who remains untried at large.
The European Court of Human Rights ("the E.Ct.H.R.") rejected these submissions. Having accepted that:
"Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention"
The Court concluded that:
"These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction." (paragraph 86)
In Soering the Court's judgement contains the following important passages:
"Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the most fundamental values of the democratic societies making up the Council of Europe."(paragraph 88)
"What amounts to 'inhuman or degrading treatment or punishment' depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases. (paragraph 89)
"… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. … In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment." (paragraph 91)
This approach has been followed in a long line of cases most recently Bensaid v UK (2001) 33 EHRR 10, paragraph 32. This causal analysis has been adopted by the Canadian Supreme Court in the expulsion case Suresh v Canada (Minister of Citizenship and Immigration) (2002) SCC1, and by the Irish Supreme Court in Finucan v McMahon (1990) 1 INLR 165 (SC).
In Ti v United Kingdom [2000] INLR 211 the European Court of Human Rights stated at page 228 A:
"It is … well-established in [the court's] case-law that the fundamentally important prohibition against torture and inhuman and degrading treatment under Article 3, read in conjunction with Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention", imposes an obligation on Contracting States not to expel a person to a country where substantial grounds have been shown for believing that he would face a real risk of being subjected to treatment contrary to Article 3 (see, amongst other authorities, the Ahmed v Austria judgment of 17 th December 1996, [1998] INLR 65, paragraphs 39–40).
The Court's case-law further indicates that the existence of this obligation is not dependant on whether the source of the risk of the treatment stems from factors which involve the responsibility, direct or indirect, of the authorities of the receiving countries. Having regard to the absolute character of the right guaranteed, Article 3 may extend to situations where the danger emanates from persons or groups of persons who are not public officials, or from the consequences to health from the effects of serious illness (see HLR v France judgment of 29 th April 1997, (1997) 26 EHRR 29, paragraph 40, D v United Kingdom judgment of 2 nd May 1997, (1997) 24 EHRR 423 paragraph 49). In any such context, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny."
All this was common ground before us. Section 6 (1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6 undoubtedly prohibits expelling an individual within this jurisdiction to a destination State in circumstances in which there is a real risk that the destination State will subject him to torture or to inhuman or degrading treatment.
Each of these immigrants is or claims to be a homosexual and faces expulsion to Zimbabwe where living the sort of sexual life which he would wish to live has been subjected to various social and statutory inhibitions. The common points underlying the appeals of Z and A are two fold. Does the removal of the relevant appellant to Zimbabwe involve subjecting him to a real risk of torture or to inhuman or degrading treatment or punishment contrary to Article 3? If not, is his expulsion nevertheless still incompatible with a Convention right which he has by virtue of Article 8?
Article 3 reads
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 8 reads
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.
Many of the submissions before us have been made at a high level of abstraction. However, we are in a relatively unexplored area of the law. The Strasbourg jurisprudence has not explored the responsibility of an expelling state beyond Article 3 cases but there have been several indications by the Court that it has not ruled out an extension beyond Article 3. The Strasbourg jurisprudence has not considered the responsibility of an expelling State where the treatment to which the immigrant risks being exposed in the destination State involves an inhibition on the expression of his sexuality in a homosexual context....
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