The Human Rights Act & The European Convention on Human Rights

Introduction
The European Convention on Human Rights 1950, to which the UK is a party and one of the founder members of the Council of Europe under whose auspices the Convention was adapted, has now been given the force of law in the UK by the enactment of the Human Rights Act 1998. The approach of British courts in the past with regard to the Convention was to give it the status of an international treaty but not as part of the law of Britain. Thus it was only included to provide as an account of legitimate expectation.

The Human Rights Act comes into effect on 2 October 2000 for decisions made on or after that date. Section 1 Subsection 2 of the HRA brings into domestic law most of the provisions of the Convention - not all the provisions of the Convention but most of them. The articles in question are set out in Schedule 1 of the Human Rights Act. The UK has entered a derogation from article 5 subsection 3 (trial pending bring a defendant before a criminal court) and a reservation to article 2 of the first protocol (right to education). Also left out from the Human Rights Act are articles 1 and 13 of the European Convention Human Rights. HRA convention rights are already in effect in Scotland and Wales under the Scotland Act 1998 and the Government of Wales Act 1998, but only in respect of devolved matters.

The far-reaching impact of the HRA is likely to be felt in various branches of UK law, especially in the field of immigration law. Other areas such as social security and welfare legislation, civil liberties, the law relating to children, family law in general, provision of education and certain areas of criminal law and procedure are likely to be affected. In the field of immigration, it is thought, for example, that article 6 may be invoked to challenge the lack of a right of appeal in certain areas. Article 3 may be used to challenge deportation to inhuman or degrading situations. Article 8 in particular is expected to have far-reaching impact on certain deportation decisions, entry refusals and removal actions.

Interpretive approach
The approach to interpreting HRA convention rights will be markedly different to the case law/common-law approach conventional in the UK. Under Section 2 subsection 1 HRA domestic courts and tribunals must have regard to the case law of the European Court of Human Rights (ECHR) and the European Commission of Human Rights (the Commission), decisions of the Committee of Ministers taken under article 46 of the Convention when deciding any issue of HRA convention rights.

Section 3 subsection 1 states that all domestic legislation must, so far as is possible, be interpreted in a way that is compatible with the HRA convention rights. This applies whether a litigation pre or post dates the coming into force of the HRA. The duty applies to all public authorities (not just courts and tribunals). Please note that this statutory obligation to take into account would not mean that the national courts are bound by the Strasbourg case law as a matter of stare decisis. They are required to interpret national legislation in accordance with the Convention only "so far as it is possible to do so" (Section 3 of the HRA). The expression "as far as possible" is borrowed from Community Law (see Marleasing v La Commercil (1990) ECR4135) and would mean as far as possible without destroying the object of the statutory provision. As could be seen under the terms of the HRA, especially subsections 2 and 3, the courts and tribunals are not obliged to follow the Strasbourg jurisprudence. It is thought to be highly unlikely, however, that a British court would easily dislodge a proposition of law, particularly an absolute exposition of a Convention article advanced by the Strasbourg Court.

The concept and principles of interpretation
The principles of interpretations that have to be applied could be summarized as follows:

• HRA Convention rights must be interpreted under international law rules governing the interpretation of treaties, as the ECHR itself is an international treaty. In essence a purposive approach needs to be adopted: that is, one that tries to realise the objects and aims of the HRA convention rights.
• The objects and purposes of the HRA convention rights include protecting individual human beings and the promotion of the ideas and values of a democratic society. Democracy in this context is to be equated with broadness, tolerance and broadmindedness but does not always mean the will of the majority if it conflicts with an individual's human rights: Young, Jones and Webster v UK (1982) 4EHRR38.
• The HRA convention rights must be practical and effective as opposed to rights which are theoretical and illusory: Ardico v Italy (1981) 3EHRR1.
• HRA convention rights must be interpreted "in the light of present day conditions" (Tyrer v UK (1979-80) 2EHRR1), as the convention which they mirror is a living instrument. Generally this means that the older a decision of (say the ECHR) the less reliable it may be as a guide to the correct interpretation of HRA convention rights. This principle, in particular, is completely different from the binding precedent effect of domestic court decisions that we are used to in the UK, where a decision of the House of Lords has to be followed even though it may have been made over 100 years ago. By definition the rule of precedent may not apply in jurisprudence of the ECHR and the European Commission of Human Rights.
• Particular attention is paid to legislative consensus developing in the various contracting States.
• Many of these factors may mean that it would be appropriate for the interpreting court or tribunal to refer to other international treaties or instruments when interpreting the proper scope of an HRA convention right (e.g. The European Social Charter, UN Convention on the Rights of the Child, European Convention on Human Rights and Protocols (ECHR), Geneva Convention on the status of Refugees, International Convention on Civil and Political Rights (ICCPR), UN Convention of Universal Rights and Fundamental Freedoms, UN Convention Against Torture, UN Conventions on the elimination on all forms of racism, UN Convention on the Elimination of all forms of discrimination against Women (CEDAW).

The above-cited principles could be categorised as forming proportionality tests and margin of appreciations. Both these tests are normally regarded in relation to the operation of the qualified rights in the Convention. The test of proportionality is used extensively in the Convention jurisprudence and is applied normally to cases where there is a balance to be struck between the enjoyments of the Convention right and the justifiable domestic law interference with their enjoyment. Every state interference with the Convention right must be proportionate to the legitimate aim pursued. Note that the proportionality test is in some respect akin to the English law concept of "rationality" or "reasonableness" which is frequently applied in judicial review proceedings to test the legality of a public authority's decision. Margin of appreciation is often used by the Strasbourg Court, normally in conjunction with the proportionality test, and this is to access if there is a legitimate justification for derogating from a Convention obligation. Under this test the State is allowed a certain measure of discretion when it takes legislative, administrative or judicial actions in the area of a Convention right. In essence both these tests normally apply to assess the State's claim that the interference or derogation from the Convention right was legitimate because it was in the public interest or necessary "in a democratic society" in the interests of national security, public safety or economic well-being so-on and so forth. It is believed that there could be an exception for British courts from the two tests when interpreting the compatibility of national legislation with the Convention rights under the interpretative obligations prescribed by Sections 2 and 3 of the HRA.

The concepts of necessary in a democratic society, living document, and non-applicability of the doctrine of precedent have been briefly discussed above. However, to recap necessary in a democratic society is used as a corollary to the proportionality test and connotes that imbalance between the individual's enjoyment of rights and freedoms and justifiable State interference matters which are legitimately necessary in a democratic society "would pay a significant role". Some examples of the kind of matters or factors the courts/tribunals would take into account in balancing the competing interests may be found in the wording of article 8 subsection 2 of the Convention which provides a State's domestic law interference with article 8 subsection 1 right to respect for family life, may be justified if it is based on matters that are necessary in a democratic society in the interests of public safety so-on and so forth.

"Living document" is to denote that since the Convention was drafted many years ago, after the Second World War, not all of which would be relevant to a new world which has entered a new millennium. Mindful of that the ECTHR has recognised the need of interpreting the Convention, as if it is a "living document" to meet the changing needs of societies. Thus a "dynamic or evolutionary" approach may be applied in tandem so as to interpret the Convention "in the light of the present-day conditions". The principle with right from Tyrer v UK (1978) 2EHRR1.

Non-applicability of the doctrine of precedent is in short an inevitable consequence of the "living document" notion is that the doctrine of precedent (in the English law sense) need not be strictly observed, since the given provision of the Convention cannot have a perpetual meaning which is fixed for all times.

States may enter derogation against certain obligation under the Convention in times of war or other public emergency. The process allows a State not to comply with the Convention obligation to the legitimate extent of the derogation. For example, the UK has entered derogation with respect to activities in Northern Ireland and reservation with regard to the right of education: See Section 14 and Section 15 of the HRA for a statement of the derogations and reservations entered for the purposes of the Act. Another feature of those rights is that the standards prescribed by the Convention in describing the rights are a minimum standard. It is expected that no State would be permitted to apply a lower standard than those prescribed by the Convention. Furthermore, those states in which human rights and protection of civil liberties have an advanced standard of protection will ensure that the domestic law and procedures secures even higher standards.

What if domestic legislation cannot be interpreted consistently with the Convention?
If legislation cannot be interpreted in a way that is compatible with the HRA Convention rights what the court or tribunal can do will depend on whether the legislation is primary or subordinate.

• Primary legislation - The public authority making the decision cannot ignore the offending provisions in the Act and must give it effect: Section 3 (2) (B). However, the High Court (or Appellate Courts) can make a declaration of incompatibility under Section 4 HRA. A victim wishing to obtain such a declaration would have to make an application for a judicial review or appeal to the Court of Appeal. If a declaration of incompatibility is made, Parliament has a choice: it can amend the offending provision or it can maintain it in face of the court declaration. In the latter event, the person whose right has been infringed can take his or case to the European Court of Human Rights. In addition, under Section 10, a minister can, following a declaration of incompatibility, himself amend primary legislation where the ECTHR also finds against the UK after the Section comes into force (2 October 2000). The minister must have compelling reasons for following this course. This is the so-called "fasttrack" procedure. The Government has said that if a declaration of incompatibility were to made then the Act in question would almost certainly be changed.
• Subordinate legislation - This is made by ministers under an Act if such legislation conflicts with the HRA Convention right should not be applied unless the Act is so prescriptive that the relevant had no choice but to make regulations in a way which (it has now transpired) is inconsistent with those rights: Section 3 subsection 2 para C HRA. In this case the High Court and Appellate Courts can again make declaration of incompatibility.

Otherwise what will happen depends on where the case is being dealt with. The High Court could strike down the subordinate legislation, or at least the offending part, as being ultra vires. In addition, it might order the minister to make new subordinate legislation (or at least to consider doing so) but this time in a manner consistent with HRA Convention rights. The court will not emanate any new legislation.

Other public authorities - such as tribunals, commissioners and housing benefit review boards - should disapply ultra vires subordinate legislation in the particular case: See Foster v Chief Education Officer (1993 1A11ER705 (HL)). They cannot strike down legislation (or even the offending part). However, the precedent effect of a public authority's decision means that the decision by a public authority to disapply subordinate legislation really has the same effect.

The effects of declaration of incompatibility on immigration matters
As mentioned earlier under Section 4 of the Human Rights Acts certain higher courts have been empowered to make declaration of incompatibility when the court is satisfied that a provision of primary legislation or subordinate legislation cannot be interpreted compatibly with the Convention right. The immigration appellate authorities have no such power: See Section 4 subsection 5. This subsection gives the meaning of court as:
a) The House of Lords
b) The Judicial Committee of the Privy Council
c) The courts - Marshall Appeal Court
d) In Scotland, the High Court of Judiciary, sitting otherwise as a trial court, or the Court of Session
e) In England and Wales or Northern Ireland: The High Court or the Court of Appeal

It is thought, however, that in certain immigration cases, recourse to the procedure of declaration of incompatibility wouldn't be appropriate to ensure that the incompatible provision in primary legislation is removed or suitably amended to the fasttrack legislative procedure and reside under Section 10 of the Act. In the immigration field one would detect certain provisions of primary legislation which are likely to contravene the incorporated Convention rights. In respect of decisions or actions taken under those provisions of the statute, in the absence of any meaningful power resting in the immigration appellate authorities to declare a decision or action invalid, a proper form would be to move to the High Court for a judicial review application so as to obtain a declaration of incompatibility. For example, when a person is denied his right of appeal pursuant to Section 58 subsection 8 of the 1999 Immigration & Asylum Act on the ground that his appeal had been abandoned solely by the fact that he had left the UK in the pending period, could be argued in seeking declaration of incompatibility that the statutory provision is incompatible with the right to a fair hearing: See article 6 subsection 1-3 of the Convention. Particularly the total depravation of a right of appeal in certain cases (e.g. Work permit holders seeking settlement after four years of continued employment) would be a punitive measure totally disproportionate to whatever national interest, if any at all, it purports to promote. There is also an assumption that other provisions in the 1999 Immigration & Asylum Act which deny appeal rights may be vulnerable to declarations of incompatibility.

Convention rights engageable in immigration appeals
Section 65 subsection 1 of the Immigration & Appeals Act 1999 stipulates that an appeal based on human rights is available when the "authority" decision is under the Immigration Act relating to the person's entitlement to "enter or remain" in the UK is a breach of HRA Convention rights (meaning appeal right does not extend to refusal of naturalisation or registry as a British citizen). Another limitation under Section 65 is the use of the word "authority" rather than public authority: it is a limitation because Section 65 subsection 7 of the Immigration & Asylum Act defines authority as only:
a) Secretary of State
b) An immigration officer
c) A person responsible for the grant or refusal of entry clearance

Thus decisions taken by others performing a public duty are excluded, such as Group 4 or other contractors of immigration detention centres, the police exercising immigration powers or British Airways (airport liaison officers) unless they are defined as a, b and c above.

Section 65 of the 1999 Immigration & Asylum Act:
(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.
(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant's human rights, the appeal may be allowed on that ground.
(6) No appeal may be brought under this section by any person in respect of a decision if- (a) that decision is already the subject of an appeal brought by him under the Special Immigration Appeals Commission Act 1997; and (b) the appeal under that Act has not been determined.
(7) "Authority" means- (a) the Secretary of State; (b) an immigration officer; (c) a person responsible for the grant or refusal of entry clearance.

Note: for the purposes of proceedings under Section 7 of the Human Rights Act couriers and private immigration detention centres are likely to be classified as public authorities on grounds that they are engaged in functions "certain of which are of public nature" (Section 6 subsection 3 subsection B of HRA).

The very beginning of Section 65 makes it clear that only a person who claims to be a victim of an immigration authority's decision may exercise an appeal right. So there will be no scope for "ex-parte JCWI".

Convention rights and immigration appeals

Right to life: Article 2 - this seems potentially relevant to some immigration appeals, some think it is too early to predict how this article might be invoked or engaged. I, on the other hand, think that it would be invoked in those instances when asylum support is denied for those exercising judicial review or cannot be removed. Especially denying people the right to work and at the same time depriving them of shelter and maintenance. "This is an intentional deprivation of the right to life".

Prohibtion of torture: Article 3 - In non-asylum removals this is a key provision that can and should be invoked, where there is a real risk that the removed person will be subjected to torture or inhuman and degrading conditions. See Hilal (SM) v UK No. 45276/99. Also look at Bensaid v UK No. 44599/98.

Right to Liberty and Security - UK has derogated article 5 subsection 3 of the ECHR, this derogation is contained in pat 1 of schedule 3. It is made under art 15(1) of ECHR - Derogation in time of emergency. The situation in Northern Ireland ( terrorist activity is given as an emergency.

Article 5 lays safeguards against arbitrary deprivation of liberty. The safeguards could be invoked in immigration detentions primarily to prevent unauthorized entry maybe to ensure deportation or extradition. See Cahal v UK (1996) 23 or McVeigh v UK (1981) 25DR15.

Right to fair trial: Article 6 - The right for a fair trial could of course be engaged where a restriction, abrogation or depravation of an appeal right is exercised, it also gives premise to challenge an action or failure to act with regard to the right of a fair hearing.

Article 8 is the article which encompasses the right to family life, which could be used extensively in challenging immigration decisions.

The right to respect for private and family: Article 8 - the article imposes a negative obligation on States not to interfere in respect of an individual's right to respect for private life, family life, home and correspondence. The right "respect for family life" has been described as a right to personal development and to establish relationship: Niemetz v Germany (1992) 16EHRR. It has been said that the article exists to "protect the individual against arbitrary interference by public authorities" Johnston v Ireland (1986) EHRR203. A correlated Article of some importance is article 12 which guarantees the right to marry and found a family. This article is likely to be the most widely-used Convention right in immigration appeals, especially in relation to spouses, children and other dependent relatives appeals. In the context of domestic immigration control it has been stated in one case that mutual enjoyment by parents and child of each others company constitutes a fundamental feature of family life for the purposes of article 8: See B v UK (1988) 10EHRR149.

Wanting to keep in mind the wider concept of family in the Convention, the concept of family in European Jurisprudence is wider than that in British immigration law. For instance, in relation to a person's spouse and children, the relationship between grandparents and grandchildren, and in some cases uncle and nephew, would come within the term "family" for the purposes of the Convention: See Mostaquim v Belgium (1961) 13EHRR: X v Germany (1968) 9BY449. Whether a relationship is sufficient to amount to family life would depend more on the substance than the nature or form of the relationship. "This means it is not the form of family that is tested but the terms of family." Accordingly, a de facto or informal relationship of sufficient substance and stability may come within the term: See Johnston v Ireland (1992) 9EHRR203.