14_Article 3 of the European Convention on Human Rights

Background The rights enshrined in the European Convention on Human Rights were implemented in English law in the Human Rights Act 1998, which came into force on 2 October 2000. Article 3 of the ECHR effectively provides a further argument against removal for asylum applicants – even if an asylum applicant fails to establish refugee status within the Refugee Convention, they can argue that removal to their country of origin will result in a breach of Article 3. Therefore, it provides an alternative basis for seeking leave to remain in the UK and will be considered as an imputed claim in all asylum claims. A successful Article 3 claim will give rise to a grant of Humanitarian Protection or Discretionary Leave. The Law Article 3 provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 3 is an absolute right, ie it cannot be balanced against competing interests like some of the other ECHR rights and it applies even in times of war or other public emergency. Everyone is entitled to respect for their Article 3 rights regardless of issues weighing against them, such as maintaining effective immigration control. The paper entitled “Introduction” sets out that there is a territorial limit on the UK’s obligations under the ECHR – in general, they only arise where the alleged treatment contrary to the ECHR right will occur within the UK. As set out, the UK’s obligations under Article 3 are engaged where there is a real risk that removal would give rise to a breach of Article 3.

The extent of Article 3 Article 3 is broader in its application than the concept of ‘persecution’ under the Refugee Convention as follows:  There are no exclusions from Article 3 protection on grounds of national security or criminality  The applicant does not have to show that the harm feared is for a particular reason, eg race, religion, nationality, membership of a particular social group or political opinion  The harm feared need not have the character of “persecution” or even have the character of aggressive action necessitating international protection (eg Article 3 medical claims) The threshold for Article 3 The absolute nature of the right leads to a very high threshold. Many factors will be taken into account by a court considering whether someone faces a real risk of treatment contrary to Article 3 on return, eg the nature, seriousness and duration of the treatment, the mental and physical effects of the treatment, the age and gender of the applicant and the applicant’s state of health. In the case of Pretty v UK, the European Court of Human Rights provided the following guidance on treatment that will reach the Article 3 threshold: “As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court’s case law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3”. The Pretty guidance was adopted by the Court of Appeal in the case of Q v SSHD and the following was added: “Treatment implies something more than passivity”. The ECHR is a living instrument so types of ill treatment that fall within Article 3 may change over time as social conditions change and former practices become unacceptable (eg corporal punishment).

Torture: this is the most serious kind of Article 3 ill treatment and consists of deliberate inhuman treatment, causing very serious suffering (physical and/or mental suffering). Torture implies deliberately inflicted suffering of particular intensity and cruelty. Ill treatment that could constitute torture:  Beating suspects in a police station to extract a confession and information about political activities Inhuman treatment or punishment: less severe than torture. The threshold is still high but the treatment doesn’t have to be deliberately inflicted. Ill treatment that could constitute inhuman treatment or punishment (particularly cruel and deliberate examples may meet the threshold for torture):  Serious physical assaults  Psychological interrogation methods which fall short of torture (eg food/drink/sleep deprivation, hooding, subjecting suspect to noise, forced standing against wall)  Inhuman detention conditions  Death row phenomenon (ie the combination of circumstances to which an applicant would be exposed if sentenced to death for a capital offence – takes into account duration on death row, the conditions and the applicant’s particular circumstances, such as age and mental state)  Rape  Forced abortion  Forced sterilisation  Acts involving genital mutilation and allied practices Degrading treatment or punishment: less severe than torture. Treatment may be degrading if it arouses in the victim feelings of fear, anguish or inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. Whether treatment is degrading will depend on whether a reasonable person of the same age, sex and health would have felt degraded. Ill treatment that could constitute degrading treatment or punishment:  Severe racial discrimination (and other acute forms of discrimination) Although severe discrimination is capable of meeting the threshold for degrading treatment or punishment, the threshold is high. For example, Roma in the Czech Republic face widespread discrimination, eg in the allocation of housing, employment, education (a disproportionately high number of Roma children are transferred to schools for children with learning difficulties) and access to services. Roma may face discrimination in shops, racially-motivated violence from skinheads and name calling. However, the discrimination faced by Czech Roma is very unlikely to meet the Article 3 threshold (see the case of Hrbac cited in the Czech OGN): “The position in the Czech Republic is such that it will in our view be impossible for a Rom or anyone who has suffered as a result of discrimination against Roma to establish a well-founded fear of persecution”.

What constitutes a real risk of Article 3 treatment? The Court of Appeal held in Bagdanavicius that it is the same threshold of risk as in asylum claims, ie does the applicant have a well-founded fear of treatment contrary to Article 3 on return? This question is applied regardless of whether the receiving State is a signatory to the ECHR. As with asylum claims, when assessing the risk the caseworker will have to consider the availability of State protection (in non-State agent cases) and whether internal relocation would be an option (see separate handouts on protection and internal relocation). There will not be a real risk of Article 3 treatment on removal where the treatment will be from non-State agents and the State provides a sufficiency of protection and/or where internal relocation is a viable alternative. The test for sufficiency of protection and internal relocation in the context of Article 3 is the same as for the Refugee Convention. Standard of living cases In Ngandu (21/9/01), the IAT held that the DRC’s failure to provide adequate food, shelter and healthcare would not breach Article 3 event though the IAT accepted that the living conditions in the DRC were “appalling”. If the applicant was returned to the government-controlled area of the DRC, he would be no worse off than any other DRC citizen living there. Article 3 will not be breached simply because a person will be destitute on return and the threshold is particularly high when the harm in question has not been directly inflicted by the State. Medical cases Medical cases will only reach the threshold for Article 3 in rare and extreme circumstances. The general principle is that a person cannot avoid removal on the basis that they should continue to benefit from medical, social or other form of assistance provided. In medical cases where the claim arises essentially out of a lack of health care and resources in the country of origin (in contrast to what has been available in the UK), applicants will only be granted leave to remain in the UK where there are particular factors in the case which make it exceptionally compelling. Article 3 is only engaged in cases of this kind "where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State". In other words, where the claimant would, in effect, be in no worse position than the majority of people in his country of origin who suffer from the same condition, then a grant of leave would normally be refused.

Factors which might demonstrate exceptional circumstances include the following:  if the claimant is in the terminal stages of illness and has a short life expectancy even with treatment  if the claimant has lived in the UK for a long length of time Factors which will generally not, on their own, demonstrate exceptional circumstances include the following:  if the claimant would be unlikely to receive treatment in the country of origin or if the treatment would be less effective than that which is being received in the UK  if the claimant would not be able to pay for treatment  if the claimant has no family in the country of origin Prison conditions Whether poor prison conditions are capable of reaching the Article 3 threshold is fact specific. Relevant considerations include:  Levels of overcrowding  Solitary confinement (segregation and isolation)  Sleep deprivation, eg by constant lighting, lack of adequate sleeping facilities  Complete absence of exercise  Absence of sanitation  Absence of ventilation  Continuous surveillance  Absence of medical treatment  Malnourishment  Vermin infestations  Absence of natural light In order to reach the Article 3 threshold, conditions of detention have to reach a minimum level of severity. Several of the above would have to be present for a significant duration in order for the suffering to reach that minimum level of severity. The European Court of Human Rights in Kalashnikov v Russia [2002] held that the following conditions in Russia cumulatively constituted a breach of Article 3:  severe overcrowding (0.9-1.9m2 per prisoner whilst the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment set an approximate desirable guideline for a detention cell of 7m2 per prisoner)  insanitary environment (inadequate ventilation, confinement to overcrowded and stuffy cell for 22-23 hours per day, cell infested with pests (cockroaches and ants) without anti-infestation treatment, applicant contracted various skin diseases and fungal infections and was detained on occasion with detainees suffering from syphilis and tuberculosis, lavatory pan not separated from living area - photos showed filthy cell and toilet area with no real privacy)  detrimental effect on the applicant's health and well-being (caused considerable mental suffering - beds were shared and sleep was based on 8-hour shifts whilst the cell was lit constantly which resulted in sleep deprivation, conditions must have diminished applicant's human dignity and aroused in him such feelings as to cause humiliation and debasement)

the length of the period during which the applicant was detained in such conditions (4 years and 10 months) The Court held that the fact that there was no indication the Russian authorities positively intended to humiliate or debase the applicant could not exclude a finding that Article 3 had been breached. On the other hand, in SSHD v Fazilat [2002], the IAT held that the following conditions in Iran did not breach Article 3:  some prison facilities are notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the government – there was no real risk that the applicant in this case would be treated as if he were a political opponent  prison conditions are harsh. Some prisoners are held in solitary confinement or denied adequate food or medical care in order to force confessions – the applicant in this case was not at all likely to face ill treatment in order to force a confession The Tribunal did “not doubt that prison conditions in Iran are far from ideal … *and+ may not measure up to what is expected in this country … Recognition has to be had to the situation in individual countries and to the standards that are accepted, and expected, in those countries. Of course in relation to Article 3, there is a line below which the treatment cannot sink … *but+ the threshold has to be a high one because, otherwise, it would be, as one recognises, quite impossible for any country to return to a non-signatory an individual who faces prosecution, rather than any sort of persecution.” Consideration of Article 3 by caseworkers Caseworkers will consider whether the alleged treatment on return is capable of breaching Article 3 in tandem with the asylum claim, ie that it is capable of amounting to persecution. Caseworkers may consider the following:  Whether the treatment clearly falls short of the Article 3 threshold  Whether, for alleged ill-treatment by non-State agents, the State provides a sufficiency of protection in respect of that type of treatment  The availability of internal relocation When considering sufficiency of protection and internal relocation, caseworkers will rely heavily on the information and the steer in the relevant OGN.

Approach to take to Article 3 in the OGN Article 3 will be relevant for all the main types of claim. For each of the main types of claim, the OGN should consider the type of claim caseworkers should expect to see (which will include the type of victim and the type of ill treatment alleged) and then consider whether the country information allows us to defend claims of that type on the basis that there is a general sufficiency of protection provided by the authorities in respect of that type of treatment. The viability of internal relocation should also be considered. For countries where prison conditions are particularly harsh, the OGN should provide a steer on whether they are capable of reaching the Article 3 threshold (taking the above factors into account). Where, for example, the US State Dept sets out that prison conditions in a particular country are life threatening, the reasons why should be considered. Where a country is taking active steps to improve prison conditions, that should be set out along with details of progress made. Where prison conditions in a particular country are notably worse in particular detention facilities, that should also be set out. It cannot be up to individual caseworkers to determine whether prison conditions in a particular country will amount to a breach of Article 3. This is for the CIPU country officer, who should provide guidance on this (where they are able to do so from the available country information). To leave such decisions to individual caseworkers would result in inconsistency in decision making. Therefore, the following paragraph in an OGN would be unhelpful: “Caseworkers may wish to consider whether prison conditions for detainees are such that they contravene Article 3 of the ECHR”. The guidance in the OGN should set out whether prison conditions meet the Article 3 threshold – if this will depend on particular factors, such as the type of detention facility, that should be set out in the OGN. If the steer is that the Article 3 threshold is met, the OGN should set out the cumulative factors that have led to that conclusion. If prison conditions are particularly harsh and are likely to meet the Article 3 threshold for particular applicants only (eg those in a particular facilities or those convicted of particular types of crime), that should also be in the OGN. Since the Article 3 threshold for medical cases is particularly high, the OGNs do not have to go into great detail about different available treatments. However, the OGN should cover  Whether there is free healthcare and, if so, whether there are any key (ie life saving) facilities that would not be available, eg particular surgical procedures, cancer treatment, kidney dialysis, anti-retroviral therapy  Whether the gaps in free healthcare are filled by private healthcare  The availability of mental health care


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