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Beyond the Geneva Convention: constructing a de facto right of asylum from international human rights instruments

Richard Plender and Nuala Mole

Other chapters in Part 1 have focused on issues concerning the refugee definition and refugee rights under the 1951 Geneva Convention Relating to the Status of Refugees1 and the 1967 New York Protocol.2 This chapter examines the other international or regional instruments affecting the rights of refugees and asylum seekers. The first section sets out the most relevant international and regional instruments; the second how these apply to the entry of asylum seekers, their detention, their right to family life and their right to an effective remedy.

International instruments in addition to the Geneva Convention The Universal Declaration of Human Rights

Chief of these other instruments is the Universal Declaration of Human Rights,3 adopted by the General Assembly of the United Nations as 'a common standard of achievement for all... nations, to the end that every . . . organ of society . . . shall strive . . . to secure their universal and effective recognition and observance'.4 By article 14 of that Declaration, one of these rights is 'the right to seek and to enjoy in other countries asylum from persecution', subject to restrictions in the case of 'prosecu-tions genuinely arising from non-political crimes and from acts contrary to the purposes and principles of the United Nations'.5

Article 14 does not provide for a right to receive asylum. Indeed, the word 'receive' was removed from an earlier draft during the course of the negotiations on the text. The omission of that word is significant, but it should not lead us to disregard article 14 altogether. The right to seek and enjoy asylum is not an empty phrase. For instance, a state may violate the right to seek asylum when it returns an applicant to the country whence he or she came without giving him or her an adequate opportunity to present his or her case and ii may violate the right to enjoy asylum when it accepts an individual as a refugee but imposes upon him or her excessive restraints such as unreasonable conditions of detention.

The right to seek and enjoy asylum is a universal right. The proclamation of that right in the Universal Declaration inspires and assists in the interpretation of the more specific instruments, concluded at the international level, Which may form the basis for individual claims before international tribunals or (where national law so provides) before national courts.

The International Covenant on Civil and Political Rights No right to receive, or even to seek, asylum was expressly incorporated into the International Covenant on Civil and Political Rights (ICCPR) 1966,6 even

though it had been included in the draft prepared by the Human Rights Commission in 1954. As in the case of the European Convention on Human Rights (discussed in the next section of this chapter), the proposal to include such a right in the ICCPR was rejected as incompatible with the sovereign power of states to decide whether to admit or exclude aliens from their territory.7

The UN Human Rights Commission nevertheless incorporated into the Covenant a provision which provides protection for aliens, lawfully in the territory of a member state, from being arbitrarily expelled from that country. Article 13 provides: An alien lawfully in the territory of a Slate Party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons

1 Geneva, 28 July 1951, 189UNTS 137,Cmd917I

2 New York, 31 January 1967, 606 UNTS 267, Cmnd 3906.

3 General Assembly Resolution 217 A (III) of 10 December 1948, 42 American Journal of International Law, 1949,

Supplement 127. 4 Ibid, preamble (emphasis added).

5 Ibid., article 14(2).

6 6ILM, 1967, p. 368

7 See Manfred Nowak, VNO-Paki iibcr biirgerliche und politische Rechte und I-akuhativpnuokoll -

CCPR Kommemar (N. P. F. ngel Verlag, Kehl, 1989), article 13/3-13/4.

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against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

The ICCPR has been ratified by 144 states as of 4 February 1999. Only six states have made reservations or interpretative declarations regarding the rights guaranteed by article 13.8 They include the United Kingdom which has entered a general reservation stating that article 13 as well as all other provisions of the Covenant shall not preclude immigration measures.9

The Convention Against Torture The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,10 adopted in 1984 and effective since 1987, contains one provision of interest to asylum seekers. Article 3 provides: 1. No State Party shall expel, return ('refouler') or extradite a person to another State where there are

substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purposes of defining whether there are such grounds, the competent authorities shall take

into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.11

The European Convention on Human Rights Like the ICCPR, no right to receive or even to seek asylum was included in the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950.12 It was not until 22 November 1984, when the Council of Europe adopted Protocol No. 7 to the European Convention on Human Rights, that the contracting parties undertook the obligation to refrain from the arbitrary expulsion of aliens from the territory of a contracting state where they are lawfully resident.13 As of 4 January 1999 this Protocol had been ratified by twenty-six states.

The European Social Charter The economic, social and cultural rights set out in the Geneva Convention have been incorporated into the 1961 European Social Charter14 by way of an Appendix entitled 'Scope of the Social Charter in terms of persons protected'. Paragraph 2 of that Appendix provides:

8 These states are Trance, Iceland, Malta, Mexico, Monaco and the UK. Finland withdrew a reservation

concerning article 1 3 in 1985 after legislation was amended to conform to the ICCPR. See also Human Rights Committee, General Comment No. 24(52) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 11 November 1994,CCPR/C/21/Rev.l/Add.6.

9 Nuala Mole,'Immigration and Freedom of Movement', in The International Covenant on Civil and Political Rights and

United Kingdom Law (ed. David J. Harris and Sarah Joseph; Clarendon Press, Oxford, 1995). 10

Adopted by the UN General Assembly and opened for signature on 10 December 1984 (Resolution 39/46); entered into force on 26 June 1987. As of 4 February 1999 there were 112 parties to the Convention.

11 This provision is not mirrored in the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS 126), which 'merely' sets up a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which is authorised to visit 'any place within [a party's) jurisdiction where persons are deprived of their liberty by a public authority' (article 2) with a view to strengthening the protection from torture provided inter alia by article 3 of the European Convention on Human Rights.

12 Adopted in Rome on 4 November 1950 and entered into force 3 September 1953, 40 parties as of 4 January 1999, 213 UNTS 221; ETS 5.

13 P.TS 117, entered into force 1 November 1988. Article 1 reads: 1. An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision

reached in accordance with law and shall be allowed: a. to submit reasons against his expulsion; b. to have* his case reviewed; and c. to be represented for these purposes before the competent authority or a person or persons designated by that

authority. 2. An alien may be expelled before the exercise of his rights under paragraph I a, b and c of [his article, when such expulsion is necessary in

the interests of public order or is grounded on reasons of national security. 14

Signed in Turin on 18 October 1961 and entered into force on 26 February 1965.

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High Contracting Party will grant to refugees as denned in the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951, and lawfully staying in its territory, treatment as favourable as possible, and in any case not less favourable than under the obligations accepted by the Contracting Party under the said Convention and under any other existing international instruments applicable to those refugees.15

These rights are therefore, indirectly, subject to the supervisory mechanism set up under the European Social Charter, which includes the examination of the two-yearly state reports16 by a Committee of Independent Experts.17 In 1996 a Revised European Social Charter18 with a comparable Appendix was agreed. It has since been signed by eighteen Council of Europe states and ratified by one but has yet to enter into force.

Other regional conventions Unlike the Universal Declaration, the European Convention on Human Rights and the ICCPR, the two major remaining regional human rights instruments, the 1969 American Convention on Human Rights19 and the 1981 African Charter on Human and Peoples' Rights,20 both contain an express right to seek and be granted or obtain asylum in another territory or country.

Article 22(7) of the former states: Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offences or related common crimes.21 Article 12(3) of the latter states: Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions.

Jurisprudence developed by the Inter-American human rights system includes notably the Hainan Interdiction v. United States case, in which the Inter-American Commission of Human Rights ruled that the US government's policy of interdicting Haitian boat people on the high seas had violated provisions of the American Declaration, including the right to 'seek and receive asylum'.22

Asylum seekers' right to enter The principle of non-refoulement

The general instruments governing the protection of human rights characteristically require contracting states to secure the extension of the rights in question to 'everyone within their jurisdiction'23 or to any person 'within [their] territory and subject to [their] jurisdiction'.24 Thus the

15 Article 38 of the European Social Charter stipulates that the Appendix 'shall form an integral part of it'.

16 ibid., article 21.

17 ibid., articles 24 and 25 (as amended by articles 2 and 3 of the Protocol amending the European Social Charter of 21 October 1991).

18 ETS 163

19 9 ILM, 1970, p. 673; OAS Treaty Series 36

20 21 ILM, 1982, p. 58.

21 The similarly worded article XXVII of the American Declaration of the Rights and Duties of Man adopted

by the Ninth International Conference of American states in Bogota, Colombia, in 1948 states: 'livery person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.' Although originally adopted as a non-binding resolution, the Inter-American Court of Human Rights has subsequently confirmed the American Declaration as an authoritative interpretation of the references to human rights in the Charter of the Organisation of American States (OAS). See also Scott Davidson, 'The Civil and Political Rights Protected in the Inter-American Human Rights System' in The Inter-American System of Human Rights (ed. David J. Harris and Stephen Livingstone, Clarendon Press, Oxford, 1998), especially pp. 227-80.

22 Case 10.675, Report No. 51/96,13 March 1997, 5 IHRR, 1998, pp. 120-65.

23 European Convention on Human Rights, article 1. In Application No. 1611/62, X. v. Federal Republic of

Germany, decision of 25 September 1965, 8 Yearbook of the European Convention on Human Rights, 1965, p. 158, the Commission stated at p. 168:

Whereas in certain respects, the nationals of a Contracting State are within its 'jurisdiction' even when ... abroad; whereas, in particular, the diplomatic and consular representations of their country of origin

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state continues to enjoy, subject only to very specific exceptions,25 the sovereign right to exclude or admit an alien to its territory. In general, the question of a person's human rights arises only once he or she has entered the territory of a contracting party. However, the European Commission and Court of Human Rights have now made it clear that the phrase 'within their jurisdiction' includes responsibility for the acts of visa officials in an overseas embassy,26 of officials in the international zone of airports27 and for the acts of their authorities whether performed inside or outside their national boundaries.28

Furthermore, aliens unlawfully present enjoy the protection of the international machinery for the protection of human rights, to the extent that this protects them from forcible return to countries where they face the risk of persecution. In the well-known terms of the Geneva Convention, the protection so afforded is expressed in the principle of non-rcfoulcmcm. As will be seen the emerging jurisprudence of the European Commission and Court of Human Rights makes it clear that aliens unlawfully on the territory may also be protected from expulsion if they would face exposure to torture or inhuman or degrading treatment, or if the act of expulsion would itself constitute torture or inhuman or degrading treatment.29

The Committee Against Torture In an early decision upon this issue, following a complaint made against Switzerland, the Committee Against Torture set out the principles to apply when considering whether the expulsion of an asylum seeker would violate article 3 of the Convention Against Torture: The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a person would be in danger of being subjected to torture upon his return to that country; additional grounds must exist that indicate that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his specific circumstances.30

In finding that there were substantial grounds for believing that the applicant would be in danger of being subjected to torture, the Committee had regard, inter alia, to reports on the human rights situation in the applicant's home country (Zaire) prepared by the UN Secretary-General and the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the UN Special Rapporteur on Torture and the UN Working Group on Enforced or Involuntary Disappearances. Moreover, the Committee considers that, in view of the fact that Zaire is not a party to the Convention, the [applicant] would be in danger, in the event of expulsion to Zaire, not only of being subjected to torture but of no longer having the legal possibility of applying to the Committee for protection.31

Since the decision in Mutombo, other important points have emerged from the jurisprudence of the

perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention

24 ICCPR, article 2.

25 The rules applicable in those circumstances relate in particular to the right of non-discrimination, the

prohibition of inhuman treatment and respect for family life. See UN Human Rights Committee, General Comment No. 15(27) (The Position of Aliens under the Covenant) of 22 July 1986, CCPR/C/21/Rev. I/Add. 5,para_5 26

X. v. Federal Republic of Germany, judgment, p. 168. 27

Amuur v. France, Application No. 19776/92, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-IH; 22 EHRR, 1996, p. 533.

28 Loizidou v. Turkey (Preliminary Objections) Case No. 40/1993/435/514, judgment of 26 June 19Q5, Series A, No. 310.

29 See eg H. I. R. v. France, Application No. 11/1996/629/81 3, judgment of 29 April 1997, Reports of

Judgments and Decisions, 1997-111; D. v. UK, Application No. 30240/96, judgment 2 May 1997, Series B, No. 37.

30 Balabou Mulombo v. Switzerland, Communication No. 13/1993, decision of 27 April 1994 at para. 9.3.

31 Ibid., para. 9.6 (emphasis added). (Since this ruling Zaire has become a party to the Convention Against Torture.)

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Committee. In particular in the case of Kisoki v. Sweden,32it noted that it was normal for people who have been tortured to disclose only piecemeal the detailed story of their experiences and suggested that this should not of itself damage an asylum claimant's credibility. In Ismail Alan v. Switzerland33 the Committee considered the question of the feasibility of an internal flight alternative and found that such an alternative was not available to the applicant in Turkey.34

The European Convention on Human Rights A similar protection against non-rcfoulement has been developed by the European Commission and Court of Human Rights in its jurisprudence under article 3 of the European Convention on Human Rights. Article 3 provides: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'

In its decision in Soaring v. UK,35 which concerned the extradition of the applicant from the UK to the United States where he could have been subject to the death penalty, the European Court of Human Rights established that, in cases of extradition, states parties have an inherent obligation towards individuals who, if extradited, would face a real risk of being exposed to torture, inhuman or degrading treatment.36 At that time the UK was not a party to the 6th Protocol37 of the European Convention (which outlaws the death penalty) so the matter had to be considered in the context of the death row phenomenon. For those states which arc parties to the 6th Protocol it seems that an expulsion or extradition to face the death penalty would, ipso facto, be a breach of the Protocol.38 The Commission found admissible under article 2, which protects the right to life, the question of expulsion to face the risk of death in the cases of D. v. UK39 and Bahaddar v. Netherlands40 but went on to examine the com-plaints only under article 3. The Commission in its report in Bahaddar considered that although there may be circumstances under which it would be appropriate to consider expulsion under article 2, it chose to look only to article 3. The Court reiterated the principle in Soering in relation to expulsions not involving extradition in Cruz Varas v. Sweden41 and Vdvarajahv. UK.42

For many years respondent governments nevertheless continued to assert that the Convention had no application to expulsion cases. In Chahal v. UK,43 the UK government abandoned the objections which it had maintained before the Commission and eventually accepted the applicability of the Convention in its pleadings before the Court. The case concerned the UK's proposal to deport to India an Indian national accused of committing and plotting acts of terrorism, including involvement in a plot to assassinate prime minister Rajiv Gandhi, in support of Sikh separatists in Punjab. In that case, both the Commission44 and the Court45 rejected the UK's contention that states parties are liable for torture,

32 Communication No. 41/1996; 8 International Journal of Refugee Law, 1996, p. 651.

33 Communication No. 21 /1995; 8 International Journal of Refugee Law, 1996, p. 440.

34 See also Tola v. Sweden, Communication No. 43/1996; 5 IHRR, 1998, p. 113; and Aemtv. Switzerland, Communication No.

34/1995. See also the judgment of the European Court of Human Rights on 30 October 1997 in the case of Paez v. Sweden (18/1997/802/1005) where the Court took into account the fact that the applicant's brother's complaint had been upheld by the Committee Against Torture. 35Soering v. UK, judgment of 7 July 1989, Series A, No. 161; 11 EHRR, 1989, p. 439. 36

Ibid. para. 91. 37

ETS 114. The UK has since signed the 6th Protocol on 27 January 1999. 38

Aylor-Davis v. France, 76A Decisions and Reports, p. 164. In that case assurances had been given by the state of Texas that the death penalty would not be sought. See also Raidlv. Austria, Application No. 25342/94 (1995), 82A Decisions and Reports, p. 134. 39

D. v. UK, Application No. 30240/96, Commission Report adopted 15 October 1996. 40

Bahaddar v. Netherlands, Application No. 25894/94, Commission Report adopted 13 September 1996.

41 Application No. 46/1990/237/307, judgment of 20 March 1991, Series A, No. 201, 14 EHRR, 1991,p. 1.

42 Application No. 45/1990/236/302-306, judgment of 30 October 1991, Series A, No. 215, 14 EHRR, 199I,p.248. I

43 Application No. 22414/93, CommissionVeport adopted 27 June 1995; Court judgment of 15 November 1996, Reports of Judgments and Decisions, 1996-V, paras. 72-82; 23 EHRR, 1997, p. 413. For further details of this case as considered in the English courts see chapter 6 below.

44 ibid.,para. 101, quoting a passage from Vilvarajah v. UK at para. 103.

45 Chahal judgment, paras. 72 82.

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inhuman or degrading treatment only if this is inflicted within their own jurisdiction. In its 1996 judgment the Court of Human Rights held: The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to A article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion . . . In these circumstances the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.46

The Court's point requires reiteration. Unlike the 1951 Convention, article 3 of the European Convention does not provide for nor allow any restriction as to who is protected. It is also non-derogable47 It is therefore not restricted to those persecuted on grounds of race, religion, nationality, membership of a particular social group or political opinion'.48 Furthermore, there is no provision for the exclusion of those who have committed a 'serious non-political crime outside the country of their refuge'.49 As the European Court of Human Rights had previously made clear in the Soering case, the protection of article 3 applies to everyone, 'however heinous the crime allegedly committed'.50 Nor is here a provision permitting the exclusion of any person 'whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country''51 On the contrary the European Convention organs have now held in a series of cases52 that this is not a material consideration. The European Court of Human Rights laid down the test for what constitutes 'a real risk of treatment contrary to Article 3' in Cruz Varas v. Sweden. It ruled: The ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative. It depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, us duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.53

This ill-treatment need not take the form of deliberate persecution at the hands of agents of the state from which the refugee fled. The Commission has had occasion in a number of cases to consider danger which did not emanate from the authorities of the state of origin, but had until recently not found it necessary to rule on the point because oflack of evidence.54

In the recent case of Ahmed v. Austria55 the Commission expressly found that the absence of state

46 Ibid, para. 80 (emphasis added).

47 Article 15 of the European Convention on Human Rights provides:

1. In time of war or other public emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in relation to deaths resulting from lawful acts of war, or from Articles 3,4 (paragraph 1) and 7 shall be made under this provision.

48 Geneva Convention, article 1 (A)

49 Ibid., article 1(F).

50 Soering judgment, para. 88, quoted below; see also Chahal judgment, paras. 104-5.

51 Geneva Convention, article 33(2).

52 Ahmed \. Austria, Application No. 25964/94, judgment of 17 December 1996, Reports of Judgments and Decisions, 1996-V1; 24 EHRR, 1997, p. 278; Chahal v. UK; H. L. R. v. France.

53 Cruz Varas judgment, paras. 75, 76 and 83; see also Vilvarajah judgment, p.iras. 107-8 and the Commission report in

Chahal, para. 107. 54

Nasri v. France, Application No. 19465/92, judgment of 1 3 July 1995 Series A, No. 320B; 21 EHRK, 1995, p. 458; Ahmed v. Austria; H. L. R. v. Frame; D v. UK. 55

Ahmed judgment, para.46.

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authority in Somalia was immaterial to the issue which arose under article 3. The judgment of the Court in the same case did not specifically refer to the point but did not dispute the Commission's view and went on to uphold its finding of a violation. In the case of H.L.R. v. France,56 the French government sought to argue before both the Commission and the Court that, as the UN Torture Convention expressly provided that the state authorities must be responsible for the ill-treatment, the European Convention should be interpreted in this way too. The Court in Chahal considered the assurances of the Indian government to the effect that the applicant 'would enjoy the same legal protection as any other Indian citizen and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities' but ultimately found that such assurances did not provide Chahal with adequate guarantees of safety. In H. I.. R. v. France, the Court upheld the Commission's view that the threat did not have to emanate from agents of the state, but found no violation on the facts of the case. The judgment in D. v. UK has settled the matter once and for all. It was accepted by all parties that the government of the state of destination could not be held responsible for the destitution that the applicant would face if returned, but the Court nevertheless found that his expulsion would be a violation of article 3.57

Article 3 also applies to the case of the so-called 'refugee in orbit'. In its report in the case of Harabiv. The Netherlands,58 the Commission, following an earlier admissibility decision,59 held: that the repeated expulsion of an individual, whose identity was impossible to establish, to a country where his admission is not guaranteed, may raise an issue under Article 3 of the Convention ... Such an issue may arise, a fortiori, if an alien is over a long period of time deported repeatedly from one country to another without any country taking measures to regularise his situation60

Unlike the 1951 Convention which applies only to persons outside their country of nationality,61 the circle of protected persons under article 3 of the European Convention on Human Rights can include those dependent relatives of the asylum seeker who, in consequence of his or her deportation, are effectively forced into exile and are faced with a serious threat of torture or of inhuman or degrading treatment. In the case of Fadcle v. UK,62 the Commission declared admissible a complaint under article 3, where the UK denied the Nigerian father of three British children the right to come to the UK to settle with his children. They complained that to make the children change their lifestyle radically by forcing them to join their father in extremely poor living conditions in Nigeria, rather than allow him to settle with them, would result in the UK breaching article 3.63 No decision on the merits was ever reached as the case was settled through the good offices of the Commission.64

The International Covenant on Civil and Political Rights Article 7 of the Covenant contains a similar prohibition on torture and adds 'cruel' to inhuman or degrading as prohibited treatment or punishment. The Human Rights Committee, like the European Convention organs, has interpreted this to include a prohibition on expulsion to face such treatment. In its second General Comment on article 7, the Committee stated: 'States parties must not expose individuals to the danger of torture or cruel or inhuman or degrading treatment or punishment on return to another country by way of their extradition, expulsion or refoulcmcnt?65 The case law of the Committee under the Optional Protocol on this aspect of article 7 has largely been devoted to extradition issues, and in particular to the situation of an individual facing the imposition of

56 H.L.R. judgment, para. 32.

57 D .v. UK judgment, paras. 52-4.

58 Harabi. Netherlands, Application No. 10798/84, 46 Decisions and Reports, p. 112.

59 Giama v. Belgium, Application No. 7612/76, Yearbook of the European Convention on Human Rights, 1980, p. 428; 21

Decisions and Reports, p. 73. 60

Harabi. Netherlands,p. 116 61

Article 1A(2). 62

Fadele v. UK, Application No. 13078/87, 70 Decisions and Reports, p. 159. 63

Ibid.,p. 161, para. 8. 64

The settlement took the form of the father being issued with an entry clearance for settlement and the UK government paying both the air fare for the whole family as well as the legal costs actually and reasonably incurred: ibid., para. 12.

65 Human Rights Committee, Genera! Comment No. 20(44) (article 7), CCPR/C/ 21/Rev.l/Add.3,para. 9.

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the death penalty if convicted on return. In Kituilcr v. Canada,66 the Committee held: '[A] state party would itself be in violation of the Covenant if it handed over a person to another state in circumstances in which it was foreseeable that torture would take place. The foreseeability of the consequence would mean that there was a present violation by the state party even though the consequence would not occur until later.'

Detention of asylum seekers The detention of asylum seekers, whether made before a decision to admit the asylum seekers as refugees or under some other status, or prior to expulsion or return, raises a series of issues under international human rights instruments.

The legality of the detention of asylum seekers under the European Convention on Human Rights

Article 5(1) of the European Convention on Human Rights provides: No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f.) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the

country or of a person against whom action is being taken with a view to deportation or extradition. In Lynas v. Switzerland,67 the Commission established that, although there is no right not to

be extradited or expelled under the Convention, only the existence of extradition (or deportation) proceedings are capable of justifying the deprivation of liberty under article 5(l)(f).68 Therefore, where such proceedings are not conducted with 'due diligence' or where the detention results from a misuse of authority the detention ceases to be so justified. These principles were reiterated in the Commission's decision in X. v. UK.69 In that case, however, it was found that the delay in the deportation proceedings was caused by the applicant's own conduct and the complicated nature of the procedure and that there was, therefore, no lack of diligence which rendered the detention unlawful.

In Caprinov. UK,70 the Commission stated that the term 'prescribed by law' in article 5(1) has to be read as 'lawful under the applicable domestic law', which includes EC law, in that case specifically EC Directive 64/221 'on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health'.71

The Commission, however, went on to hold that, having considered whether the detention was 'prescribed by law', it was necessary to determine separately whether the detention was necessary to secure the deportation of the applicant. In doing so it recalled that article 5(l)(f)j as an exception to the general right to liberty and security of person, had to be interpreted strictly.72 However, it was sufficient that 'action is being taken against him with a view to deportation73 and the eventual outcome of the deportation proceedings was irrelevant in the determination of whether the detention was 'necessary'. In the instant case the Commission found that the relationship between the detention and the deportation were adequate to justify the detention under article 5(l)(f)- This was reiterated in the

66 Kindlcr v. Canada, Communication No. 470/1991

67 Application No.7317/75, 6 Decisions and Reports, p. 141.

68 In the context of the ICCPR the Human Rights Committee held that detention pending deportation did qualify as

deprivation of liberty under article 9(1): sec Communication No. 155/1983 Hammelv. Madagascar and, despite submissions by the Canadian government to the contrary, Communication No. 236/1987, VMRBv. Canada at paras. 4.4 and 6.3; see Nowak, CCPR Kommemar, article 9/23.

69 Application No. 8081/77, 12 Decisions and Reports, p. 207, which concerned a ten-month delay in

deportation proceedings before the Immigration Appeal Tribunal. 70

Application No. 6871/75, 12 Decisions and Reports, p. 14. This case concerned the deportation of an Italian national on grounds that it was 'conducive to the public good1 under the Immigration Act 1971.

71 OJ Special Edition, 1963^1, No. 850/64, p. 117.

72 In this analysis the Commission further relied on article 18 of the Convention which stipulates: 'The

restrictions permitted under this Convention to the said rights shall not be applied for any purpose other than those for which they have been prescribed." 73

Caprino v. UK, Application No. 6871/75, 12 Decisions and Reports, p. 14 at p. 20.

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substantive decision in this case, where the Commission reaffirmed that detention under article 5(1 )(f) had to be subject to principles such as necessity and proportionality.74

The European Court addressed this issue in its judgment dated 15 November 1996 in Chahal.75 In that case the appellant had been detained for six years: the longest detention ever effected under the immigration laws of the UK. It was not disputed that he had been detained 'as a person against whom action is being taken with a view to deportation' within the meaning of article 5(l)(0- It was, however, contended that his detention had ceased to be 'in accordance with a procedure prescribed by law' because of its excessive duration. The Commission had found that five years was excessive and that the proceedings had not been pursued with the requisite speed. It also noted that there had been no abuse of the judicial review process by the applicant in order to delay his deportation. The Court did not uphold the position of the Commission. It noted that Chahal's case involved very serious issues. It was neither in the interests of the individual nor in the general public interest that such decisions should be taken hastily. Bearing in mind the fact that the applicant had availed himself of several legal remedies, including judicial review, appeal and petition to the House of Lords as well as submissions to a special tribunal established to deal with cases of national security, the time taken was not to be considered excessive.

Judicial control of the legality of the detention under the European Convention Article 5 of the European Convention on Human Rights provides: (1) No one shall be deprived "fhis liberty save ... in accordance with a procedure prescribed by law. (4) F.vcryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings

by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

In Caprino v. UK, the Commission emphasised that article 5(4) is a provision separate from article 5(1).76 The same proposition appears from the constant jurisprudence of the European Court of Human Rights.77 The necessity for a speedy decision by a court is of particular importance where the decision to detain is taken by an administrative body. In declaring the application admissible, the Commission indicated that judicial review proceedings, which enable the applicant to challenge only the legality and not the merits of the decision, may be insufficient for the purposes of article 5(4).78 In its decision on the substance of that case79 the Commission held that judicial proceedings under article 5(4) must include a review of the substantive grounds of the detention.80

The European Court reverted to the theme in Chahal.81 The issue arose in a particularly acute form in that case since the applicant had been accused of very serious crimes of terrorism (though no conviction had been upheld), such that the government alleged that it was not possible to disclose to him fully the confidential information obtained by the UK authorities. They noted that he had been given access to

74 Caprino v. UK, Application No. 6871 /75, 22 Decisions and Reports, p. 5.

75 Chahal judgment, paras. 108-17.

76 Caprino v. UK, Application No. 6871/75, 12 Decisions and Reports, p. 21.

77 Kolomparv. Belgium, judgment of 24 September 1992, Series A, No. 235C, para. 45; DeW\\de,Ooms and Vcnyp v.

Belgium, judgment of 18 June 1971, Series A, No. 12, para. 73. 78

However, in its recent decision in Chahal v. UK, the majority of the Commission formed the view that it was not necessary for it to consider the complaint under article 5(4), as the question of the adequacy of the remedies available was more appropriately dealt with under article 13 (see below) and the question as to the speediness of the proceedings under article 5(4) was resolved by its finding that the duration of the detention of the applicant violated article 5(1 )(f) (Application No. 22414/93, at paras. 124-9). In his partially dissenting opinion, Trechsel took issue with this conclusion on two grounds: (i) the decision on the duration of the detention did not deal with the adequacy of habeas corpus proceedings, in particular as the need for article 5(4) control was 'particularly acute' whenever problems arose under article 5(1); and (ii) that this conclusion was not in conformity with the case law of the European Court of Human Rights (Application No. 22414/93, at p. 33); in relation to point (ii) Trechsel particularly referred to the Court's decision in Bouamar v, Belgium (judgment of 29 February 1988, Series A, No. 129), in which a violation of both article 5(1) and 5(4) was found. 79

Caprino v. UK, Application No. 6871/75, 22 Decisions and Reports, p. 5. 80

Article 5(4) only relates to remedies available during the detention and does not, therefore, cover possible actions for false imprisonment which may be brought after the detention has ceased 81

Chahal judgment, paras. 124-33, especially para. 131

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an advisory panel, under the chairmanship of a very senior judge, to review the merits of his case; and that he had pursued judicial review as far as the House of Lords. This, the European Court of Human Rights held, was not sufficient. It acknowledged that the use of confidential material may be unavoidable where national security is at stake; but according to the Court this did not mean that national authorities can be free of effective judicial control where national security is an issue. The Court considered that there are techniques that can be employed which accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice. The UK procedures did not match the standard required by the Convention. Accordingly, there was a breach of article 5(4). Interestingly, the Court did not, however, find it necessary to award compensation for this breach, even though article 5(5) provides for an enforceable right to compensation for everyone who has been a victim of arrest or detention in contravention of any of the provisions of article 5. The European Committee for the Prevention of Torture has made a special point of visiting immigration detention centres, as indicated in paragraph 28 of the Amnur judgment.

The International Covenant on Civil and Political Rights

The provisions of the ICCPR concerning detention are more explicit than those of the European Convention on Human Rights. Articles 9(1) and (4) of the ICCPR provide: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or

detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Like the European Convention on Human Rights, article 9(5) of the ICCPR also provides an enforceable right to compensation where a person has been the victim of unlawful arrest or detention.

The Covenant also expressly imposes positive obligations on states in article 10(1) to the effect that '(a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person'. This is generally seen as providing for a duty on the contracting state to provide detention conditions which are humane and which secure respect for the dignity of the detained. This can be contrasted with article 7 of the ICCPR or article 3 of the Huropean Convention on Human Rights which only oblige states to refrain from subjecting a person to inhuman or degrading treatment. This positive obligation exists irrespective of the material resources of the contracting slate in question.82

The UN Human Rights Committee in its General Comment 8116 (personal liberty) stressed that article 9(4), 'the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention'.83 This is in addition to a contracting state's obligation to provide an effective remedy under article 2(3) (the ICCPR equivalent to article 13 of the European Convention on Human Rights).

Also, if so-called preventive detention is used for reasons of public security, it must be controlled by these same provisions, that is, it must not be arbitrary, and must be based on grounds and procedures established by law (article 10(1)), information on the reasons must be given (article 10(2)) and court control of the detention must be available (article 10(4)) as well as compensation in case of a breach (article 10(5)).84

82 Human Rights Committee, General Cnmmcni 9116 (article 10) in General Comments, GCPK/C/2 I/Rev. 1 of 19 May

1989,pp. 8 9. 83

Human Rights Committee, General Comment SI 16 (article 9), ibid., pp. 7-8, para. I. 84

Ibid., para. 4; a violation of article 9(4) was found in relation to the case of Hamwel v. Madagascar, Complaint No. I5V1983 at para. 20. In that case a French national was arrested and held in incommunicado detention for three days and then expelled. As he was not afforded the opportunity to challenge the expulsion order priono his expulsion, a violation was found.

91

The Committee in its General Comment 9116 states that ultimate responsibility for the observance of the principle of humane treatment of detainees rests with the state in respect of all institutions where persons are lawfully held against their will, including detention camps, hospitals etc.85 This was reiterated in the recent Comments of the Human Rights Committee on the fourth UK Periodic Report86 where the Committee stressed: The Committee is concerned that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the Covenant. The Committee stresses that the State remains responsible in all circumstances for adherence to all articles of the Covenant.87 It will also be recalled that the Committee expressed its concern about the treatment of illegal immigrants, asylum seekers and those ordered to be deported and the use of detention and the duration of such detention of persons ordered to be deported.88

The right to family life The European Convention on Human Rights Article 8 of the European Convention on

Human Rights provides: 1. Everyone has a 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 and morals, or for the protection of the rights and freedoms of others. Article 8(1) protects the 'famille naturelle' and does not make a distinction between a 'legitimate family'

and 'illegitimate family' in respect of its definition of'family life'.89 This includes the right of spouses90 and children to be given the opportunity to live together, even if a family life 'has not yet been fully established'.91 Family life as such includes cohabitation by those concerned.92 The Court even went so far as to state that:

In the Court's opinion 'family life', within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life. 'Respect' for family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally.93

On the other hand: Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties.94

However, the Court in Abdulaziz established that: The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country. In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their

85 General Comment 9116, para. I.

86 27]uly 1995, UN Doc. CCPR/C/79/Add.55.

87 Ibid., para. 16.

88 Ibid., para. 15.

89 European Court of Human Rights in Marckx v. Belgium, Series A, No. 31 at para. 31.

90 That is, relationships arising from a lawful and genuine marriage

91 European Court of Human Rights in its judgment of Abdulaziz v. UK, Series A, No. 94 at para. 62.

92 See also article 12 (right to found a family). It appeared to the Court in Abdulaziz that it was 'scarcely conceivable that the

right to found a family should not encompass the right to live together' (para. 62). 93

Marckx judgment, para. 45 94

Commission in Application No. 10375/83, .9. and S. v. UK, 40 Decisions and Reports, p. 1 9(> at p. 1 98.

92

husbands' home countries or that there were special reasons why that could not be expected of them.95 Whether or not there has been an interference will thus depend on whether it is reasonable to expect

people to conduct their family life elsewhere. In Giil v. Switzerland,96 the Court found that there was no interference when a Kurdish child was refused permission to join his sister and parents in Switzerland. The father was an asylum seeker who had not pursued his asylum appeal some years previously because he and his wile had been granted humanitarian leave to remain in Switzerland on account of the wife's life-threatening condition. Although the younger child was still in residential foster care near her parents in Switzerland, and the Swiss authorities had not sought to argue that the mother's condition had improved sufficiently for the parents to return to Turkey, the Court nevertheless found that it was reasonable to expect them to do so and that there was thus no interference under article 8(1).

Even if an interference with family life under article 8(1) has occurred, this interference may be justified on the grounds set out under article 8(2). To be so justified the interference has to be in accordance with law; it must pursue one of the 'legitimate aims' listed in article 8(2) and it must be necessary in a democratic society.

In Cliahal, the Commission found a violation of article 8 on the ground that the interference with the applicant's right to family life was disproportionate and therefore not necessary in a democratic society. The applicant in that case had been resident in the UK for nineteen-and-a-half years and his wife for nineteen years; they had two teenage children, both born and brought up in the UK. On that basis the Commission concluded that deportation of the applicant 'would almost certainly lead to a permanent break up of the family'.97 The Court, however, found it unnecessary to deal with the issue.98 In the case of Nasri v. France99 the Court ruled that a deaf mute's medical condition made his family connections particularly important to him and that his deportation for serious criminal offences could not be justified.100

The International Covenant on Civil and Political Rights The right to protection from interference of family life is set out in article 17 of the ICCPR which states: 1. No one shall he subjected to arbitrary or unlawful interference with his privacy, family, home

or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interferences or attacks. In interpreting this right the Human Rights Committee has established that the term 'family' has to be given 'a broad interpretation to include all those comprising the family as understood in the society of the State party concerned'.101 The Committee has held: '[T]he exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of Article 17(1). In principle article 17(1) applies also when one of the spouses is an alien.102

However, where the members of a family had been separated for seventeen years, the Committee held that there was no family life and the contracting state was under no obligation to take positive steps to facilitate the re-establishment of family life.103

The Covenant, in article 23(1), also contains a right of the family to enjoy protection 'by society and the State'104 In the case of Aumeeruddy-Cziffra v. Mauritius,105 the UN Human Rights Committee held

95 Ibid., para. 68

96 Gl v. Switzerland, Application No. 23218/94, Case No. 53/1995/559/645, judgment of I') February 1996, Reports of

Judgments and Decisions, 1996-1; 22 HHRR, 1996, p. 93. 97

Chahal, Commission report adopted 27 June 1995. 98

Chahal judgment, para. 139. 99

Nasri v. France, Series A, No. 324 100

The Court chose not to consider the question of whether his expulsion would be in breach of article 3. 101

Human Rights Committee, General Comment 16/32 (article 17), CCPR/C/21/Rev.l, 19 May 1989, pp. 19-21, para. 5. 102

Aumeeruddy-Cziffra v. Mauritius, Communication No. 35/1978, para. 9.2(b). 103

A. S. v. Canada (Polish Canadian Case), Communication No. 68/1980. 104

Article 23(1) reads: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 105

Communication No. 35/1978

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that a policy which restricted the access of foreign spouses of Mauritian women to Mauritius but did not restrict the access of foreign spouses of Mauritian men was in breach of article 2(1) in conjunction with article 23(1).""" It reasoned that there had been discrimination in the way in which the protection of article 23(1)106 was afforded to a family depending upon whether the Mauritian partner was a man or a woman.107

The UN Convention on the Rights of the Child The special protection of the parent child relationship recognised by the European Convention on Human Rights jurisprudence has been reinforced by the UN Convention on the Rights of the Child.108 Under this Convention special protection is provided for refugee children. Article 22 of the Convention provides: 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is

considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention, (emphasis added) The protection as required by article 22(2), second sentence, includes 'special protection and

assistance provided by the State',109 provision of 'alternative care',110 including, for example, 'foster placement'.111 This protection for the child is not dependent on the legal presence of the child within a state party's territory but merely on the fact that it is seeking refugee status or is considered a refugee under inter alia the 1951 Geneva Convention.

Furthermore, article 9 provides that: ... a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child, (emphasis added)

This protection of a child's family is reinforced by article 10 of the Convention which provides that applications by children or their parents to enter or leave a state party for the purpose of family reunification shall be dealt with by the state party in a 'positive, humane and expeditious manner'.

However, unlike the European Convention on Human Rights and the ICCPR, the Convention on the Rights of the Child docs not make provision for either inter-state complaints or for the right to individual petition. The compliance with the obligations undertaken by the states party to the Convention is solely monitored by periodic state reports which are considered by the Committee on the Rights of the Child.112

The right to effective remedy The European Convention on Human Rights Article 13 of the European Convention on

Human Rights provides: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy

106 The relevant rules were also held Co have been in breach of article 3 (equal rights of men and women) and article 26 (equality before the law and prohibition of discrimination).

107 Sec Alfred de Zayas, Jakob Moller and Torkel Opsahl, 'Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee' (reprint in 28 German Yearbook of International Law, 1985), pp. 9-64.

108 UN Doc. A/RES/44/25. Adopted and opened for signature by the UN General Assembly (Resolution 44/25) on 20

November 1989 and entered into force on 2 September 1900. As of 4 February 1999 it had been ratified by 191 states (including all UN member states except Somalia and the USA). 109

Ibid., article 20(1). 110

Ibid., article 20(2). 111

Ibid., article 20(3). 112

Such reports have to be submitted to the Committee in five-yearly intervals: article 44(1).

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before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. In order for article 13 to come into play it is not required that a violation of a right under the Convention has been found: it is sufficient that the applicant has an 'arguable claim' that such a violation has occurred113 Furthermore, article 13 does not require access to a court but merely to a 'national authority', as long as that authority is 'sufficiently independent' of the decision-maker.114 In the case of Uppalv. UK,115 the Commission held that recourse to an adjudicator and the Immigration Appeal Tribunal constituted an effective remedy under article 13, as they are 'empowered under the Immigration Act 1971 to review and reverse the Home Secretary's decision'.116

However, article 13 does not apply where the violation of the applicant's rights has been committed by way of legislation,117 nor where the violation has been committed by a court of law.118 Furthermore, article 13 docs not create an obligation for a contracting state to incorporate the European Convention on Human Rights into national law. Wrjcre the Convention has not been incorporated, however, there is a presumption that no effective remedy is available where the violation has been committed by secondary legislation.119

On a number of occasions a question has arisen whether an application for judicial review constitutes an effective remedy under article 13. In the judgments of the Court in Soeriiigv. UK,120 Vili-anijah v. UK121 and D. v. UK122 the Court found that judicial review proceedings constituted an effective remedy. The decision in Soaring is more easily comprehended than that in Vilvarajah, as there was no evaluation of evidence in the former case. In Soaring the applicant and the Home Secretary were not in dispute as to the treatment that the applicant would face if returned to Virginia: their dispute concerned the reasonableness of the decision to return him in circumstances known to exist. In the case of Vilvarajah on the other hand the dispute between the parties was one of fact: the applicants complained that they were likely to be maltreated if returned to Sri Lanka, whereas the Home Secretary did not accept that contention. In their partly dissenting opinion in thai case, judges Walsh and Russo quoted passages by Lord Briphtman and the Lord Chancellor, Lord Hailsham, in the case of Chief Constable of North Wales Police v. Evans123 to the effect that judicial review was concerned not with the decision but with the decision-making procedure. On that basis they both concluded: [A] national system which it is claimed provides an effective remedy for a breach of the Convention and which excludes the competence to make a decision on the merits cannot meet the requirements of Article 13.124

In Chahal the Commission and the Court took the view that nothing in the case of Vilvarajah required them to find out judicial review constituted an effective remedy in the case now before them.125 The Court in Chahal stated that in Vilvarajah they had accepted that a UK court would have jurisdiction to quash a decision to send a fugitive to a country if it had accepted that there was a serious risk of inhuman and degrading treatment, on the ground that the decision was one that no reasonable judicial review constituted an effective remedy in the case of D. v. UK where, unlike Vilvarajah, it had found a substantive violation of article 3.

The International Covenant on Civil and Political Rights The equivalent ICCPR provision to article 13 of the European Convention on Human

113 Silverv. UK, Series A, No. 61, para. 113.

114 Ibid , para. 116.

115 Application No. 8244/78,17 Decisions and Reports, p. 149.

116 Ibid., p. 157.

117 Commission in Young, James and Webster v. UK, Series B,No. 39, pp. 48-9.

118 The original Convention, article 6 (right to a fair trial), does not provide for a right of appeal (unlike article 14(5) of the

ICCPR). See Kuropcan Court of Human Rights judgment in Delcoun v. Belgium, Series A, No, 11, para. 25. Such a right has only been introduced by Protocol No. 7. 119

Silver judgment, para. 118. 120

Soenng judgment, paras. 116-24. 121

Vilvarajah judgment, paras. 123-4 122

D.v. UK judgment, paras. 69-73. 123

[1982] 1 WL.R 11 5. 124

Vilvarajah judgment, para. 3. 125

Chahal, Commission decision, paras. 149-51, Court judgment, paras. 140-55.

95

Rights is article 2(3), which stales: Each State Party to the present Covenant undertakes: a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an

effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

c) To ensure that the competent authorities shall enforce such remedies when granted.

The UN Human Rights Committee has, however, taken a different approach to the notion of effective remedy. The Committee's recent Comments on the fourth Periodic Report made by the UK126 stated that: The Committee notes that the legal system of the United Kingdom does not ensure fully that an effective remedy is provided for all violations of the rights contained in the Covenant. The Committee is concerned by the extent to which implementation of the Covenant is impeded by the combined effects of the non-incorporation of the Covenant into domestic law, the failure to accede to the first Optional Protocol and the absence of a constitutional Bill of Rights.

... The Committee also notes with concern that adequate legal representation is not available for asylum-seekers effectively to challenge administrative decisions.127

In Hammel v. Madagascar^, where the applicant was not given the opportunity to challenge his expulsion order, the Committee, in its analysis under article 13 of the ICCPR,128 found that there was no compelling reason of national security to deprive him of that remedy. Therefore, 'an alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all circumstances be an effective one'.129

126 UN Doc. CCPR/C/79/Add.55,27 July 1995.

127 Ibid., paras. 9 and 15 (last sentence).

128 See p. 82 above.

129 Communication No. 155/1983 at para. 19.2; see also Human Rights Committee, General Comment No. 15127.

Conclusion International instruments and mechanisms for the protection of fundamental human rights of aliens now constitute a substantial body of international legislation. The development of that legislation by international courts and tribunals, both in cases in which the individual has direct access and in those in which there is no such access, impose substantial restraints on the liberty of stales to take actions in respect of aliens: action which not long ago was regarded as the most untrammelled of the sovereign prerogatives of states. Those administering aliens law and those concerned with the protection of individuals must now keep abreast of this substantial body of new law: a body of law which regulates to a substantial degree the procedures connected with entry, refusal, stay, expulsion and detention.

While the ebb and flow of the refugee definition will continue to be of critical importance and merit analysis accordingly, the asylum seeker and refugee must also be positioned within a human rights framework which extends beyond the Geneva Convention. In many circumstances this framework has more to offer in terms of human rights protection.

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David J. Harris and Stephen Livingstone, Clarendon Press, Oxford, 1998) Mole, Nuala, 'Immigration and Freedom of Movement', in The International

Covenant on Civil and Political Rights and United Kingdom Law (ed. David']. Harris and Sarah Joseph, Clarendon Press, Oxford, 1995) Nowak, Manfred, UNO-Pakt

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22 July 1986,CCPR/C/21/Rcv.l/Add.5 General Comment No. 24(52) on issues relating to reservations made upon

ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 11 November 1994, CCPR/C/2 I/Rev. 1 /Add.6 de Zayas, Alfred, Jakob Moller and Torkel Opsahl,

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