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The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities

This article analyses the scope of the human rights of refugees in the ECHR looking at the latest trends in the jurisprudence developed by the Court and which are relevant to the protection of refugees. In doing so, it concentrates on the
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  THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF REFUGEES:LIMITS AND OPPORTUNITIES Hélène Lambert, School of Law, University of Exeter  1. INTRODUCTION Under international refugee law, a refugee is strictly defined as a person who“owing to well-founded fear of being persecuted for reasons of race, religion, na-tionality, membership of a particular social group or political opinion, is outsidethe country of his nationality and is unable, or owing to such fear, is unwilling toavail himself of the protection of that country”. 1 Persons recognised as refugeesunder Article 1A(2) of the Convention Relating to the Status of Refugees (Refu-gee Convention) have no reason to seek protection under the European Conven-tion on Human Rights (ECHR); they are protected against refoulement  and they are granted refugee status in domestic law. In particular, the Refugee Conventionprovides that refugees should be treated equally “as far as possible” to nationals.The benefit of the Refugee Convention is excluded altogether for persons whofall outside the definition provided in Article 1A(2). This is the case of persons whose claim for protection is based on reasons other than persecution on theRefugee Convention’s grounds. The benefit of the Refugee Convention is alsoexcluded altogether for persons with respect to whom there are serious reasons forconsidering that they are serious criminals and who therefore do not deserve sur-rogate protection. 2 Finally, the benefit of the principle of  non-refoulement  is lostto refugees who are found to be a danger to the security or the community of thecountry in which they are granted refugee status. 3 The legal definition of a refugee has no equivalent in human rights law. TheECHR applies to everyone, including refugees in the broadest sense of the word(particularly asylum-seekers, rejected asylum-seekers and refugees denied protec-tion on grounds of national security or public order). In this article, the term‘refugees’ refers to this broad category of people. Everyone can seek protection of their rights under the ECHR, provided they are present on the territory of a Con-tracting Party and the right in question is protected in the ECHR. An important jurisprudence has emerged granting basic rights to this broad category of refu-gees. The basic rights concerned can be divided into two categories. First, thoserights necessary for safeguarding refugees against expulsion. 4 Second, those rightsnecessary for safeguarding the basic rights of refugees present in the territory of a Contracting State. The first category of rights is now firmly established in the jurisprudence of the European Court of Human Rights (Court). To take threeexamples, in Chahal v. UK  the Court held that protection against refoulement   under Article 3 of the ECHR was wider than under the Refugee Convention Refugee Survey Quarterly, Vol. 24, Issue 2 © UNHCR 2005, all rights reservedDOI:10.1093/rsq/hdi025  Articles 40 because Article 3 provided an absolute and unconditional guarantee againstexpulsion and could thus be invoked by suspected terrorists. 5 In D. v. UK  , theCourt recognised that a lack of medical treatment in the country of return could,in very exceptional circumstances, prevent expulsion. 6 In Nasri v. France, theCourt found a violation of Article 8 if the expulsion of an Algerian deaf-mute(who had arrived in France at the age of 4) was to be carried out. 7 Thus, reasons of persecution as well as reasons of a more humanitarian and compassionate natureare a matter of human rights law when considering individual applications againstexpulsion. However, the protection of the second category of rights remains sub- ject to substantial gaps, in particular regarding rights of residence and standard of living. Nonetheless, this article argues that the ECHR provides tremendous op-portunity. New case-law regarding rights not necessarily involving refugees leadsto new conclusions in terms of the protection of refugees.This article analyses the scope of the human rights of refugees under theECHR looking at the latest trends in the jurisprudence developed by the Courtand which are relevant to the protection of refugees. In doing so, it concentrateson the determination of those rights by the Court, leaving aside issues of access tothose rights by refugees. 8 Its focus is primarily on the latest interpretation by theCourt of Article 3 (prohibition against ill-treatment), Article 6 (right to a fair andpublic hearing), Article 8 (protection of family and private life), Article 13 (effec-tive remedy), Article 14 (prohibition of discrimination), and Article 1 of Proto-col 7 (procedural safeguards against expulsion). 9 This analysis forms the core of the article with a first section on the protection of refugees against expulsion anda second section on the protection of the basic rights of refugees who are presentin the territory of a Contracting State. Finally, a brief conclusion summarizes thelimits and opportunities of the ECHR for the protection of refugees in Europe. 2. SAFEGUARDING THE REFUGEE AGAINST EXPULSION UNDER THE ECHR   Article 3 is by far the most relevant provision to be invoked by a refugee in thecontext of expulsion. 10 In such context, it is commonly the substantive part of  Article 3 that is relevant, that is, protection against ill-treatment. Strongly relatedto the protection under Article 3 is that afforded by Article 8 in cases of treatmentfalling short of the threshold set under Article 3. In addition, Article 8 has beenfound to be relevant in cases where expulsion would interfere with family unity,and Article 6(1) in cases where expulsion would result in a “flagrant denial of  justice” in the country of return. This paper ends with a discussion on the proce-dural guarantees against expulsion that are also provided by the ECHR, includingthe overlapping guarantee under Articles 3 and 13.  Alleged ill-treatment: the substantive requirements of Article 3   Article 3 prohibits torture, inhuman or degrading treatment or punishment.Based on the principle that the ECHR is a living instrument and that protec-tion under the ECHR must be effective and practical, the Court has held that  Refugee Survey Quarterly, Vol. 24, Issue 2 © UNHCR 2005, all rights reserved 41 Contracting States have “responsibility under Article 3 for all and any foreseeableconsequences of extradition suffered outside their jurisdiction”. 11 And “In so faras any liability is or may be incurred, it is liability incurred by the extraditingContracting State”, not by the country of destination. 12 Thus, the fundamen-tal importance of Article 3, read in conjunction with Article 1 (obligation tosecure to everyone within their jurisdiction the rights and freedoms defined inthe ECHR) led the Court to develop an obligation on States akin to the principleof  non-refoulement  . This obligation must be seen as a component of the moregeneral obligation of a State to do everything that it could reasonably have beenexpected to do to protect an individual from a harm of which it knew or oughtto have known. 13 For a breach of Article 3 to be found, reasonable grounds must exist thatexpulsion is going to take place certainly and imminently and the foreseeable con-sequences of the act of removal must be real and severe enough to amount to treat-ment contrary to Article 3. The applicant does not need to prove “beyond reason-able doubt” that the alleged ill-treatment has occurred, but rather that there existsa real risk that she will be exposed to such treatment if she is returned home. Suchprospective treatment would include torture, inhuman or degrading treatment orpunishment, although the distinction loses its importance in cases of expulsionbecause it is the act of expulsion that constitutes the “treatment”. As Blake notes,“The critical concept must be that of degrading treatment prohibited absolutely by Article 3”. 14 It is this concept of degrading treatment (or punishment) thatconstitutes the “minimum level of severity” necessary to activate Article 3. 15 Thetest applied by the Court combines both objective and subjective elements. 16 The Court summarised its understanding of the concept of “degrading treat-ment” in Pretty v. UK  . 17 It stated that  Where treatment humiliates or debases an individual showing a lack of re-spect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral andphysical resistance, it may be characterised as degrading and also fall withinthe prohibition of Article 3. The suffering which flows from naturally occur-ring illness, physical or mental, may be covered by Article 3, where it is, orrisks being, exacerbated by the treatment, whether flowing from conditionsof detention, expulsion or other measures, for which the authorities can beheld responsible... 18 In Peers v. Greece  , the Court specified that a violation of Article 3 may occur evenin the absence of the purpose to humiliate or debase the person in question. 19 Andin Ocalan v. Turkey  , the Court stated that it will consider whether the treatment inquestion “adversely affected his or her personality in a manner incompatible with Article 3”. 20 In short, degrading treatment, as opposed to inhuman treatment,causes feelings of gross humiliation in the person concerned. It does not need tocause actual physical harm.Looking at the specific situation of refugees, the direct consequences of anexpulsion order may entail the violation of Article 3 in three situations. The mostcommon situation is where a refugee is subject to an expulsion order to a country   Articles 42  where substantial grounds have been shown for believing that they would face areal risk of being subject to inhuman or degrading treatment or punishment. 21  The European Commission of Human Rights (Commission) accepted that theenforcement of an expulsion order that would result in subjecting the applicantto a risk of losing his eye sight in view of the inadequate facilities for treating himand possibly operating on him in the country of return, could in principle con-stitute a violation of Article 3. 22 It also recognised that extreme poverty and poorliving conditions in the country of destination may also raise an issue under Ar-ticle 3. 23 The Court took a more restrictive line in the landmark case of  D. v. UK. The Court recognised that the return of the applicant to his country of srcin would constitute inhuman treatment (in the form of acute mental and physicalsuffering) due to the lack of suitable care and treatment for someone in the finalstages of AIDS in the country of return. However it carefully stressed the “very exceptional circumstances” and the “compelling humanitarian considerations atstake”. 24 This ruling led the Court in Bensaid v. UK  to deny that Article 3 wouldbe violated if the applicant were to be returned to Algeria, because although ina serious medical condition, medical treatment would be available for him in Algeria. The Court thereby confirmed that it would exclude considerations thatare purely humanitarian unless they are absolutely exceptional. 25 The Court alsofound that the treatment that can be inflicted for certain offences under Sharialaw (such as, public stoning in Iran) constituted degrading (and sometimes alsoinhuman) punishment. 26 The second situation is where a refugee is subject to anexpulsion order but is in no physical condition to travel. Both the Commissionand the Court found that the expulsion of a refugee whose life is in danger atthe time of travel, for example, through hunger strike, could raise an issue under Article 3, irrespective of the applicant’s voluntary self-infliction of the danger. 27  However, the Court found no violation of Article 3 in the case of a nine-year oldbeing expelled with considerable haste and with all responsibility for her welfarebeing handed over to others as soon as she had left the territory. 28 The third situa-tion concerns the manner in which an expulsion is being carried out. So far, therehave been no rulings on the use of force by State’s authorities during forcibleexpulsion but the principles developed by the European Committee for the Pre-vention of Torture and Inhuman or Degrading Treatment of Punishment (CPT)and the Court in the context of detention should apply. 29 On two occasions only have the actual admission policies of the Contract-ing States raised an issue under Article 3. The first occasion relates to the ‘chain refoulement  cases’. The Commission and the Court have found that the repeatedremoval of an asylum seeker to States that refuse to take responsibility for themcould amount to inhuman or degrading treatment. 30 The second occasion in-volves the ‘discrimination cases’. Both the Commission and the Court have recog-nised that discrimination may, under certain circumstances, be so serious thatit constitutes in itself (and without reference to Article 14) degrading treatmentcontrary to Article 3. 31 The source of the treatment is irrelevant; it can emanate from State’s au-thorities or private individuals. In cases of non-States authorities, the burden of   Refugee Survey Quarterly, Vol. 24, Issue 2 © UNHCR 2005, all rights reserved 43 proof will be more onerous, in particular the applicant will need to show that theStates’ authorities are unable to alleviate the risk by providing appropriate protec-tion. 32 This requirement must nevertheless be set against the duty of States to takepositive action to ensure that individuals are not subjected to violations of theirrights under Article 3 at the hands of public authorities (for instance, through alegislative measure) or private individuals. 33 The circumstances giving rise to thetreatment are also irrelevant; the treatment can either be intentionally inflictedor not. However, when unintentionally inflicted, the Court will “subject all thecircumstances surrounding the case to rigorous scrutiny, especially the applicant’spersonal situation in the expelling State”. 34 The Court further requires that a per-son be singled-out from a situation of general violence by evidence specific tohis own circumstances 35 or that there exists in the country in question a consis-tent pattern of gross and systematic violation of rights under Article 3. 36 Finally,the conduct of the individual is irrelevant because Article 3 provides an absoluteand unconditional guarantee against torture, inhuman or degrading treatment orpunishment. 37 Thus the Court has developed an implicit duty of States to protect refugeesagainst refoulement  based on the consequences of expulsion measures rather thanon the actual admission policies of the Contracting States. This duty is part of the general duty of a State to do everything that it could reasonably have beenexpected to do to protect an individual from a harm of which it knew or oughtto have known.  Alleged threat to the “physical and moral integrity” of refugees: the requirements of Article 8   Article 8 of the ECHR guarantees the right to respect for everyone’s private andfamily life. Based on the right to respect for family life, and more recently theright to respect for private life, within the territory of the Contracting States, theCourt has developed an important jurisprudence related to ‘second generationimmigrants’ threatened with expulsion. It has been argued that this jurisprudencehas had limited impact on the protection of refugees against expulsion becauserefugees can rarely show strong social links or a disruption of family life withinthe territory of a Contracting State that would outweigh the interest of a demo-cratic society. 38 Of greater potential to refugees is Article 8 in cases of threat totheir private life in the country of return. This section concentrates on the con-cept of “physical and moral integrity” as an aspect of the private life protectedby Article 8 in cases where the treatment in the country of return falls short of  Article 3 threshold.The Court has recognised that Article 8 guarantees protection of the indi-vidual’s “physical and moral integrity” as an element of private life. The landmark case on this issue is Bensaid v. UK  . 39 The applicant was suffering from a psychoticillness and he had been allowed to remain in the UK until given notice to leavethe country. The applicant submitted that his removal to Algeria would constitutea violation of Article 3 of the ECHR because he would not receive the degree of support and access to medical facilities that he then relied on in the UK. The
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