Derogation from A Non-Derogable Right? Article 3 of the European Convention on Human Rights, Immigration and the British Government

Islamic Human Rights Commission

2nd March 2003

BRIEFING: Derogation from A Non-Derogable Right? Article 3 of the European Convention on Human Rights, Immigration and the British Government

In an increasingly globalised world, where law is seen as the principal carrier of the few values still shared by diverse nations, it is ironic that the UK Government is undermining its commitment to legal protection of one of the basic of all human rights of individuals.

The response by the Government to a recent High Court ruling regarding asylum seekers’ access to welfare benefits prompted it to state that it may consider opting out of Article 3 of the European Convention on Human Rights (ECHR) as incorporated in the Human Rights Act 1998 (HRA). Article 3 protects individuals against subjection to torture, inhuman or degrading treatment and the guarantee of this right is a cornerstone of protection in the majority of human rights treaties. This suggestion of ‘opting out’ of various human rights obligations merely follows a trend already established by the Government in its implementation of recent anti-terrorism legislation – and demonstrates that the UK Government is increasingly viewing its commitment to human rights as an expendable obligation rather than a necessary responsibility.

High Court Ruling

On 19 February 2003, the High Court struck down tough rules made under Article 55 of the Nationality, Immigration and Asylum Act 2002 which provided that anyone entering UK intending to claim asylum must make a claim as soon as possible or be refused access to welfare benefits.

The Home Office had been interpreting this provision very narrowly since its introduction on 8 January 2003. During the hearing, Mr. Justice Collins considered the case of six asylum seekers left destitute as a result of the provisions (including that of an Angolan man who found his father shot dead and mother and sister naked after being raped, and claiming asylum not at Heathrow but at the Home Office in Croydon on the same day). In rendering judgement, he stated that ‘Parliament can surely not have intended that genuine refugees should be faced with the bleak alternatives of returning to persecution…or destitution’. Indeed, it has been clear that this blanket provision has resulted in miscarriages of justice allowing the innocent (rather than necessarily those who deliberately avoid immigration authorities) to be punished – leaving them to face the stark choice of returning home to persecution or staying in the UK, without permission to work and sleeping rough on the streets – a standard surely intolerable in any civilised society.

As soon as judgement had been handed down, the Government made clear its intention to appeal and further stated that it will consider opting out of the ECHR if any new measures taken to reduce the number of asylum seekers failed to work. There is no doubt that opting out in this manner would spark controversy and have to overcome any potential legal difficulties – and there is also no doubt that it would lead the UK down a slippery slope of erosion of one of the most fundamental rights that the HRA was designed to protect.

Article 3

Article 3 of the ECHR guarantees the right not to be ‘subjected to torture or to inhuman or degrading treatment or punishment’. It is considered to be so fundamental that, unlike certain other rights, it is one of the few rights contained in the ECHR that is considered non-derogable, ‘even in times of war or other public emergency threatening the life a nation.’

This is a reflection of the fact that in any civilised society there can be no justification for torture or similar treatment. The Strasbourg courts have fiercely rejected any attempts by Governments in the past trying to undermine this right even in an indirect manner. Indeed, in the case of Chahal v UK (1996), the European Court held that although the ECHR does not guarantee a right to asylum, the prohibition against torture and inhuman treatment was an absolute one, irrespective of an individual’s conduct. Thus, in circumstances where the asylum seeker was an Indian national facing deportation to India where there was a real risk that he might be subjected to treatment contrary to Article 3, the UK had an obligation to safeguard against such treatment, despite claiming that he may be a threat to UK national security. The Court held that, even in these circumstances, any order for his deportation would, if executed, give rise to a violation of Article 3.

Anti-terrorism Legislation

Even prior to the Government reaction to this ruling, there is already evidence that the UK, is side-stepping its commitment to the ECHR without the need for a formal ‘opt-out’. Anti-terrorism legislation contained in the Anti-terrorism, Crime and Security Act 2001 resulted in the UK Government derogating (effectively opting out) from the Article 5 ECHR provisions against detention without charge or trial. At the time, the Council of Europe’s Human Rights Commissioner severely criticised the UK’s opt-out and policy of internment stating that, ‘general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention’.

Yet the UK’s treatment of individuals shows clearly its lack of concern for its human rights obligations. In December 2001, Djamel Ajouaou was arrested and given the ultimatum of leaving the country or facing indefinite detention without charge. After being held at high security Belmarsh prison for 2 months without being informed of the crime he was alleged to have committed, he chose to return to Morocco, where he potentially faced treatment contrary to Article 3. It is in this indirect way, by presenting detainees with intolerable options that the Government is already curtailing the guarantees provided by Article 3.


As far back as 2001, David Blunkett had anticipated what he believed would be ‘tensions’ between the HRA and any anti-terrorism legislation. It would be ironic if individual rights which have been fought so hard for in the past were undermined by the Government so rapidly and with such little public debate. Indeed, as pointed out by leading QC, Michael Mansfield, ‘human rights are not going to mean anything if at the first moment that there’s a real test we just abandon or alter them’. The real task facing the Government is to maintain its integrity in the face of increasing challenges and uphold its commitment to protect the rights of individuals.

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