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In immigration There are two Articles of the European Convention that are especially relevant for immigration, and these are Article 3 and 8. ARTICLE 3 prohibits torture and inhuman or degrading treatment or punishment. The European Court of Human Rights has held that States have an obligation under Article 3 not to expose anyone under their jurisdiction to treatment contrary to Article 3 even if this treatment would occur outside their jurisdiction. Therefore, a State cannot expel or extradite a person if he/she faces torture or inhuman or degrading treatment or punishment in the country to which he/she is being expelled to. If a person claims that there is a risk of ill-treatment in the country he/she is being expelled to, the burden is on the applicant to produce evidence that there is a serious and concrete threat — it is not sufficient to express of fear of danger. When the European Court assesses whether there is a risk of ill-treatment in a particular case, the threat to national security posed by the applicant will not be taken into consideration. This is because Article 3 is an absolute right, to which no exceptions are allowed, not even in time of war. Further, it is not relevant whether the threat posed to the applicant in the State he/she is being expelled to comes from the State authorities or private persons, e.g. a guerilla group. The European Court has held that expelling a person to a country where he would face years on death row was a violation of Article 3 (Soering v. the United Kingdom). It has also held that the proposed expulsion of a person suffering from AIDS from the United Kingdom to St Kitts where he would no longer receive drugs treatment and had no family to care from him, was a violation of Article 3 (D v. the United Kingdom). Another Article which is relevant in immigration context is ARTICLE 8, which incorporates the right to respect for private and family life. For a definition of what constitutes family and private life, please see section on Family Law. Expulsion, or refusal of entry into a country, can be a violation of Article 8 if it separates an existing family. Article 8 is however a qualified right, which means that it may be subject to exceptions. The question that the European Court of Human Rights asks in such a case is: Are there insurmountable obstacles for the family to conduct their family life elsewhere? The Court has upheld a refusal by the Swiss authorities to allow the child of a Turkish national to join the father in Switzerland. The Court noted that there was no obstacle to the development of family life in Turkey where the child had always lived. (Gul v. Switzerland) However, on another occasion the Court held that the deportation of a Moroccan, after his divorce from a Netherlands' national, violated Article 8 since it separated him from his daughter with whom he had regular contact and to whom he contributed significant maintenance. (Berrehab v. the Netherlands) When assessing cases under Article 8, the Court will also take into consideration if the applicant has been deported for serious offences, such as drug trafficking. |
