Resolution ResDH(2001)119 concerning the judgment of the European Court of Human Rights of 15 November 1996 in the case of Chahal against the United Kingdom

(Adopted by the Committee of Ministers on 15 October 2001 at the 764th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Chahal case delivered on 15 November 1996 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 22414/93) against the United Kingdom, lodged with the European Commission of Human Rights on 27 July 1993 under former Article 25 of the Convention by two Indian nationals, Mr Karamjit Singh Chahal and Ms Darshan Kaur Chahal, and by two British nationals, Ms Kiranpreet Kaur Chahal and Mr Bikaramjit Singh Chahal, and that the Commission unanimously declared admissible the complaints that the first applicant’s deportation to India would expose him to a real risk of torture or inhuman or degrading treatment in violation of Article 3 of the Convention; that his detention pending deportation had been too long and that judicial supervision had therefore been ineffective and slow, in breach of Article 5, paragraphs 1 (f) and 4 of the Convention; that he had had no effective domestic remedy for his Convention claims, contrary to Article 13 of the Convention because of the national security elements in his case; and that his deportation would breach the right of all the applicants to respect for family life under Article 8 of the Convention;

Recalling that the case was brought before the Court by the Commission on 13 September 1995 and by the Government of the United Kingdom on 23 August 1995;

Whereas in its judgment of 15 November 1996 the Court:

- held, by twelve votes to seven, that in the event of the Secretary of State’s decision to deport the first applicant to India being implemented, there would be a violation of Article 3 of the Convention;

- held, by thirteen votes to six, that there had been no violation of Article 5, paragraph 1, of the Convention;

- held, unanimously, that there had been a violation of Article 5, paragraph 4, of the Convention;

- held, by seventeen votes to two, that, having regard to its conclusion with regard to Article 3, it was not necessary to consider the applicants’ complaint under Article 8 of the Convention;

- held, unanimously, that there had been a violation of Article 13 in conjunction with Article 3 of the Convention;

- held, unanimously, that the above findings of violation constituted sufficient just satisfaction as regards the claim for compensation for non-pecuniary damage;

- held, unanimously, that the government of the respondent state was to pay the applicants, within three months, 45 000 pounds sterling in respect of costs and expenses, less 21 141 French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the judgement and that simple interest at an annual rate of 8% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the applicants’ claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as by Protocol No. 11;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 15 November 1996, having regard to the United Kingdom’s obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken to remedy the first applicant’s individual situation and to prevent new violations of the same kind as those found in the present judgment; this information appears in the Appendix to this resolution;

Having satisfied itself that on 5 February 1997, within the time-limit set, the government of the respondent state paid the applicants the sum provided for in the judgment of 15 November 1996,

Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Resolution DH(2001)119

Information provided by the Government of the United Kingdom during the examination of the Chahal case

by the Committee of Ministers

The Government of the United Kingdom recalls that, in order to give effect to the judgment of the European Court of Human Rights, the first applicant was released on 15 November 1996 and his deportation order revoked. He has remained in the United Kingdom on the basis of the indefinite leave to remain granted in 1974. Payment of the just satisfaction took place on 5 February 1997, within the time-limit set.

As an interim measure, the government also ensured that the practice in deportation cases was rapidly adapted to the requirements of Article 3 of the Convention as set out in the Court’s judgment in the present case. The judgment has also been published in different fora (e.g. (1996) 23 EHRR 413, The Times Law Reports, etc. )

In order to ensure compliance with the requirements of Article 3 combined with Article 13, a number of legal amendments have been introduced in the Special Immigration Appeals Commission (SIAC) Act 1997, which came into force on 3 August 1998. This Act establishes a Special Immigration Appeals Commission which is of a judicial nature and is constituted on an ad hoc basis when cases arise. It consists of thirteen members who are appointed by the Lord Chancellor as he may determine. Ten of them are legal members who retain the terms and conditions of service relating to their judicial posts and three of them are lay members who are required to have experience of security matters and are appointed for an initial three years’ term which is renewable. It is duly constituted if it consists of three members of whom at least one holds or has held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876), and at least one is or has been appointed as chief adjudicator under paragraph 1 of Schedule 5 to the Immigration Act 1971, or a member of the Immigration Appeal Tribunal qualified as mentioned in paragraph 7 of that Schedule. The rules of procedure of this Commission are determined by the Procedure Rules, which came into force on 31 July 1998.

Under the new Act, a person may appeal to the Special Immigration Appeals Commission against a decision to make a deportation order against him if the grounds of the decision are that his deportation is conducive to the public good as being in the interest of national security.

Appeals from the Special Immigration Appeals Commission can be made on a question of law to the Court of Appeal. In a recent case the Court of Appeal has confirmed that the Commission has full "merits" review jurisdiction (i.e. on questions both of fact and of law) over the Home Secretary's decisions in this field (Home Secretary v Rehman (2000) 3 All ER 778).

The Procedure Rules include provision for the right of the appellant to be legally represented and for a “ special advocate” to be appointed to represent the interests of the appellant when the Secretary of State intends to oppose the appeal or to object to the disclosure of material to the appellant. In the last case, the Secretary of State must state the reasons for the objection and provide the appellant and the special advocate with a statement of that material in a form which can be shown to the appellant. These rules also provide that, despite its general duty to secure that information is not disclosed contrary to the interest of national security, the Special Immigration Appeals Commission must satisfy itself that the material available to it enables it properly to review decisions. For this purpose, where it considers it necessary for the appellant and his representative to be excluded from the proceedings, it shall, before it makes a determination, give the appellant a summary of the submissions and evidence received in his absence.

The government finds that, after the entry into force of the new legislation, the Special Immigration Appeals Commission can consider the evidence on which the Secretary of State based his decision that the appellant constitutes a danger to national security and undertake an evaluation of the Article 3 risks. Furthermore, the new legislation offers sufficient procedural safeguards for the new remedy to comply with Article 13 of the Convention.

Moreover, the government points out that when a decision affecting in general a person’s entitlement to enter or remain in the United Kingdom is based on grounds other than national security, the Immigration and Asylum Act 1999 creates a new right of appeal to an adjudicator or the Immigration Appeal Tribunal on human rights grounds. This right is available against decisions which are alleged to be unlawful as incompatible with a Convention right under section 6 (1) of the Human Rights Act 1998. The adjudicator or the Tribunal has the power to consider, and allow the appeal on the basis of, any relevant human rights issues which arise. The Act also confers jurisdiction on the Special Immigration Appeals Commission to consider human rights questions in appeals against decisions of the Secretary of State linked with the interest of the national security. A person will not be required to leave the United Kingdom if an appeal on human rights grounds is pending. It does not prevent the actual giving of directions for removal or the making of a deportation order, but such actions will not have effect during this period.

As regards the issues raised under Article 5, paragraph 4, and Article 3 of the Convention, these have been solved by the Human Rights Act 1998, which came into force on October 2000 and incorporates the European Convention on Human Rights in the United Kingdom’s law, having as its main purpose the giving of further effect to rights and freedoms guaranteed under the Convention. The main elements of the Act are the following:

According to this Act, so far as possible, primary and subordinate legislation must be read and given effect in a way compatible with the Convention rights.

A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any relevant judgment, decision, declaration or advisory opinion of the European Court, the former European Commission of Human Rights or the Committee of Ministers of the Council of Europe. Certain superior courts may make a declaration of incompatibility with a Convention right, in respect of a provision of primary or secondary legislation (this declaration not affecting the validity of the legislation and not binding the parties to the relevant proceedings).

It is also unlawful for a public authority (a court or tribunal and any person with functions of a public nature) to act in a way incompatible with a Convention right.

The victim of such an unlawful act may either bring proceedings against the authority in the appropriate court or tribunal or rely on the right or rights concerned in any legal proceedings. Furthermore, the Human Rights Act 1998 enables the jurisdiction of any tribunal to be extended by order to allow it to provide an appropriate remedy in relation to an act of a public authority which is unlawful. Damages may be awarded if the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. Proceedings against a judicial act may be brought by exercising a right of appeal, on application for judicial review or in a forum prescribed by rules. In these proceedings, the Act provides expressly a right for compensation under Article 5, paragraph 5, of the Convention. Finally, it enables the amendment by order of a provision of legislation which, in view of a finding of the European Court, appears to a Minister to be incompatible with the Convention, so as to remove the incompatibility.

As regards specifically the violation of Article 3 of the Convention, this Act follows up and completes the interim measures taken immediately after the European Court’s judgment. After its entry into force, where a deportation case raises an issue under Article 3 of the Convention, the issue is considered by the Secretary of State and (in the event of an appeal against his decision) by the Special Immigration Appeals Commission on the basis of the risks of treatment contrary to Article 3 and without reference to other considerations such as national security.

As to the violation of Article 5, paragraph 4, of the Convention, the proceedings for habeas corpus and for judicial review of the decision to detain pending deportation are subject to the provisions of Human Rights Act: the detained person is entitled to a review of his or her detention in the light of the Convention and therefore these proceedings must provide an adequate control of the conditions which are essential for “lawful” detention under Article 5, paragraph 4, of the Convention and particularly if it is justified on national security grounds. It mentions in addition that the Special Immigration Appeals Commission has a bail jurisdiction in cases where a person is detained in the interest of national security.

The Government of the United Kingdom considers that the measures taken will prevent the repetition of any new violations similar to those found in this case and that the United Kingdom has therefore fulfilled its obligations under former Article 53 of the Convention.