Joint Committee On Human Rights Tenth Report

2  Human Rights Principles

21. The treatment of asylum seekers and refused asylum seekers is not simply an immigration issue, but also a human rights issue. In this report, we examine the treatment of asylum seekers and refused asylum seekers in the light of the UK's human rights obligations of the various institutions with which asylum seekers come into contact. Under the Human Rights Act 1998 (HRA), the Home Office, Department of Health and local authorities are public authorities with obligations to comply with rights under the European Convention on Human Rights 1950 (ECHR).[10] Private contractors operating immigration removal centres or carrying out removals of refused asylum seekers are also almost certain to be considered to be public authorities when exercising powers of detention and removal delegated to them by the state, and are therefore also required to comply with Convention rights. There is a strong case for considering the Press Complaints Commission to be a public authority.[11]

22. International law recognises the right of states to control entry to their territories. However, the UK is also bound in international and national law by human rights standards, particularly the ECHR. We note at the outset that the Government is required to "secure to everyone within their jurisdiction" the rights contained within the European Convention on Human Rights. This includes asylum seekers and refused asylum seekers. Further, in the enjoyment of any Convention right, the state is prohibited from discriminating without objective and reasonable justification.[12] "Very weighty reasons" are required to justify discrimination on the ground of nationality.[13] The state also has obligations to comply with international standards set out in UN treaties. These obligations should be considered in conjunction with the existing common law human rights standards, which are set out below.

23. The purpose of this Chapter is to identify existing human rights norms and principles applicable to the treatment of asylum seekers, and to articulate the human rights obligations which are thereby imposed upon the UK. It starts by setting out general principles at common law which are relevant to this inquiry. It then continues briefly to consider the Refugee Convention 1951 and analyse the applicable human rights norms and obligations imposed upon states. All of the instruments mentioned in this Chapter, except for soft law instruments, are ratified by the UK, unless otherwise stated.

Common law principles relevant to the inquiry

24. Before setting out the applicable human rights provisions, we draw attention to the common law principles of (1) humanity; (2) access to a court and legal services; and (3) equal treatment.

25. First, under the common law, the state is required to treat people humanely. More than 200 years ago, the UK courts stated -

As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving.[14]

26. This principle has been applied in cases such as R v Secretary of State for the Home Department, ex parte Joint Council for the Welfare of Immigrants[15] which concerned the denial of social security benefits to asylum seekers who did not claim asylum on arrival in the UK and those whose claims had been rejected by the Secretary of State and were pending appeal.

27. Secondly, the UK courts have recognised a constitutional right of access to the courts (including tribunals and other adjudicative mechanisms) at common law. [16] This includes the right of an individual to unimpeded access to a solicitor to seek legal advice and assistance.[17]

28. Thirdly, the courts recognise a common law principle of equality. This principle has been described as -

…one of the building blocks of democracy and necessarily permeates any democratic Constitution…. Treating like cases alike and unlike cases differently is a general axiom of rational behaviour^.[18]

And -

Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed "the black" in Somersett's case (1772) 20 State Tr 1 at 20.[19]

The corollary of the principle of equality is the requirement not to discriminate either directly or indirectly without objective and reasonable justification.

Refugee Convention

29. The 1951 United Nations Convention relating to the Status of Refugees (the Refugee Convention) is the key legal document in defining who is a refugee, their rights and the legal obligations of states. The 1967 Protocol removed geographical and temporal restrictions from the Convention. Together, these instruments apply to refugees and to those seeking asylum whose claims have not been determined. They do not apply to those who have been refused asylum. State signatories to the Refugee Convention are prohibited from imposing penalties on asylum seekers who are present in the state without prior authorisation, so long as they present themselves to the authorities "without delay".[20] Specific provisions of the Refugee Convention which are relevant to this inquiry are referred to as appropriate in the rest of this Chapter.

Key human rights obligations

POSITIVE AND NEGATIVE OBLIGATIONS

30. There are two types of human rights obligations owed by states: positive and negative. A positive obligation requires states to undertake specific preventive or protective actions to secure ECHR rights (including the prevention of ill-treatment administered by private individuals or bodies), whereas they must refrain from taking certain actions under a negative obligation. Some examples of positive obligations include investigating deaths in custody, protecting vulnerable persons from ill-treatment, and securing respect for private life. Positive obligations can require the state to take steps to protect individuals from the actions of third parties (such as the press).

PROHIBITION OF DISCRIMINATION

31. Although states may, in certain circumstances, treat nationals and non-nationals differently, their right to do so is subject to states' obligations under international human rights law.[21] The ECHR protects against unjustified discrimination in the way that other Convention rights are enjoyed. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) contains a similar provision. Article 14 ECHR provides -

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This is an overarching principle which applies to all ECHR rights. It encompasses both direct[22] and indirect discrimination.[23]

32. Unlike the ECHR, the International Covenant on Civil and Political Rights (1966) (ICCPR) provides a freestanding equality guarantee -

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

DISCRIMINATION ON THE GROUNDS OF NATIONALITY

33. Both the ECHR and ICCPR expressly prohibit unjustified discrimination on the grounds of nationality. General Comment No. 15 to the ICCPR (adopted by the supervisory body for the ICCPR, the UN Human Rights Committee (UNHRC), in 1986) amplifies this principle:

Each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant [Article 2] … This guarantee applies to aliens and citizens alike[24]

And -

aliens are entitled to equal protection by the law[25]

This prohibition on nationality discrimination has been applied by the UK courts and the European Court of Human Rights.[26] In A v Secretary of State for the Home Department, which involved a challenge by foreign nationals to their indefinite detention under the Anti-Terrorism Crime and Security Act 2001, the House of Lords held that the men had been treated differently because of their nationality or immigration status and that this difference in treatment could not be justified.[27] The Court based its judgment squarely on the principle of equality -

A state is not permitted to discriminate against an unpopular minority for the good of the majority[28]

And -

Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities.[29]

Particularly severe discrimination can constitute inhuman and degrading treatment and therefore breach Article 3 ECHR.[30]

PHYSICAL OR MENTAL SUFFERING GENERALLY

34. Article 3 ECHR prohibits torture and inhuman or degrading treatment or punishment. It provides -

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Insofar as is relevant, Article 3 is mirrored by Article 7 ICCPR.

35. The prohibition against torture and inhuman or degrading treatment or punishment is absolute and cannot be opted out of in any circumstances. Along with Article 2 ECHR, the right to life, it is the most important of the Convention rights, reflecting the fundamental values of a decent society and respecting the dignity of each individual human being, no matter how unpopular or unworthy the individual is.

36. Treatment must attain a "minimum level of severity" to fall within Article 3 ECHR. The assessment of the minimum is relative and depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. Where treatment, or the absence of treatment, leads to an individual's death, it would fall within the protection of the right to life.[31]

37. The European Court of Human Rights has defined inhuman and degrading treatment as -

"ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering … Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 … The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.[32]

38. A number of other Convention rights are also important in protecting against ill-treatment. Article 8 ECHR protects against physical or mental treatment or neglect which may not attain the level of severity which would be contrary to Article 3. It provides -

a)  Everyone has the right to respect for his private and family life, his home and his correspondence.

b)  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 ….

The right to respect for private life has been interpreted by the European Court of Human Rights as including a right to physical and psychological integrity.[33]

FINANCIAL SUPPORT, ACCOMMODATION AND EMPLOYMENT

39. Articles 3 and 8 ECHR and their equivalents are relevant to the provision of financial support, accommodation and employment to asylum seekers. Destitution causing sufficiently severe suffering or particularly poor living conditions[34] may breach Article 3, or if the suffering is less severe, Article 8.

40. In R (Limbuela and others) v Secretary of State for the Home Department[35] three asylum seekers challenged the Home Secretary's refusal to provide them with support as they had not claimed asylum "as soon as was reasonably practicable". The test to be applied in deciding whether an individual has claimed promptly was whether the asylum seeker could reasonably have been expected to have claimed asylum earlier than he or she had.[36] The House of Lords in Limbuela reiterated the requirements for Article 3, and held that it -

would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. A general public duty to house the homeless or provide for the destitute cannot be spelled out of art 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life.[37]

41. The Home Secretary's duty to provide support to avoid a breach of ECHR rights was held by the House of Lords to arise when -

It appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.[38]

42. The Court also noted that the Home Secretary could not "wait and see" whether the individual's situation breached the Convention, but was required to act -

As soon as the asylum seeker makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity.[39]

43. Summarising the Home Secretary's decision to deny support to asylum seekers who, it was alleged, had not made their claims as soon as was reasonably practicable, Lord Brown of Eaton-Under-Heywood in the House of Lords stated -

It seems to me one thing to say … that within the contracting states there are unfortunately many homeless people and whether to provide funds for them is a political, not judicial, issue; quite another for a comparatively rich (not to say northerly) country like the United Kingdom to single out a particular group to be left utterly destitute on the streets as a matter of policy.[40]

44. Article 8 ECHR requires the state to respect an individual's home, but does not require the state to provide an individual with a home. However, the state may have positive duties to accommodate if the failure to do so would cause severe suffering, particularly to vulnerable individuals. Article 21 of the Refugee Convention refers to housing and requires that states -

Accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

45. Article 11 ICESCR recognises the right of everyone to an adequate standard of living for himself and his family, including adequate clothing, housing and food. The right to be free from hunger is specifically protected.

46. Article 1 of Protocol 1 ECHR concerns the protection of property and provides -

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law …

47. This Article has been interpreted by the European Court of Human Rights to include social security benefits (both contributory and non-contributory) within the concept of a "possession".[41] Also relevant are Articles 17 (wage-earning employment), 23 (public relief) and 24 (labour legislation and social security) of the Refugee Convention.

HEALTHCARE

48. Articles 2, 3 and 8 ECHR are also applicable to the provision of healthcare. In addition, "the enjoyment of the highest attainable standard of physical and mental health" is specifically protected by Article 12 ICESCR. An issue may arise under Article 2 where the state puts an individual's life at risk through the denial of healthcare which is available to the general population.[42] Further, the state has a positive duty to take steps to safeguard the lives of those within the jurisdiction.[43]

49. Applying Article 3 and judgments of the European Court of Human Rights[44] to a Ugandan asylum seeking woman suffering from advanced HIV/AIDS (N (FC) v Secretary of State for the Home Department), the House of Lords found that Article 3 did not impose an obligation on the state to provide medical care. This was so even where, in the absence of medical treatment, the life of the woman would be significantly shortened. Apart from exceptional circumstances, such as where the fatal illness had reached a critical stage, foreign nationals who were subject to expulsion could not claim any entitlement to remain in the territory of a state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. This was so even if, during the determination of her asylum claim, the individual received medical treatment which resulted in an improvement in her medical condition, such as receiving anti-retroviral treatment.[45]

FAMILY LIFE

50. The UK is under an obligation, in both international and national law,[46] to respect the rights to family life of people in de facto family relationships to the mutual enjoyment of each other's company. Interference by the state in family life is not permitted where to do so leads to it being virtually impossible to lead a meaningful family life,[47] but may be justified under Article 8(2) ECHR in the circumstances of an individual case.

LIBERTY OF THE PERSON

51. The right to liberty and security of the person is guaranteed by Article 5(1) ECHR which sets out the only circumstances in which an individual may be deprived of his liberty. This is mirrored by Article 9 ICCPR. The right to liberty and security of the person applies to both nationals and non-nationals.[48] The right to liberty has been described by Lord Hope of Craighead as "a fundamental right which belongs to everyone who happens to be in this country, irrespective of his or her nationality or citizenship".[49] Article 5(1)(f) ECHR provides that an individual may be deprived of his liberty subject to a procedure prescribed by law in the case of -

The lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

52. The European Court of Human Rights has interpreted the meaning of detention "with a view to deportation" stating -

Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary… All that is required under this provision is that "action is being taken with a view to deportation".[50]

53. However the Court has pointed out that the individual must be protected from arbitrary detention -

Any such deprivation of liberty was justified under Article 5(1)(f) only for as long as deportation proceedings were in progress. If the proceedings were not prosecuted with due diligence, the detention would cease to be permissible under the provision.[51]

This approach accords with the UK courts' decision in R v Governor of Durham Prison ex parte Singh[52] and Tan Te Lam v Superintendent of Tai A Chan Detention Centre[53] that detention was permissible only for such time as was necessary for the process of deportation to be carried out. There is therefore no warrant for the long-term or indefinite detention of non-UK nationals whom the state wished to remove.

54. Recognizing that detention is a major interference with personal liberty, the European Court has noted the difference between detaining those seeking asylum and others -

Where individuals are lawfully at large in a country, the authorities may only detain if … a "reasonable balance" is struck between the requirements of society and the individual's freedom. The position regarding potential immigrants, whether they are applying for asylum or not, is different to the extent that, until their application for immigration clearance and/or asylum has been dealt with, they are not "authorized" to be on the territory. Subject, as always, to the rule against arbitrariness, the Court accepts that the State has a broader discretion to decide whether to detain potential immigrants than is the case for other interferences with the right to liberty… All that is required is that the detention should be a genuine part of the process to determine whether the individual should be granted immigration clearance and/or asylum, and that it should not otherwise be arbitrary, for example on account of its length.[54]

55. An individual who has been detained has the right to take legal proceedings to determine quickly whether or not he is lawfully detained.[55] The importance of treating those detained with humanity is recognized by Article 10 ICCPR.[56]

RIGHT TO A FAIR TRIAL AND TO A FAIR HEARING

56. In addition to the common law principle of access to the courts and to legal advice, the right to a fair trial and to a fair hearing is protected by human rights instruments. Article 6 ECHR provides -

In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

57. Article 6 has been interpreted to include an implied right of access to the courts,[57] although this right is not absolute and may be limited by the state.[58] Whilst Article 6 does not apply to the state's decisions on whether or not to grant asylum,[59] it does apply to any other decisions relating to asylum seekers such as their detention, mistreatment, removal of support[60] or removal of their children. Further, the courts have decided that where the state establishes the right to appeal, it must ensure that people can enjoy the fundamental guarantees of that right and that, in the way that it regulates the right, it does not restrict it so that "the very essence of the right is impaired".[61] Access to the courts is also protected by Article 16 of the Refugee Convention and Article 14 ICCPR.

FREEDOM OF EXPRESSION

58. Article 10 ECHR and Article 19 ICCPR set out a qualified right to freedom of expression.[62] The right includes the right "to receive and impart information and ideas" and comes with concomitant duties and responsibilities. Article 10 ECHR is unique amongst ECHR rights in expressly stating (in paragraph 2) that "the exercise of these freedoms … carries with it duties and responsibilities". Free speech can only be restricted in the circumstances set out in the Article, namely -

… as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others…

59. The right to free speech is balanced against other rights, most significantly, Articles 2 (right to life), 3 (prohibition of ill-treatment) and 8 (respect for private and family life).

60. Article 20 ICCPR prohibits hate speech -

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law.[63]

61. Article 4 CERD requires states to:

not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

In 2003, the Committee overseeing the International Convention on the Elimination of Racial Discrimination (CERD) expressed concern about the ineffectiveness of the Press Complaints Commission in dealing with increasing prejudice against asylum seekers in certain sections of the media.[64]

VULNERABLE GROUPS

62. Some groups of asylum seekers, because of their special needs, are especially vulnerable. The United Nations has noted the effect of detention, which it considers should take place only in exceptional circumstances, on vulnerable groups. It recommends that children should not be placed in detention, and particular attention should also be paid to vulnerable persons (victims of torture, trauma, unaccompanied elderly, persons needing medical care), women and stateless persons.[65]

63. European Union Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers[66] provides that "reception of groups with special needs should be specifically designed to meet [their] needs".[67] Article 17 provides that -

Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care.

CHILDREN

64. Child asylum seekers possess the same human rights as all other asylum seekers. In addition, they are afforded special protection because of their vulnerability by the Convention on the Rights of the Child (1989) (CRC) and the Children Act 1989, which partly brings the CRC into UK law. Special note is also taken of the particularly vulnerable situation of unaccompanied and separated children.[68] Article 37 CRC is particularly relevant -

States parties shall ensure that -

a)  no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …

b)  no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period.

c)  Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so …

d)  Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before or a court …

65. The UK has reserved the right to apply legislation which relates to "entry into, stay in and departure from" the UK as it deems necessary. However, a similar reservation to a different human rights treaty was found to be contrary to the object and purpose of the treaty itself.[69] Our predecessor Committee previously expressed concern about the effects of immigration and asylum policy, particularly detention, on children, and criticised the UK's reservation to the CRC.[70]

PREGNANT WOMEN

66. In addition to its duty not to discriminate against foreign nationals, the state has particular responsibilities towards women. These responsibilities apply equally to nationals and non-nationals. The state is required to refrain from engaging in any act or practice of discrimination against women[71] and has particular health responsibilities to women, especially relating to pregnancy and post-natal care -

… states parties shall ensure to women appropriate services in connexion with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.[72]

The particular vulnerability of young destitute asylum seeking women has been noted by the House of Lords.[73]

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10  Human Rights Act 1998 Section 6. Back

11  Relying on the Press Complaints Commission's acceptance that it was arguably a public authority in the case of R (Ford) v The Press Complaints Commission [2001] EWHC Admin 683, para. 11, and the Government's statement during the debates on the Human Rights Act that it considered that the PCC undertook public functions (Hansard HC Debs, 6th ser., col. 414). Back

12  Article 14 ECHR, Belgian Linguistics Case (No. 2) (1968) 1 EHRR 252 at 284, para. 14. Back

13  Gaygusuz v Austria App. No. 39/1995/545/631, 31 August 1996, para. 42, Legislative Scrutiny: First Progress Report, Second Report of Session 2006-07, HL Paper 34, HC 263, paras. 6.20-6.31. Back

14   R v Eastbourne (Inhabitants) (1803) 4 East 103, 102 ER 769 at 770. Back

15   [1996] 4 All ER 385. Back

16   R v Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 per Baroness Hale at 458 - "in this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts". Back

17   Raymond v Honey [1983] 1 AC 1, HL; R v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778, Div Ct; R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198; R v Lord Chancellor, ex parte Witham [198] QB 575, Div Ct. Back

18   Matadeen v Pointu [1998] 3 LRC 542 at 552; [1999] 1 AC 98 at 109. Back

19   Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765 at 782; [1984] AC 74 at 111-112. Back

20   Article 31 Refugee Convention. Back

21  Oppenheim's International Law (9th edn, 1992), vol. 2, pp. 909-910, para. 404; United Nations General Assembly Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, 13 December 1985 (GA Res. 40/144) - states might establish differences between nationals and non-nationals but laws and regulations should not be incompatible with the international legal obligations of the state, including those in the field of human rights (Article 2). Back

22  Belgian Linguistics Case (1968) 1 EHRR 252. Back

23  Thlimmenos v Greece App. No. 34369/97, 6 April 2000, para. 44; R (S and Marper) v Chief Constable of South Yorkshire [2002] EWCA Civ 1275, para. 89; Zeman v Austria App. No. 23960/02, 29 June 2006, para. 32. Back

24   para. 2 Back

25   para. 7 Back

26   Gaygusuz v Austria App. No. 39/1995/545/631, 31 August 1996. Back

27   [2005] UKHL 71; [2005] 2 AC 68. Back

28   Lord Hope, para. 136. Back

29  Baroness Hale, para. 237. Back

30  East African Asians v United Kingdom (1973) 3 EHRR 76; Nachova v Bulgaria App. Nos. 43577/98 and 43579/98, 6 July 2005. Back

31  Article 2 ECHR, Article 6 ICCPR. Back

32   Pretty v United Kingdom App. No. 2346/02, 29 April 2002, para. 52. Back

33   X & Y v Netherlands (1985) 8 EHRR 235. Back

34   Moldovan v Romania App. Nos. 41138/98 and 64320/0, 12 July 2005, para. 110. Back

35  [2005] UKHL 66; [2006] 1 AC 396. Back

36  R (Q and others) v Secretary of State for the Home Department [2003] 2 All ER 905. Back

37  Limbuela, Op. Cit., Para. 7. Back

38   Limbuela, Op. Cit, Para. 8. Back

39  Para. 62. Back

40   Para. 99. Back

41  Stec v United Kingdom (App. No. 65731/01 and 65900/01), 6 July 2005 (Adm.), para. 53. Back

42   Cyprus v Turkey [2002] 35 EHRR 30, para.219. Back

43   L.C.B. v United Kingdom [1999] 27 EHRR 212, para. 36. Back

44   D v UK (1997) 24 EHRR 425 in which the ECtHR held that in the "very exceptional circumstances" of that case, it would be a breach of Article 3 ECHR to return D, an individual in the final stages of AIDS with no prospect of medical care or family support, to St Kitts. Back

45  N (FC) v Secretary of State for the Home Department [2005] UKHL 31. Back

46  Article 8 ECHR and Article 17 ICCPR. Back

47  R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin). Back

48  General Comment 15 of the UNHRC - "aliens have the full right to liberty and security of the person" (para. 7). Back

49  A v Secretary of State for the Home Department [2005] 3 All ER 169 at para. 106. Back

50  Chahal v United Kingdom (1997) 23 EHRR 413, para. 33. Back

51  Chahal v United Kingdom (1997) 23 EHRR 413, para. 113. Back

52   [1984] 1 All ER 983; [1984] IWLR 704. Back

53   [1996] 4 All ER 256; [1997] AC 97. Back

54  Saadi v United Kingdom App. No. 13229/03, 11 July 2006, para. 44. Back

55  Article 5(4) ECHR and Article 9(4) ICCPR. Back

56  "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human being." Back

57  Golder v United Kingdom (1979-80) 1 EHRR 524 - a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves. Back

58  Golder v United Kingdom (1979-80) 1 EHRR 524. Back

59  Maaouia v France (2001) 33 EHRR 42. Back

60  R (Husain) v Asylum Support Adjudicators and Secretary of State for the Home Department [2001] EWHC 852 (Admin). Back

61   See e.g. Saleem v Secretary of State for the Home Department [2001] 1 WLR 443 Baroness Hale at 458. Back

62  This accords with the position at common law - Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011 at 1021. Back

63   The UK Government has made a reservation to Article 20 ICCPR in the following terms "The Government of the United Kingdom interpret Article 20 consistently with the rights conferred by Articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order reserve the right not to introduce any further legislation…" Back

64   Conclusions and recommendations of the Committee on the Elimination of Racial Discrimination, United Kingdom of Great Britain and Northern Ireland, U.N. Doc. CERD/C/63/CO/11 (2003), para. 13; The Convention on the Elimination of Racial Discrimination, Fourteenth Report of Session 2004-05, paras 59-62. Back

65   United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999. Back

66   OJ (L) 31/18 (2003). Henceforth "EU Reception Directive". Back

67   Ninth paragraph of the Preamble. Back

68  United Nations Committee on the Rights of the Child General Comment No. 6 (2005), Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/GC/2005/6, 1 September 2005. Back

69  Rawle Kennedy (represented by the London law firm Simons Muirhead & Burton) v. Trinidad and Tobago, Communication No. 845, U.N. Doc. CCPR/C/67/D/845/1999 (31 December 1999) at paragraph 6.7. The UN Human Rights Committee stated: "The Committee cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols…" Back

70  Seventeenth Report of Session 2001-02, Nationality, Immigration and Asylum Bill, HL Paper 132/HC 961, Ninth Report of Session 2002-03, The Case for a Children's Commissioner for England, HL Paper 96/HC 666, Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161/HC 537. Back

71  Article 2(d), United Nations Convention on the Elimination of Discrimination Against Women (CEDAW) (1979). Back

72  Article 12(2) CEDAW. Back

73  Limbuela, op. cit., para. 78. Back

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Prepared 30 March 2007