European Law Review
Expulsion, national security and the European Convention
Colin J. Harvey
Subject: Immigration. Other related subjects: Human rights
Keywords: Asylum seekers; Deportation; Human rights; State security; Torture Legislation: European Convention on Human Rights 1950
Case: Chahal v United Kingdom (22414/93) (1997) 23 E.H.R.R. 413 (ECHR) *E.L.R. 626 As in its previous rulings on expulsion in Cruz Varas and Vilvarajah, the Court of Human Rights has held that the prohibition contained in Article 3 is equally absolute in cases which involve alleged national security considerations. When assessing whether substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of torture or inhuman or degrading treatment or punishment in the receiving country, the conduct of the individual, however undesirable or dangerous, is not a material consideration. The United Kingdom, in the event of the execution of a decision to deport the applicant, would be in breach of Article 3. In this respect the Court's judgment has confirmed the importance of the Convention for the protection of asylum seekers and deportees in Europe, indeed, it now provides a guarantee which is of wider scope than that contained in the 1951 Convention relating to the Status of Refugees. The judgment also offers valuable guidance on the protection offered by the Convention in deportation cases when national security issues are raised. The Court also held that Article 5(4) had been breached. Further to this, the Court has held that in national security cases judicial review and the advisory panel procedure in the United Kingdom are ineffective remedies for Article 3 complaints, because the decision to deport should be reviewed solely with reference to the question of risk to the applicant. Eur. Court H.R., Chahal v. United Kingdom, Judgment of November 15, 1996; (1997) 23 E.H.R.R. 413.
The four applicants are all members of the same family of Sikhs. The political backdrop to the case lay in the conflict in the Punjab which had escalated in the mid-1980s, and the first applicant's alleged activities in the United Kingdom in relation to that conflict. The family had lived in the United Kingdom since the 1970s. In 1984 they travelled to the Punjab to visit relatives. While there Karamjit Chahal, the first applicant, was baptised and began to adhere to the tenets of orthodox Sikhism. He also became involved in passive resistance in support of independence for the Punjab. He contended that during the visit he was arrested by the police, and, while in detention, was subjected to severe illtreatment. The family returned to the United Kingdom later in May 1984. Following his return, Chahal emerged as a respected political figure within the Sikh community. In August 1984, a recognised leader of Sikh orthodoxy, Jasbir Singh Rode, visited the United *E.L.R. 627 Kingdom, and Chahal toured the country with him. Rode was, however, subsequently excluded from the United Kingdom because of his public advocacy of violent methods for the promotion of Punjab autonomy. After returning to the Punjab, Rode was detained. Following this period of detention his political views changed and he opted instead for peaceful constitutional reform. Such a position was unacceptable to many Sikhs, and it caused a split in the International Sikh Youth Federation in the United Kingdom. After the split, Chahal became involved with a faction which continued to support the campaign for an independent homeland. In 1985 Chahal was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 in relation to his alleged involvement in an assassination attempt on the Indian Prime Minister, and in 1986 he was arrested twice in connection with a variety of alleged conspiracies against political opponents. In the same year he was charged and convicted of assault and affray; convictions which were...
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