European Law Review

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European Law Review
1997

Case Comment
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.

Facts
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 later quashed by the Court of Appeal.
In August 1990 the Home Secretary decided that the applicant's continued presence in the United
Kingdom was not conducive to the public good, and that he should be deported for reasons of

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national security and other political reasons relating to the fight against international terrorism.1 He was detained in Bedford Prison on August 16, 1990, with a view to deportation. His subsequent request for asylum was refused by the Home Secretary. Under the Immigration Act of 1971, because of the national security considerations, Chahal had no right of appeal against the deportation order but instead had to rely on the special advisory panel procedure.2 As part of the panel's well-established procedure, he was not informed of the evidence against him, or of its source. He was not allowed legal representation, and was not told the (non-binding) advice which the panel had given to the Home Secretary. On July 29, 1991 a deportation order was served on him. He applied for judicial review of the decisions refusing him asylum and making the deportation order. The High Court quashed the original asylum finding that the reasoning behind the decision of the Home Secretary was inadequate.3 The Home Secretary had failed to explain whether he believed evidence contained in an Amnesty International report which related to the situation in the Punjab. In response, the Home
Secretary took a fresh decision to refuse the asylum request, and on this occasion Chahal's judicial review application was rejected.4 On appeal against this refusal, the Court of Appeal held that the
Secretary of State had an obligation in national security cases to balance the security interests against the risks to the individual.5 The Court held that it had not been shown that the Secretary of
State had failed to carry out this balancing exercise, and it was not possible to say that the decision to deport him was Wednesbury unreasonable.6 Leave to appeal to the House of Lords was refused.
Subsequent attempts to challenge the *E.L.R. 628 detention, following the decision of the European
Commission of Human Rights, were also unsuccessful.7

The application under the European Convention on Human Rights
Chahal's application to the European Commission of Human Rights relied on three main points: firstly, that his 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 on Human Rights; secondly, that the period of detention had violated Article 5(1) and (4) of the Convention; and thirdly, that because of the national security element, and contrary to Article 13, he had no effective remedy with respect to his
Convention complaints. All the applicants also alleged that the decision to deport the first applicant would breach Article 8, and that they had no effective domestic remedy against this Convention claim, contrary to Article 13.
The Commission expressed the unanimous opinion that there would be violations of Articles 3 and 8 if the first applicant were deported to India; and that, because of the length of the detention, there had been a violation of Article 5(1); and further that there had been a violation of Article 13. The
Commission concluded that there was no need to consider the Article 5(4) complaint.8
The Court of Human Rights held that there would be a violation of Article 3 if the applicant were returned to India.9 Unlike the Commission, however, the Court held that there had been no violation of
Article 5(1).10 With respect to the remedies available the Court held, unanimously, that there had been violations of both Articles 5(4) and 13.

Article 3 and national security considerations
The Chahal judgment is another in a line of recent case law where the Court of Human Rights has been called upon to decide whether the expulsion of an individual from a Contracting State would constitute a violation of Article 3. It may be viewed as further clarification of the scope of Article 3 following the landmark Soering judgment.11 There the Court held that a state's responsibility under
Article 3 of the Convention could be engaged if substantial grounds were shown for believing that the individual, if extradited, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. Later case law has made it clear that this applies not only in cases of extradition but also expulsion.12 The basic issue has been to assess whether the individual does indeed run a serious risk of being exposed to treatment which in a Contracting State would violate
Article 3 of the Convention.
*E.L.R. 629 While these cases raise difficult questions of responsibility, and may cause practical problems for states, the Court has consistently stressed the fundamental and absolute nature of
Article 3. The issue which the Court had to resolve here was whether the absolute nature of Article 3 extended to those facing expulsion who are alleged to constitute a threat to national security. In other words, whether the behaviour of the individual should play any part in the assessment of the risk of ill-treatment. Page3

The Government's main contention in the case was that there was no real risk of ill-treatment.
However, it did seek to advance the argument that the Article 3 prohibition was not absolute in cases of deportation. The United Kingdom argued that other factors should be permitted to be taken into account, such as the danger which the individual posed to the country in question. Where removal was on national security grounds there should be an implied limitation to the right. Alternatively, the threat which the individual posed should at least be allowed to be weighed in the balance. Essentially this is what the 1951 Convention relating to the Status of Refugees envisaged and allows.13
The Court of Human Rights recognised the problems which states faced as a result of terrorist violence. However, because of the absolute and fundamental nature of Article 3 the individual's behaviour could not constitute a material consideration. The activities of the individual, no matter how undesirable or dangerous, were not relevant to an assessment of the risk of ill-treatment.14 The Court acknowledged that the end result was that the protection afforded by Article 3 was of wider scope than that provided by Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees.
In reaching this conclusion the Court cleared up a confusion which had arisen following Soering. In its earlier judgment it had referred to the possible risks of undermining the institution of extradition and mentioned that a fair balance was inherent in the whole of the Convention.15 Here, however, the Court stated firmly that it was not to be inferred from this aspect of the judgment that a balancing exercise was required.16
It is interesting to note that the European Convention on Human Rights, which is a general human rights mechanism, now offers protection which is of broader scope than the specific 1951 Convention relating to the Status of Refugees. This means, in effect, that human rights law now guarantees protection to asylum seekers in circumstances which would exclude the application of refugee law.
One wonders whether signatories to the European Convention would have appreciated this at the time. This highlights, yet again, the problems inherent in the absence of an international supervisory mechanism for refugee law.

A real risk of ill-treatment?
Given the serious consequences of an erroneous decision in these expulsion cases, the assessment of the relevant facts is of the utmost importance. The Court restated the position that while the
Commission was the primary fact-finding body it was not bound by the Commission's findings. This was particularly necessary in expulsion cases, where *E.L.R. 630 the Court's examination of the existence of a real risk needed to be rigorous in the light of the fundamental nature of Article 3. The material point in time in the assessment of the risk of ill-treatment was that of the Court's consideration of the case, and it therefore might have to avail itself of information which had come to light only after the Commission's review. Given that the United Kingdom had offered to return Chahal to an airport of his choice in India, the Court had also to consider whether the relevant risk of ill-treatment existed throughout India, and not solely in the Punjab.
The fact that he was a well-known Sikh activist meant that evidence relating to the treatment of this group was especially relevant. Further to this, the Indian government had given assurances as to his future safety. There was a problem in this respect, as Chahal's case had attracted much publicity, which he wished to contend only worsened his position and increased the risk of ill-treatment.
The Court stated that the violations of human rights by members of the security forces against Sikh militants in the Punjab, and elsewhere in India, were an enduring problem.17 It attached significance to the fact that no concrete evidence had been produced to show that there had been fundamental reform or reorganisation of the Punjab police in recent years.18 Although he would be most at risk in the Punjab, violations of human rights by the Indian police continued to be a problem throughout the country.19 In the light of this, the assurances of the Indian government did not provide Chahal with an adequate guarantee of safety. In addition, his high profile would be more likely to increase the risk of harm.20 Taking all of these factors into consideration, the Court held that there was a real risk of treatment contrary to Article 3 if the decision to deport Chahal was executed.21

Detaining deportees
The Court of Human Rights considered the applicant's complaint with respect to Article 5(1). As it was clear that the detention was ordered “with a view to deportation” the Court examined whether the deportation proceedings had been prosecuted with due diligence, and thus whether the duration of

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the proceedings was excessive. The relevant overall period was from August 16, 1990, until March 3,
1994, when the House of Lords refused him leave to appeal. The period following this was to be distinguished, as the Government had refrained from deporting him in compliance with a request made by the Commission under Rule 36. None of the periods complained of could be regarded as lengthy or excessive, taken individually or in combination. The Court stated that given the nature of these cases it was important that decisions were not taken too hastily.22 Therefore, there was no violation of Article 5(1) with respect to the diligence of domestic procedures.
As regards the lawfulness of the detention for the purposes of Article 5(1)(f), the Court held that there was no doubt that it was in accordance with national law, but given the length of the detention it had to consider whether the guarantees against arbitrariness were *E.L.R. 631 sufficient.23 In this context the advisory panel procedure did offer an important protection against arbitrariness and provided at least prima facie grounds for believing that if Chahal were at liberty national security would be threatened.24 The executive had not acted arbitrarily when it had ordered him to be kept in detention.
With reference to the Article 5(4) complaint the Court noted that it provided a lex specialis in relation to the more general requirements of Article 13. While it was clear that Article 5(4) did not guarantee a right to judicial review which was broad enough for the court to substitute its own view for that of the decision-maker, the review had to be extensive enough to bear on the conditions which were essential for the lawfulness of the detention of a person under Article 5(1). Article 5(4) did not, however, demand that domestic courts should have the power to review whether the underlying decision to expel was justified under national or convention law. The Court stated that because national security was involved the courts could not review whether the detention was justifiable on national security grounds. Although the advisory panel did offer a measure of control, the absence of legal representation, the provision of only an outline of the grounds of the decision to deport, combined with the issues of non-disclosure and the non-binding nature of the advice, meant that it could not be regarded as a “court” within the meaning of Article 5(4).25 The Court recognised that the use of confidential material might be unavoidable in national security cases, but this did not mean that national authorities should be free from effective control whenever national security was raised.
Significance was attached by the Court to the existence in Canada of a more effective system of judicial control.26 This demonstrated that there were ways in which security concerns could be accommodated with procedural justice. On the basis of the shortcomings noted, the Court concluded that the available mechanisms did not satisfy the requirements of Article 5(4).

Effective remedies in national security cases
The Court of Human Rights rejected the Government's contention that in national security cases
Article 13 only required a remedy which was “as effective as can be”,27 stating that this approach was inappropriate in Article 3 cases.28 The Court stated that Article 13 required the provision of a domestic remedy which dealt with the substance of the complaint and permitted appropriate relief to be granted. It is well established in the case law that the Court considers that judicial review offers an effective remedy in expulsion *E.L.R. 632 cases.29 However, the national security element in Chahal meant that it could be distinguished. Given the irreversible nature of the harm that might occur upon return, if the risk of ill-treatment was to materialise, and the overriding importance of Article 3, the
Court stated that the notion of an effective remedy under Article 13 required independent scrutiny of the Article 3 complaint.30 This should be carried out without regard to what the applicant may or may not have done to warrant expulsion. The independent scrutiny did not have to come from a judicial authority. Neither the domestic courts in the United Kingdom nor the advisory panel could review the decision to deport solely with reference to the risk of ill-treatment, thus an effective remedy did not exist for Chahal's Article 3 complaint. Regarding the advisory panel, the Court noted the absence of, inter alia, legal representation, the provision of only an outline of the grounds of the decision to deport, and the fact that the panel's powers were purely advisory.31
Although the facts often differ in significant respects, it is interesting to compare the approach of the
Court of Human Rights to that of the European Court of Justice.32 The emphasis placed by the Court of Justice on absolute independence in ex parte Gallagher, and the importance of being able to present an effective defence, is comparable to the reasoning of the Court of Human Rights in Chahal.
This is recognition of the centrality of securing procedural justice for individuals, even in cases where national security and public security issues are raised. It is apparent from the judgments that basic procedural guarantees are not to be wholly sacrificed to national security considerations.
It is noteworthy, in the light of the above discussion, that the United Kingdom Government is

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proposing to establish a Special Immigration Appeals Commission, which will in future hear appeals in these types of political, and other, cases.33
In the light of its decision that there had been no violation of Article 5(1) the Court refused to award compensation and stated that the findings in relation to Articles 3, 5(4) and 13 constituted sufficient just satisfaction. Legal costs were awarded, somewhat below the figure claimed by the applicants.

Conclusion
The judgment of the Court of Human Rights in Chahal is welcome reaffirmation of the fundamental and absolute nature of Article 3. In stressing that the behaviour of the individual is irrelevant to the assessment of risk, the judgment is a firm rejection of the argument advanced by the United Kingdom
Government that there should be an implied limitation to Article 3 in these cases, or that at minimum a
“balancing exercise” should *E.L.R. 633 be permitted. The fact that the Court also held that a real risk of ill-treatment existed should now dispel fears that the test first laid down in Soering was unlikely to be met in practice. Some of the judgments which have followed Chahal confirm this.34
The ineffective nature of the remedies available in these political cases has been obvious to many for some time. While continuing to maintain its general position on the effectiveness of judicial review in expulsion cases, the Court recognised that in this instance the national security element hampered any effective assessment of the risk of ill-treatment. The United Kingdom courts' approach, of ensuring that the Secretary of State had balanced the risk to Chahal against the danger to national security, was shown clearly to be inadequate. The Court of Human Rights' criticism of the advisory procedure, combined with the finding that independent scrutiny of the risk of possible ill-treatment was a requirement of effective assessment, has, as stated, inspired a long overdue proposal for reform of the arrangements in the United Kingdom. The judgment confirms that those facing expulsion must have access to a remedy which provides independent scrutiny of the alleged risk of ill-treatment upon return to the receiving country.
The Court of Human Rights' judgment also highlights the deficiencies of the 1951 Convention relating to the Status of Refugees. While the prohibition on refoulement in Article 33 is viewed correctly as the cornerstone of modern refugee law, it permits limitations on national security grounds.35 Viewed from the perspective of human rights law it is seriously flawed as a protection regime. The judgment of the
Court in Chahal has however shown that human rights law may remedy some of refugee law's more obvious gaps. The relevance of the European Convention for refugees and asylum seekers has therefore been clearly demonstrated.
Lecturer in Law, Queen's University Belfast. I would like to thank Ann Sherlock for her valuable comments on this case note.
E.L. Rev. 1997, 22(6), 626-633

1.

Immigration Act 1971 s.3(5)(b).

2.

s.15(3). See R. v. Secretary of State for the Home Department, ex p. Hosenball [1977] 3 All E.R. 452 (CA); R. v.
Secretary of State for the Home Department, ex p. Cheblak [1991] 2 All E.R. 319 (CA). For an outline of the procedure
HC Deb. 819, col. 357 ff. (June 15, 1971).

3.

R. v. Secretary of State for the Home Department, ex p. Chahal (No. 1) (2 Dec. 1991, unreported).

4.

R. v. Secretary of State for the Home Department, ex p. Chahal (No. 2) [1993] Imm. A.R. 362.

5.

R. v. Secretary of State for the Home Department, ex p. Chahal [1995] 1 W.L.R. 526; [1995] 1 All E.R. 658; [1994] Imm.
A.R. 107. cf. NSH v. Secretary of State for the Home Department [1988] Imm A.R. 389 (CA).

6.

In accordance with the formulation by Lord Greene in Associated Picture Houses Ltd v. Wednesbury Corp. [1948] 1
K.B. 223 at pp. 229-230.

7.

R. v. Secretary of State for the Home Department, ex p. Chahal (Nov 10, 1995, unreported).

8.

16 votes to 1.

9.

12 votes to 7.

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10.

13 votes to 6.

11.

Soering v. United Kingdom, Eur. Court H.R., judgment of July 7, 1989, Series A, No. 161; (1989) 1 E.H.R.R. 439;
Vilvarajah and Others v. United Kingdom, Eur. Court H.R., judgment of October 30, 1991, Series A, No. 215; (1992) 14
E.H.R.R. 248; Cruz Varas v. Sweden, Eur. Court H.R., judgment of March 20, 1991, Series A, No. 201; (1992) 14
E.H.R.R. 1.

12.

Cruz Varas, para. 70; Vilvarajah, paras. 102-103.

13.

189 U.N.T.S. 150, entry into force April 22, 1954. Articles 32 and 33.

14.

para. 80.

15.

para. 89.

16.

para. 81.

17.

para. 105.

18.

para. 103.

19.

para. 104.

20.

para. 105.

21.

para. 107.

22.

para. 117.

23.

para. 119.

24.

para. 122.

25.

para. 130.

26.

The Court of Human Rights noted that: “Under the Canadian Immigration Act 1976 (as amended by the Immigration Act
1988) a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and call evidence. The confidentiality of the security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.” para. 144. For further information on Canada's creative attempts to recognise the importance of fair procedures in this, and other, contexts see I. Leigh, “Secret Proceedings in Canada” (1996) 34 Osgoode Hall L.J.
112.

27.

See Klass v. Germany, Eur. Court H.R., judgment of September 6, 1978, Series A, No. 28; (1979) 2 E.H.R.R. 214, para. 69; Leander v. Sweden, Eur Court H.R., judgment of March 26, 1987, Series A, No. 116; (1987) 9 E.H.R.R. 433, para. 84.

28.

para. 150.

29.

Vilvarajah, paras 123-125.

30.

para. 151.

31.

para. 154.

32.

R. v. Secretary of State for the Home Department, ex p. Gallagher Case C 175/94 [1997] E.C.R. nyr; [1996] 1 C.M.L.R.
557, referred for preliminary ruling under Article 177 by the Court of Appeal, see R. v. Secretary of State for the Home
Department, ex p. Gallagher [1994] 3 C.M.L.R. 295 (CA). His attempt to amend his claim for judicial review in order to include an action for damages for breach of Community law was rejected, R. v. Secretary of State for the Home
Department, ex p. Gallagher [1996] 2 C.M.L.R. 951 (CA). See also Case C 197/89 Massam Dzodzi v. Belgium, [1990]
E.C.R. I-3763; Joined Cases 115 and 116/81, Adoui and Cornuaille, [1982] E.C.R. 1665; [1982] 3 C.M.L.R. 631; Case
131/79, R. v. Secretary of State for the Home Department, ex p. Santillo, [1980] E.C.R. 1585; [1980] 2 C.M.L.R. 308.
See R. White, “Procedural Guarantees and Expulsion” (1996) 21 E.L.Rev. 241.

33.

Special Immigration Appeals Commission Bill 1997 (HL 1997-1998).

34.

See, e.g. Ahmed v. Austria, Eur. Court H.R., judgment of December 17, 1996; (1997) 23 E.H.R.R. nyr.

35.

Article 33(2).

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