Article 3 of the European Convention on Human Rights

Background

The rights enshrined in the European Convention on Human Rights were

implemented in English law in the Human Rights Act 1998, which came into force on
2 October 2000.

Article 3 of the ECHR effectively provides a further argument against removal for
asylum applicants – even if an asylum applicant fails to establish refugee status
within the Refugee Convention, they can argue that removal to their country of
origin will result in a breach of Article 3. Therefore, it provides an alternative basis
for seeking leave to remain in the UK and will be considered as an imputed claim in
all asylum claims.

A successful Article 3 claim will give rise to a grant of Humanitarian Protection or

Discretionary Leave.

The Law

Article 3 provides that:

“No one shall be subjected to torture or to inhuman or degrading treatment

or punishment”.

Article 3 is an absolute right, ie it cannot be balanced against competing interests like

some of the other ECHR rights and it applies even in times of war or other public
emergency. Everyone is entitled to respect for their Article 3 rights regardless of
issues weighing against them, such as maintaining effective immigration control.

The paper entitled “Introduction” sets out that there is a territorial limit on the UK’s
obligations under the ECHR – in general, they only arise where the alleged treatment
contrary to the ECHR right will occur within the UK. As set out, the UK’s obligations
under Article 3 are engaged where there is a real risk that removal would give rise to
a breach of Article 3.
The extent of Article 3

Article 3 is broader in its application than the concept of ‘persecution’ under the
Refugee Convention as follows:
 There are no exclusions from Article 3 protection on grounds of national security
or criminality
 The applicant does not have to show that the harm feared is for a particular
reason, eg race, religion, nationality, membership of a particular social group or
political opinion
 The harm feared need not have the character of “persecution” or even have the
character of aggressive action necessitating international protection (eg Article 3
medical claims)

The threshold for Article 3

The absolute nature of the right leads to a very high threshold. Many factors will be
taken into account by a court considering whether someone faces a real risk of
treatment contrary to Article 3 on return, eg the nature, seriousness and duration of
the treatment, the mental and physical effects of the treatment, the age and gender
of the applicant and the applicant’s state of health.

In the case of Pretty v UK, the European Court of Human Rights provided the
following guidance on treatment that will reach the Article 3 threshold:
“As regards the types of “treatment” which fall within the scope of Article 3
of the Convention, the Court’s case law refers to “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 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 Pretty guidance was adopted by the Court of Appeal in the case of Q v SSHD and
the following was added:
“Treatment implies something more than passivity”.

The ECHR is a living instrument so types of ill treatment that fall within Article 3 may
change over time as social conditions change and former practices become
unacceptable (eg corporal punishment).
Torture: this is the most serious kind of Article 3 ill treatment and consists of
deliberate inhuman treatment, causing very serious suffering (physical and/or
mental suffering). Torture implies deliberately inflicted suffering of particular
intensity and cruelty.
Ill treatment that could constitute torture:
 Beating suspects in a police station to extract a confession and information about
political activities

Inhuman treatment or punishment: less severe than torture. The threshold is still
high but the treatment doesn’t have to be deliberately inflicted. Ill treatment that
could constitute inhuman treatment or punishment (particularly cruel and deliberate
examples may meet the threshold for torture):
 Serious physical assaults
 Psychological interrogation methods which fall short of torture (eg
food/drink/sleep deprivation, hooding, subjecting suspect to noise, forced
standing against wall)
 Inhuman detention conditions
 Death row phenomenon (ie the combination of circumstances to which an
applicant would be exposed if sentenced to death for a capital offence – takes
into account duration on death row, the conditions and the applicant’s particular
circumstances, such as age and mental state)
 Rape
 Forced abortion
 Forced sterilisation
 Acts involving genital mutilation and allied practices

Degrading treatment or punishment: less severe than torture. Treatment may be

degrading if it arouses in the victim feelings of fear, anguish or inferiority capable of
humiliating and debasing him and possibly breaking his physical and moral
resistance. Whether treatment is degrading will depend on whether a reasonable
person of the same age, sex and health would have felt degraded. Ill treatment that
could constitute degrading treatment or punishment:
 Severe racial discrimination (and other acute forms of discrimination)
Although severe discrimination is capable of meeting the threshold for degrading
treatment or punishment, the threshold is high. For example, Roma in the Czech
Republic face widespread discrimination, eg in the allocation of housing,
employment, education (a disproportionately high number of Roma children are
transferred to schools for children with learning difficulties) and access to services.
Roma may face discrimination in shops, racially-motivated violence from skinheads
and name calling. However, the discrimination faced by Czech Roma is very unlikely
to meet the Article 3 threshold (see the case of Hrbac cited in the Czech OGN):
“The position in the Czech Republic is such that it will in our view be
impossible for a Rom or anyone who has suffered as a result of discrimination
against Roma to establish a well-founded fear of persecution”.
What constitutes a real risk of Article 3 treatment? The Court of Appeal held in
Bagdanavicius that it is the same threshold of risk as in asylum claims, ie does the
applicant have a well-founded fear of treatment contrary to Article 3 on return? This
question is applied regardless of whether the receiving State is a signatory to the
ECHR. As with asylum claims, when assessing the risk the caseworker will have to
consider the availability of State protection (in non-State agent cases) and whether
internal relocation would be an option (see separate handouts on protection and
internal relocation). There will not be a real risk of Article 3 treatment on removal
where the treatment will be from non-State agents and the State provides a
sufficiency of protection and/or where internal relocation is a viable alternative. The
test for sufficiency of protection and internal relocation in the context of Article 3 is
the same as for the Refugee Convention.

Standard of living cases

In Ngandu (21/9/01), the IAT held that the DRC’s failure to provide adequate food,
shelter and healthcare would not breach Article 3 event though the IAT accepted
that the living conditions in the DRC were “appalling”. If the applicant was returned
to the government-controlled area of the DRC, he would be no worse off than any
other DRC citizen living there.

Article 3 will not be breached simply because a person will be destitute on return
and the threshold is particularly high when the harm in question has not been
directly inflicted by the State.

Medical cases

Medical cases will only reach the threshold for Article 3 in rare and extreme
circumstances. The general principle is that a person cannot avoid removal on the
basis that they should continue to benefit from medical, social or other form of
assistance provided. In medical cases where the claim arises essentially out of a lack of
health care and resources in the country of origin (in contrast to what has been
available in the UK), applicants will only be granted leave to remain in the UK where
there are particular factors in the case which make it exceptionally compelling. Article
3 is only engaged in cases of this kind "where the humanitarian appeal of the case is so
powerful that it could not in reason be resisted by the authorities of a civilised State".
In other words, where the claimant would, in effect, be in no worse position than the
majority of people in his country of origin who suffer from the same condition, then a
grant of leave would normally be refused.
Factors which might demonstrate exceptional circumstances include the following:
 if the claimant is in the terminal stages of illness and has a short life expectancy
even with treatment
 if the claimant has lived in the UK for a long length of time
Factors which will generally not, on their own, demonstrate exceptional circumstances
include the following:
 if the claimant would be unlikely to receive treatment in the country of origin or if
the treatment would be less effective than that which is being received in the UK
 if the claimant would not be able to pay for treatment
 if the claimant has no family in the country of origin

Prison conditions

Whether poor prison conditions are capable of reaching the Article 3 threshold is
fact specific. Relevant considerations include:
 Levels of overcrowding
 Solitary confinement (segregation and isolation)
 Sleep deprivation, eg by constant lighting, lack of adequate sleeping facilities
 Complete absence of exercise
 Absence of sanitation
 Absence of ventilation
 Continuous surveillance
 Absence of medical treatment
 Malnourishment
 Vermin infestations
 Absence of natural light
In order to reach the Article 3 threshold, conditions of detention have to reach a
minimum level of severity. Several of the above would have to be present for a
significant duration in order for the suffering to reach that minimum level of severity.

The European Court of Human Rights in Kalashnikov v Russia [2002] held that the
following conditions in Russia cumulatively constituted a breach of Article 3:
 severe overcrowding (0.9-1.9m2 per prisoner whilst the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
set an approximate desirable guideline for a detention cell of 7m2 per prisoner)
 insanitary environment (inadequate ventilation, confinement to overcrowded
and stuffy cell for 22-23 hours per day, cell infested with pests (cockroaches and
ants) without anti-infestation treatment, applicant contracted various skin
diseases and fungal infections and was detained on occasion with detainees
suffering from syphilis and tuberculosis, lavatory pan not separated from living
area - photos showed filthy cell and toilet area with no real privacy)
 detrimental effect on the applicant's health and well-being (caused considerable
mental suffering - beds were shared and sleep was based on 8-hour shifts whilst
the cell was lit constantly which resulted in sleep deprivation, conditions must
have diminished applicant's human dignity and aroused in him such feelings as to
cause humiliation and debasement)
 the length of the period during which the applicant was detained in such
conditions (4 years and 10 months)
The Court held that the fact that there was no indication the Russian authorities
positively intended to humiliate or debase the applicant could not exclude a finding
that Article 3 had been breached.

On the other hand, in SSHD v Fazilat [2002], the IAT held that the following
conditions in Iran did not breach Article 3:
 some prison facilities are notorious for the cruel and prolonged acts of torture
inflicted upon political opponents of the government – there was no real risk that
the applicant in this case would be treated as if he were a political opponent
 prison conditions are harsh. Some prisoners are held in solitary confinement or
denied adequate food or medical care in order to force confessions – the
applicant in this case was not at all likely to face ill treatment in order to force a
confession
The Tribunal did “not doubt that prison conditions in Iran are far from ideal … *and+
may not measure up to what is expected in this country … Recognition has to be had
to the situation in individual countries and to the standards that are accepted, and
expected, in those countries. Of course in relation to Article 3, there is a line below
which the treatment cannot sink … *but+ the threshold has to be a high one because,
otherwise, it would be, as one recognises, quite impossible for any country to return
to a non-signatory an individual who faces prosecution, rather than any sort of
persecution.”

Consideration of Article 3 by caseworkers

Caseworkers will consider whether the alleged treatment on return is capable of

breaching Article 3 in tandem with the asylum claim, ie that it is capable of
amounting to persecution. Caseworkers may consider the following:
 Whether the treatment clearly falls short of the Article 3 threshold
 Whether, for alleged ill-treatment by non-State agents, the State provides a
sufficiency of protection in respect of that type of treatment
 The availability of internal relocation

When considering sufficiency of protection and internal relocation, caseworkers will

rely heavily on the information and the steer in the relevant OGN.
Approach to take to Article 3 in the OGN

Article 3 will be relevant for all the main types of claim. For each of the main types of
claim, the OGN should consider the type of claim caseworkers should expect to see
(which will include the type of victim and the type of ill treatment alleged) and then
consider whether the country information allows us to defend claims of that type on
the basis that there is a general sufficiency of protection provided by the authorities
in respect of that type of treatment. The viability of internal relocation should also
be considered.

For countries where prison conditions are particularly harsh, the OGN should provide
a steer on whether they are capable of reaching the Article 3 threshold (taking the
above factors into account). Where, for example, the US State Dept sets out that
prison conditions in a particular country are life threatening, the reasons why should
be considered. Where a country is taking active steps to improve prison conditions,
that should be set out along with details of progress made. Where prison conditions
in a particular country are notably worse in particular detention facilities, that should
also be set out.

It cannot be up to individual caseworkers to determine whether prison conditions in

a particular country will amount to a breach of Article 3. This is for the CIPU country
officer, who should provide guidance on this (where they are able to do so from the
available country information). To leave such decisions to individual caseworkers
would result in inconsistency in decision making. Therefore, the following paragraph
in an OGN would be unhelpful:
“Caseworkers may wish to consider whether prison conditions for detainees
are such that they contravene Article 3 of the ECHR”.
The guidance in the OGN should set out whether prison conditions meet the Article 3
threshold – if this will depend on particular factors, such as the type of detention
facility, that should be set out in the OGN. If the steer is that the Article 3 threshold
is met, the OGN should set out the cumulative factors that have led to that
conclusion. If prison conditions are particularly harsh and are likely to meet the
Article 3 threshold for particular applicants only (eg those in a particular facilities or
those convicted of particular types of crime), that should also be in the OGN.

Since the Article 3 threshold for medical cases is particularly high, the OGNs do not
have to go into great detail about different available treatments. However, the OGN
should cover
 Whether there is free healthcare and, if so, whether there are any key (ie life
saving) facilities that would not be available, eg particular surgical procedures,
cancer treatment, kidney dialysis, anti-retroviral therapy
 Whether the gaps in free healthcare are filled by private healthcare
 The availability of mental health care

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