Published: Wed, 07 Mar 2018
Chahal v UK  23 EHRR 413
DEPORTATION – INDIAN CITIZEN – ARTICLE 3 ECHR – RISK OF TORTURE OR DEGRADIG TREATMENT BY FOREIGN STATE
C, an Indian citizen, was given indefinite leave to remain in the UK after entering illegally. In 1984 he visited India and, due to his associations with the Sikh separatist movement, was detained and tortured by police. Deportation proceedings were initiated after C's return and his application for political asylum was refused. As the decision to deport concerned national security, he had no right of appeal to an independent tribunal. His case was examined by an advisory panel, who reported to the Secretary of State, but C was allowed no representation and was not told of the evidence against him. C's application for judicial review failed as, in the absence of evidence of the risk posed to national security, the court was unable to assess whether the Secretary of State's decision to refuse asylum was irrational.
The principal issue before the European Court of Human Rights concerned the nature of the prohibition against torture and degrading treatment guaranteed under Art.3 of the European Convention of Human Rights, namely whether this protection was absolute or could be qualified in the interests of national security and the prevention of terrorism.
Art.3 of the ECHR set out an absolute prohibition against “torture or inhumane or degrading treatment”, regardless of the circumstances of the case; the primary consideration in the present case was not national security but rather the possibility that C would be subjected to such treatment in the event of his deportation. As there was substantial evidence of serious human rights abuses by the Indian authorities, and as their assurances of C's safety were not wholly convincing, C’s deportation would violate Art.3.
The ECtHR also found that here had been violations of Art.5.4 in the refusal to allow C recourse to domestic appeal procedures, as it should be possible to protect confidential information without denying access to the court system.
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