Background
The UK has been a signatory to the European Convention on Human Rights (ECHR) since 1953 and as such it is bound by its provisions. However, as European law it could not be directly enforced in UK courts. Any case on ECHR grounds had to go to the European Court of Human Rights in Strasbourg to be heard. This was expensive and time-consuming.
In 2000, the Human Rights Act came into force, incorporating the ECHR into UK law and making it possible to argue ECHR points of law before immigration judges and the higher courts within the UK. The Human Rights Act places a duty on all public authorities, including the Home Office, to act in a way that is consistent with the ECHR.
Many of the rights protected by the ECHR have extra-territorial effect. This means that the UK is responsible for the foreseeable consequences of any expulsion or extradition it enforces. This prohibits the return of people to situations where there is a real risk of harm that would breach ECHR rights. Asylum seekers may apply to stay in the UK on this basis. Such claims are usually referred to as human rights claims.
Asylum applicants are expected to raise any human rights claims they might have when they make their asylum application. See the Asylum Process section.
Human rights claims are usually based on ECHR Article 3 (prohibiting torture or inhuman or degrading treatment), or ECHR Article 8 (upholding the right to family and private life).
Article 2: right to life
The right to life is an absolute right. This means that having agreed to abide by the ECHR a state cannot negate its obligations to uphold Article 2 under any circumstances. Article 2 also places a duty on the UK government not to return people to a country where they would, for example, be subject to extra-judicial killings. For a claim under Article 2 to succeed it must be almost certain that the right to life will be violated. Article 2 is rarely argued in an application to stay in the UK. It does not protect someone from being returned to a situation where they would face the death penalty (however this is prohibited by Protocol No 13 to the European Convention on Human Rights, which came into force on 1 July 2003).
Article 3: prohibition of torture or inhuman or degrading treatment
Article 3 is also an absolute right and is often relied upon to prevent expulsion from the UK. Much caselaw has considered what constitutes a breach of Article 3. Article 3 arguments have been used where a person is threatened with removal to a country with healthcare services so limited that their life expectancy would be significantly reduced. They have also been used where a person is threatened with return to imprisonment in inhuman or degrading conditions. Jurisprudence requires that only extreme cases are likely to succeed on Article 3 grounds.
Article 8: right to family and private Life
Article 8 is what is known as a qualified right. This means that it can legitimately be breached in times of war or other national emergencies. In addition, an interference with family or private life can be considered proportionate depending on the specific circumstances of a case. The exact meaning of private or family life is the subject of debate. The meaning of family has been defined as existing where there is family life between relatives. There is no need for marriage to establish family life, and gay relationships are recognised as family life. It has proved very difficult to argue against removal on Article 8 grounds.
See Applying for asylum for more information on the burden of proof needed to meet the refugee definition.
