Sikh's expulsion would breach human rights

LAW REPORT v 20 November 1996

Chahal v United Kingdom; European Court of Human Rights; 15 November 1996

The prohibition in article 3 of the European Convention on Human Rights against the use of "torture or inhuman or degrading punishment" was absolute and fundamental, and applied to a person suspected of terrorist activities as much as to anyone else. Whatever the evidence against him, such a person could not be deported if to do so would subject him to violations of article 3 in the receiving state.

The European Court of Human Rights ruled, by 12 votes to 7, that the deportation of Karamjit Singh Chahal would violate article 3 and, unanimously, that there had also been violations by the UK of articles 5.4 and 13 of the Convention in his case. Article 5.4 provided:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

By article 13,

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority . . .

The applicant, an Indian citizen, entered the UK illegally in 1971 but in 1974 was granted indefinite leave to remain. On a visit to the Punjab in 1984 he became involved in organising passive resistance in support of a Sikh homeland. He was arrested and tortured by the Punjab police. On his return to the UK he became a prominent figure in the affairs of British Sikhs.

In August 1990 the Home Secretary decided to deport Mr Chahal on grounds of national security and the international fight against terrorism. He had been detained in custody ever since. His application for political asylum was refused.

Because of the national security elements of the case, Mr Chahal had no right of appeal to an independent tribunal, but on 10 July 1991 his case was considered by an advisory panel. He was not told of the evidence against him, was not allowed to be represented by a lawyer and was not told of the panel's advice to the Home Secretary, who signed a deportation order on 25 July 1991. An application for judicial review failed because the courts did not have access to the national security evidence against Mr Chahal and so could not assess whether the refusal of asylum was irrational or perverse.

The European Court of Human Rights said article 3 enshrined one of the most fundamental values in democratic societies. The court was aware of the difficulties faced by states in protecting their communities from terrorist violence. But even in these circumstances, the Convention prohibited in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the person in question. This prohibition was equally absolute in expulsion cases.

It was therefore unnecessary to consider the UK government's untested, but no doubt bona fide, allegations about Mr Chahal's terrorist activities and his threat to national security. The only relevant question was whether substantial grounds had been shown for believing that he would be ill treated in India.

Having regard to the evidence, corroborated from various sources, of serious human rights violations both in the Punjab and elsewhere in India, the court was not persuaded that assurances by the Indian government, were adequate to guarantee Mr Chahal's safety. It followed that his deportation would violate article 3.

As to article 5.4, the use of confidential material might be unavoidable where national security was at stake, but that did not mean the national authorities could be free from effective control by domestic courts. It was possible to employ techniques which accommodated legitimate security concerns about the nature and sources of intelligence information and yet accorded the individual a substantial measure of procedural justice.

As to article 13, given the fundamental importance of the prohibition in article 3, an effective remedy for Mr Chahal's complaint required independent scrutiny of his claim that he would be ill treated if deported to India. The lack of such scrutinty in Mr Chahal's case violated article 13.