Taking a case to Strasbourg- Theory and Practice

Author: Scott Blair | Posted: November 7, 2006

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The following is a extract of a paper delivered by Scott Blair, Advocate, at a Seminar on 6 November 2006. The Seminar was organised by Legal Services Agency, Glasgow.

INTRODUCTION

The European Court of Human Rights should (if it ever was) no longer be looked on as a remote and, to most practitioners, an irrelevant institution. If your case is unsuccessful in the national courts, then Strasbourg may have to be looked at.

This is particularly so for those in the asylum or immigration field who may have no further domestic remedy left. With the advent of fast track procedures and statutory review available domestic remedies are fewer and less accessible and effective than ever.

In the asylum or immigration field over the years the Strasbourg Court has found violations of the ECHR against the United Kingdom in a number of areas.

Important cases include East African Asians v. UK (1981) 3 EHRR 76 (Articles 8 and 14); Abdulaziz, Cabales and Balkandali v. UK (1985) 7 EHRR 471 (Articles 8 and 14); Soering v. UK (1989) 11 EHRR 439 (Article 3); Chalal v. UK (Articles 3, 5 and 13); D v. UK (1997) 24 EHRR 423 (Article 3); Hilal v. UK (2001) 33 EHRR 2(Article 3).

In other cases no violations have been found but important legal principles have been established. For example in Vilvarajah v UK (1991) 14 EHRR 248  the Strasbourg Court set out the general approach to the appraisal of risk in the context of removals.  First, it examines the issue in light of all available information, including information obtained of its own motion.  Secondly, while its assessment is based primarily on the facts as know and ought to be known by the state, it also takes into account subsequent information.  Thirdly, ill-treatment must attain a minimum level of severity if it is to trigger the application of Article 3. A mere possibility of ill-treatment is not sufficient.  The Court also held that the availability of judicial review did in principle amount to an effective remedy under Article 13 even although judicial review was not an appeal on the merits of an asylum or immigration decision.

(For full paper please download using link at the top of the page.)