Authored By: Ashitha Murugesan
Middlesex University Dubai
Abstract:
This article explores the absolute nature of Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment, and its significant implications for deportation practices. It examines how the European Court of Human Rights (ECtHR) has interpreted Article 3 to extend protections against removal to countries where individuals face a real risk of such treatment. Through landmark cases such as Soering v UK, Chahal v UK, and Saadi v Italy, the article highlights how states are prohibited from relying on public interest or national security to justify deportation in these circumstances. It also discusses the evolving application of Article 3 in medical and humanitarian cases, notably D v UK, N v UK, Paposhvili v Belgium, and Savran v Denmark, reflecting the Court’s dynamic approach. Overall, the article affirms that Article 3 remains a critical legal safeguard in ensuring human rights in deportation decisions.
Introduction:
Article 3 of the European Convention on Human Rights prohibits torture and inhuman or degrading treatment. It is an absolute right, meaning there are no exceptions or derogations, even in cases of public emergency, and it applies to everyone.[1] The European Court of Human Rights (ECtHR) has consistently affirmed that this right extends beyond acts committed within a state’s territory, as it applies in extradition, expulsion, and deportation cases. A state may violate Article 3 if it removes an individual to a country where they face a real risk of torture or inhuman or degrading treatment.
This article will explore how Article 3’s absolute nature has significantly influenced deportation practices, shaped case law at the European level, and continues challenging the balance between state sovereignty and human rights protection.
Deportation, Non-Refoulement, and the Absolute Protection of Article 3:
Article 3 of the ECHR states that “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” Unlike the other rights, Article 3 is an absolute and non-degradable right. The ECtHR has interpreted this protection to apply to a range of ill-treatment that reaches a minimum threshold of severity. In Ireland v. UK (1978), the Court distinguished between torture and inhuman or degrading treatment, setting a foundation for interpreting the severity of treatment required to fall within the scope of Article 3.[2]
While the states have the authority to regulate immigration, they are prohibited from deporting individuals to countries where they would find a real risk of torture, inhuman or degrading treatment. Article 3 ECHR also implies that the real risk standard should not be too rigid either. This principle was established in Soering v UK (1989), where the applicant argued that the prolonged death penalty and prolonged detention on death row would violate Article 3. The ECtHR ruled that the prohibition on ill-treatment applies even when the harm occurs in another country. [3] It was also reinforced in the Chahal v UK (1996) case that the state’s national interests cannot be used to outweigh or take precedence over the individual’s rights and protections if there is a real risk or ill-treatment upon removal. The UK’s attempt to deport a Sikh separatist to India on national security grounds was therefore found under a violation of Article 3, establishing that there is no balancing act between public interest and prohibition of ill-treatment.[4] Furthermore, the ECtHR in Saadi v Italy (2008) clarified that the state must assess the risk at the time of removal based on the evidence of ill-treatment in the receiving country.[5]
The ECtHR has consistently reaffirmed that states cannot justify breaches of Article 3 under any circumstances, including when dealing with foreign nationals who have committed serious criminal offences. The European Court of Human Rights has consistently held that states have a strict obligation not to remove any individuals who would face a genuine risk of torture or inhuman or degrading treatment in the receiving country.[6] This means that once substantial grounds are shown for believing an individual would suffer torture or inhuman treatment upon removal, the state has no discretion to weigh its national interests against the individual’s interest.
Scholars note that the ECtHR adopts a dynamic and evolving approach to Article 3, treating it as a living instrument that must reflect contemporary human rights standards. Rather than applying a rigid or fixed definition of what constitutes inhuman or degrading treatment, the Court assesses each case individually, allowing the scope of Article 3 to expand in response to new types of harm or vulnerability.[7]
Evolving Article 3 Protections in Medical and Humanitarian Deportation Cases:
However, the scope of Article 3 has evolved beyond protection from torture to include medical and humanitarian risks arising from removal. In medical-related cases, the ECtHR has considered whether protection should extend to a third category of situations. In doing so, the Court conducts a thorough evaluation of all relevant aspects of the case, with particular attention to the individual circumstances of the person facing deportation. Following this it also determines whether the individual’s removal would pose a genuine risk of treatment contrary to Article 3.[8] It distinguishes between two scenarios: first, where there is a real risk of serious harm due to the receiving state’s actions such as deliberate denial of treatment the sending state has an absolute obligation not to deport. Secondly, suppose the risk arises from general conditions like poverty or inadequate healthcare. In that case, the duty not to deport applies only in exceptional cases, such as an imminent risk of death or intense suffering.[9]
This approach was illustrated in D. v United Kingdom (1997), where the Court found a violation of Article 3 due to the applicant’s terminal illness and lack of medical care upon return.[10] However, in N. v United Kingdom (2008), the Court clarified that only in exceptional cases of this nature would engage Article 3 protections, thus setting a high threshold for medical-based non-refoulement claims. In this case, the applicant’s condition, while serious, was not considered sufficiently extreme to prevent removal, indicating the Court’s narrow interpretation at the time.[11]
The N v UK case also introduced an understanding of Article 3 as imposing a positive obligation on states to assess the risk of ill-treatment before deportation. The obligation requires states to conduct an individualised and thorough assessment, in the absolute prohibition of torture. However, the Court indicated that this obligation is subject to what may be reasonably expected of a state, suggesting that general or economic interests may play a role in defining the limits of what the state must do. Crucially, the Court’s case law distinguishes this from any form of balancing against public order or national security, which remains impermissible under Article 3. Therefore, while the obligation is absolute in the outcome, fulfilling that obligation may involve a degree of reasonableness, as implied in N v UK.[12]
This narrow interpretation was later reconsidered in Paposhvili v Belgium (2016), where the Court expanded the “real risk” test to include cases where removal would lead to a serious decline in health due to the lack of appropriate care in the receiving country.[13] This was further reinforced in Savran v Denmark (2021), where the Court held that deporting a mentally ill individual without proper safeguards would violate Article 3. The judgment also confirmed that the Paposhvili test offers a comprehensive standard applicable to all removals involving seriously ill individuals.[14] Therefore, the absolute nature of Article 3 continues to act as a fundamental barrier against removals that would expose individuals to serious harm, even in complex or controversial deportation cases.
Conclusion:
Article 3 of the ECHR provides absolute protection against deportation to countries where individuals face a real risk of torture or inhuman or degrading treatment. The European Court of Human Rights has reinforced this through evolving case law, particularly in medical and humanitarian contexts. Despite the challenges in balancing immigration control with human rights, Article 3 remains a vital safeguard, ensuring that human dignity is not compromised in deportation decisions.
Reference(S):
[1] Natasa Mavronicola and Francesco Messineo, ‘Relatively absolute? The undermining of Article 3 ECHR in ‘Ahmad v UK’’ (2013) 76(3) MLR.
[2] Ireland v UK App no 5310/71 (ECtHR, 18 January 1978).
[3] Soering v UK App no 14038/88 (ECtHR, 7 July 1989).
[4] Chahal v UK App no 22414/93 (ECtHR, 15 November 1996) para 76 and 88.
[5] Saadi v Italy App no 37201/06 (ECtHR, 28 January 2008) para 142.
[6] Chahal (n 4) para 74.
[7] Veronika Flegar, ‘Vulnerability and the Principle of Nonrefoulement in the European Court of Human Rights: Towards an Increased Scope of Protection for Persons Fleeing from Extreme Poverty?’ (2016) 8 Contemporary readings in law and social justice 66.
[8]Hemme Battjes, ‘In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed’ (2009) 22(3) Leiden Journal of International Law 583.
[9] Kathryn Greenman, ‘A Castle Built on Sand? Article 3 ECHR and the Source of Risk in Non-Refoulement Obligations in International Law’ (2015) 27(2) International Journal of Refugee Law 264.
[10]D v United Kingdom App no 30240/96 (ECtHR, 2 May 1997) Paras 47 – 53.
[11] N v United Kingdom App no 26565/05 (ECtHR, 27 May 2008) Paras 43 & 44.
[12] Hemme (n 8).
[13] Paposhvili v Belgium App no 41738/10 (ECtHR, 13 December 2016).
[14] Savran v Denmark App no 57467/15 (ECtHR, 7 December 2021) Para 112.
