With politicians aiming to ‘take back control’ of the courts Priti Patel seems to be intent on curbing the use of human rights laws to block deportations through her Fair Borders Bill. But will it make any difference? Barrister Ben Keith is not so sure.

The Home Secretary has again been raising legal eyebrows with her rhetoric on immigration and human rights. She told the Conservative Party Conference that the new Fair Borders Bill would limit the power of judges to prevent removal from the United Kingdom because of fear of a breach of Article 3 of the European Convention on Human Rights. She cited Theresa May attempt to codify Article 8 (Right to a Private and Family Life) of the convention using very strict criteria. There has been some powerful language around the topic but the issues of human rights, asylum and immigration are conflated to try and attack the system.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” says Article 3 of the European Convention on Human Rights.  There are no caveats to the statement and no proportionality consideration. The right to be treated like a human extends to everyone, even those who have committed the most horrific of crimes. The language from the government that Article 3 had been interpreted too broadly and criteria would be implemented to help judges determine the meaning of inhumane and degrading.

So, it is a ‘brave’ government which tries to limit the power of the courts to enforce those rights. The narrative around the story is that Foreign Criminals are using Article 3 to prevent their deportation from the UK. The plan is to give judges a set of criteria with which to analyse whether someone might be subject to inhumane and degrading treatment if deported. This, in my experience, isn’t actually a problem. To win an Article 3 case is extremely difficult. The person must be at serious threat to life or violence. In a case involving someone with a medical condition they must be almost on death’s door. Our courts and the ECHR only find breaches of Article 3 in exceptional circumstances. In the first 6 months of 2020 the ECHR granted only two injunctions against the UK in American Extradition Cases (one was my client).  Examples of Article 3 inhumane conditions are overcrowded prisons where inmates have to share beds and are locked up for 23 hours a day, prisons where beatings and sexual assault enforce discipline – horrendous places with dreadful conditions. Changing the law will make no difference in respect of Article 3 and only serve to muddy the waters.

This article was published on Edward Fennell's Legal diary on 23 October 2020. 

Ben Keith is a leading specialist in Extradition and International Crime, as well as dealing with Immigration, Serious Fraud, and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, Criminal and Civil Court of Appeal as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations. He is ranked in tier 1 for Extradition in Chambers and Partners and The Legal 500.