UK Immigration and European Convention Research Proposal

In the event that the analysis of records of telephone, e-mail and internet use was considered to amount to an interference with respect for private life or correspondence, the Government contended that the interference was justified. First, it pursued the legitimate aim of protecting the rights and freedoms of others by ensuring that the facilities provided by a publicly funded employer were not abused. Secondly, the interference had a basis in domestic law in that the College, as a statutory body, whose powers enable it to provide further and higher education and to do anything necessary and expedient for those purposes, had the power to take reasonable control of its facilities to ensure that it was able to carry out its statutory functions. It was reasonably foreseeable that the facilities provided by a statutory body out of public funds could not be used excessively for personal purposes and that the College would undertake an analysis of its records to determine if there was any likelihood of personal use which needed to be investigated. In this respect, the situation was analogous to that in Peck v. The United Kingdom, no. 44647/98, ECHR 2003?I. Finally, the acts had been necessary in a democratic society and were proportionate as any interference went no further than necessary to establish whether there had been such excessive personal use of facilities as to merit investigation." (Legile Internetului, 2009)

In the same case the Court's case-law holds that telephone calls made from business premises are "prima facie covered by the notions of 'private life' and 'correspondence' for the purposes of Article 8-1." (Legile Internetului, 2009) Therefore, it is only logical that emails sent from a business premises should receive similar protection under Article 8, as well as should information obtained from monitoring personal use of the Internet. In this case it is related that the employee was not given any notice that her calls might be monitored so there was no reasonable expectation that her calls were not private made from the telephone at work and it is stated that "the same expectation should apply in relation to the applicant's email and internet use. The court next addressed whether there was any interference with the rights guaranteed under Article 8 and it is stated that the court "recalls that the use of information relating to the date and length of telephone conversations and in particular the numbers dialed can give rise to an issue under Article 8 as such information constitutes an "integral element of the communications made by telephone." (Legile Internetului, 2009). The court held that the "...mere fact that these data may have been legitimately obtained by the College, in the form of telephone bills, is no bar to finding an interference with rights guaranteed under Article 8 (ibid). Moreover, storing of personal data relating to the private life of an individual also falls within the application of Article 8-1. Thus, it is irrelevant that the data held by the college were not disclosed or used against the applicant in disciplinary or other proceedings." (Legile Internetului, 2009) the Court stated that it considered "...that the collection and storage of personal information relating to the applicant's telephone, as well as to her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Article 8." (Legile Internetului, 2009)

B. Article 3

Article 3 protects individuals from being removed to their country of origin if that means that they will be tortured upon their removal. The work of Mathias Vermeulen (2009) entitled: "UN Special Rapporteur Releases Report on the Role of Intelligence Agencies in the Fight Against Terrorism" states that Martin Scheinin, UN Special Rapporteur stated "Key concepts that underlie most intelligence-sharing agreements increase the possibility that many countries, including liberal democracies opposed to torture become complicit in international crimes." (Vermeulen, 2009) Scheinin additionally is noted as having stated that the "active participation by a state through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interview with a person who is being held in places where he is tortured or subject to other inhuman treatment, can be reasonably understood as complicity condoning torture. This would be a violation of the UN Convention Against Torture." (Vermeulen, 2009)

Provisions are also made in the law under Article 8 relating to what constitutes 'family' and 'private life'. An opinion of the same is provided in the Information Centre about Asylum and Refugees (ICAR) document entitled: "UK Asylum Law and Process" section 3.16.1. The Impact of Human Rights Law states that the passing of the 1998 Human Rights Act in the UK which was put into effect in October 2000 effectively incorporated the European Convention on Human Rights (ECHR) into UK law and while not specifically addressing "the rights of asylum seekers or refugees, the basic human rights enshrined in the law, as a results of the 1998 Act do have an important impact upon asylum seekers." (2008) There are immigration rules that state requirements to ensure that the actions of the immigration officers and staff comply with the Human Rights Act. Stated as being of "particular relevance" are both Article 3 and Article 8 of the ECHR. It is prohibited to return an individual to a country, under Article 3 when that individual will "be subjected to torture or inhuman or degrading treatment or punishment." (ICAR, 2008) the asylum seeker must "...demonstrate that they risk harm as a result of one of the five Convention reasons. However, the purpose of Article 3 is to protect individuals from harm regardless of why they are being harmed." (ICAR, 2008) Article 3 is an absolute right and cannot be derogated from." (ICAR, 2008) There are several cases that have focused on whether forced return of an individual to a country where they are denied access to needed medical treatment breaches Article 3.

Case law is found in the (2005) case of N. v Secretary State for the Home Department in which it was ruled by the House of Lords "...that a breach would only occur in exceptional circumstances such as the need to prevent suffering while the individual is dying." (ICAR, 2008) Under Article 8 of the ECHR "unjustifiable interference in an individual's right to respect for private and family life" is prevented. Therefore, according to the ICAR report "It is therefore possible for asylum seekers who have established a family in the UK or have developed significant social networks to argue that removing them from the UK would be a breach of their rights under Article 8. The UK courts have interpreted the concept of 'private life' to include the applicant's mental health and a consideration of any decline likely to be caused by the difference between the treatment they receive in the UK and that available in their country of origin. However, in contrast to Article 3, Article 8 is not absolute, but is subject to a proportionate approach. For example, the state can argue that the need for firm immigration control outweighs the needs of a family to stay together. Asylum seekers may also seek protection in the UK on the grounds that their rights under other articles of the ECHR would be breached by their removal. This includes: the right to life (Article 2); the right to liberty and security (Article 5); the right to a fair trial (Article 6) and the right to marry and found a family (Article 12). Article 14 provides a right not to be discriminated against in the enjoyment of other ECHR rights." (ICAR, 2008)

CHAPTER THREE

I. Ullah & Do. Case

In the case of Ullah & Do, Court of Appeals (2002) the focus is whether or not an alleged breach of Article 9 of the ECHR - the right to freedom of thought, conscience and religion - inhibits the removal of asylum seekers from the UK. Lord Phillips made the determination that the drafter of the ECHR did not intend to restrict the right of governments to maintain immigration controls, except where the circumstances were so severe that a breach of Article 3 would occur." Ullah & Do was heard again in 2004 and while upholding the Court of Appeals decision that on the facts presented "in these cases removing the applicants to their home countries of Pakistan and Vietnam would not be in breach of the Human Rights Act 1998, the Lords were not convinced that the European Court of Human Rights (ECHR) had ruled out the possibility of an asylum seeker relying on Article 9 alone and were consequently not prepared to take this course of action themselves." (ICAR, 2008)

According to ICAR (2008) the consequence of the Ullah & Do judgment is that when returning…