USM and All Applicable Grounds (including the Right to Life)

USM and All Applicable Grounds (including the Right to Life) Hectar Pun, SC Adjunct Professor, City University of Hong Kong Adjunct Professor, The University of Hong Kong 18 June 2017 1

Roadmap for Today A. Unified Screening Mechanism (USM) B. Modified and/or Clarified USM: All Applicable Grounds C. Right to Life D. Other absolute and non-derogable rights(?) 2

A. The Unified Screening Mechanism A1. Torture claims under Part VIIC of the Immigration Ordinance (Cap. 115) A2. CIDTP claims under Art 3 HKBOR A3. Refugee claims under the United Nations Convention Relating to the Status of Refugees ( the 1951 Convention ) as amended by the Protocol relating to the Status of Refugees ( the 1967 Protocol ) A4. Unified Screening Mechanism (USM) 3

B. Modified and/or Clarified USM: All Applicable Grounds B1. Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 B2. Latest Information released by the Immigration Department 4

C. Right to Life C1. Sources C2. Non-derogable and absolute right? C3. Content of the Right to Life C4. Applicable test in deportation/removal cases 5

A1: Background UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( CAT Convention ) Extended to Hong Kong since 1992 Art 3(1): No State Party shall expel, return ( refouler ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Claims for non-refoulement protection under Art 3 CAT Convention ( torture claims ) 6

A1: Background From about 2004 to 3/12/2012, torture claims were handled by ImmD under an administrative screening mechanism Secretary for Security v Prabakar (2004) 7 HKCFAR 187: ImmD has to make its own assessment and high standards of fairness must be demanded in the determination of torture claims FB v Director of Immigration & Secretary for Security [2009] 2 HKLRD 346: the then administrative scheme did not meet the high standards of fairness December 2009, enhanced administrative screening mechanism adopted Publicly-funded legal assistance is made available to all torture claimants through the DLS When the ImmD makes a decision on torture claims, it must inform the claimants of the reasons for its decision in written form Claimants aggrieved by ImmD s decisions have a right to lodge an appeal by way of petition to Adjudicators (under Article 48(13) of the Basic Law) 7

A1: Statutory Torture Claims Immigration (Amendment) Ordinance 2012 (Ord No. 23 of 2012) Enacted in July 2012; came into operation on 3 December 2012 New Part VIIC (Cap. 115) provides for a statutory process (as opposed to an administrative process) for determining torture claims made by persons in Hong Kong under the CAT Convention Establishment of the Torture Claims Appeal Board to handle statutory appeal under s 37ZQ(1) of IO (as opposed to petition under Basic Law) 8

A1: Torture under CAT Convention S37U(1) Immigration Ordinance (Cap 115): torture means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (a) for such purposes as (i) (ii) obtaining from that person or a third person information or a confession; punishing that person for an act which that person or a third person has committed or is suspected of having committed; or (iii) intimidating or coercing that person or a third person; or (b) for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions. 9

A2: Art 3 HKBOR / Art 7 ICCPR No torture or inhuman treatment No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 10

A2: Art 3 HKBOR / Art 7 ICCPR 160. [The consequence is] therefore that a sufficiently established threat of BOR art 3 being violated by the receiving country if the deportee should be sent there constitutes a ground for restraining the Hong Kong Government from proceeding with the deportation. Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, per Ribeiro PJ 11

A2: Art 3 HKBOR / Art 7 ICCPR Ubamaka, 172-174: a claimant must show substantial or strong grounds for believing that: (a) the ill-treatment he would face if expelled attains a minimum level of severity and (b) he faces a genuine and substantial risk of being subjected to such mistreatment. It is clear that a very high threshold must be surmounted to establish each of these requirements. 12

A2: Art 3 HKBOR / Art 7 ICCPR GA, 45-52: inhuman, degrading treatment: (a) (b) (c) The treatment is inhuman or degrading if, to a seriously detrimental effect, it denies the most basic needs of any human being. Inquiry into relevant facts and circumstances; no precise formula as to whether, in any given case minimum level of severity has been reached. Relevant factors. Context important. Exercise of judgment. A genuine and substantial risk: Evidence be adduced by applicant to show there is real risk of being subjected to IDT. Put differently, a substantial and imminent risk. GA, 54: a high threshold has to be surmounted. 13

A3: The 1951 Convention Definition of the term refugee Art 1(2) of the 1951 Convention... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.... 14

A3: The 1951 Convention Prohibition of expulsion or return ( refoulement ) Art 33 of the 1951 Convention 1. No Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. 15

A3: Risk of Persecution under the 1951 Convention The 1951 Convention and 1967 Protocol do not apply to Hong Kong But in C v Director of Immigration (2013) 16 HKCFAR 280, Tang PJ held: 56. To conclude, I am of the view that, given it is the practice of the Director, when deciding whether or not to exercise his power under the Immigration Ordinance to remove a refugee claimant to the country of putative persecution, to have regard to humanitarian considerations, and that whether such claim is well-founded, is a relevant humanitarian consideration, the Director must determine whether the claim is wellfounded. Moreover, any such determination must satisfy the high standards of fairness required having regard to the gravity of the consequence of the determination. 16

A3: Art 33(2) of 1951 Convention Note: Art 33(2) exception may not be applicable in respect of torture claims and CIDTP claims under Art 3 HKBOR If a claimant has a well-founded fear of being persecuted for reasons of his political opinion and his freedom is threatened but his claim does not amount to torture and/or CIDTP, the Director may make use of art 33(2) and insist on refoulement. See C v Director of Immigration (2013) 16 HKCFAR 28, 42 17

A4: Unified Screening Mechanism Commenced operation on 3 March 2014 Assessment of non-refoulement claims on all three grounds: 1. Statutory: Torture under CAT Convention (s 37U(1) of the Immigration Ordinance; cf Art 1 of the CAT Convention) 2. Administrative: CIDTP under Art 3 of the HKBOR 3. Administrative: Persecution risk with reference to non-refoulement principle under Art 33 of the 1951 Convention 18

A4: Unified Screening Mechanism Torture under CAT Convention Under a statutory scheme: s 37U(1) of the Immigration Ordinance CIDTP under Art 3 HKBOR Under an administrative scheme Persecution under Art 33 of the 1951 Convention Under an administrative scheme 19

A4: Non-Refoulement Claims A person outside his country of nationality and in Hong Kong may make a non-refoulement claim only if: (a) (b) he is subject or liable to removal from Hong Kong, and apart from the risk state, he does not have a right of abode or right to land in, or right to return to, any other State in which he would be entitled to non-refoulement protection; or he is a person whose surrender is requested in extradition/surrender proceedings. A non-refoulement claimant may not be removed from Hong Kong to a risk state May be removed to a specified country that is not a risk state 20

B. Modified and/or Clarified USM: All Applicable Grounds B1. Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 B2. Latest Information released by the Immigration Department 21

B1: Ubamaka (2013) Key principles Right to freedom from CIDTP under Art 3 HKBOR is an absolute and non-derogable right If a person not having the right to enter and remain in Hong Kong has sufficiently established a threat of Art 3 HKBOR being violated by the receiving country should the person be deported there, it constitutes a ground for restraining the government from proceeding with the deportation 22

B1: Ubamaka Date of decision: 21 December 2012 Facts In 1991, the Appellant, a Nigerian national, was arrested in Hong Kong at the airport for drug trafficking Convicted, sentenced to 24 years imprisonment 23

B1: Ubamaka Facts Whilst in prison, the Appellant learned that it was a Nigerian offence to (a) export drugs from Nigeria to another country, and (b) bring the name of Nigeria into disrepute when found guilty of a drug offence in any foreign country Punishable by up to 5 years imprisonment and forfeiture of assets even though the defendant may have been convicted and punished abroad 24

B1: Ubamaka The Appellant was released after serving 16 years of his sentence in HK Secretary for Security ordered deportation to Nigeria The Appellant challenged the deportation order against him on the grounds that: Deportation would expose him to double jeopardy prohibited by Art 11(6) HKBOR Deportation would amount to sending him to face CIDTP prohibited by Art 3 HKBOR 25

B1: Art 3 of the HKBOR No torture or inhuman treatment No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 26

B1: Art 11(6) of the HKBOR Rights of persons charged with or convicted of criminal offence No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong. 27

B1: s 5 of the HKBORO Public emergencies (1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, measures may be taken derogating from the Bill of Rights to the extent strictly required by the exigencies of the situation, but these measures shall be taken in accordance with law. (2) No measure shall be taken under subsection (1) that- (a) is inconsistent with any obligation under international law that applies to Hong Kong (other than an obligation under the International Covenant on Civil and Political Rights); (b) involves discrimination solely on the ground of race, colour, sex, language, religion or social origin; or (c) derogates from articles 2, 3, 4(1) and (2), 7, 12, 13 and 15. 28

B1: s 11 of the HKBORO Immigration legislation As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation. 29

B1: Ubamaka Government s response S 11 of HKBORO prevents the Appellant from relying on HKBOR in challenging deportation order, as he had no right to enter and remain in Hong Kong Evidence did not establish anything amounting to CIDTP CFI set aside deportation order CA reinstated deportation order CFA dismissed the appeal 30

B1: Ubamaka CFA decision Challenge on double jeopardy failed S 11 of the HKBORO excludes reliance on Art 11(6) of the HKBOR Fresh prosecutions abroad not covered Right to freedom from CIDTP under Art 3 of the HKBOR is an absolute and non-derogable right which s 11 HKBORO cannot override However, evidence fell short of establishing CIDTP 31

B1: Ubamaka, per Ribiero PJ 114. In my judgment, the clear words of s 5 establish the non-derogable character of the right not to be subjected to torture or CIDTP protected by BOR art 3. It is also clear from the highly persuasive jurisprudence of the Strasbourg Court and the House of Lords in relation to the closely analogous provisions of the ECHR that BOR art 3 rights are not only nonderogable but also absolute. Such jurisprudence shows that the absolute character of the protection against torture and CIDTP is an internationally accepted standard or as Lord Steyn puts it a universal minimum standard. 32

B1: Ubamaka, per Ribiero PJ 115. Accordingly, any apparent conflict between s 5 and s 11 or any ambiguity as to the statutory purposes of those provisions should be resolved by giving precedence to s 5, according decisive weight to the nonderogable and absolute character of the rights protected by BOR art 3. Therefore, construed purposively, s 11 must be read as qualified by s 5. Section 11 must be understood to exclude the application of HKBORO and BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BOR art 3 are engaged. 160. [The consequence is] therefore that a sufficiently established threat of BOR art 3 being violated by the receiving country if the deportee should be sent there constitutes a ground for restraining the Hong Kong Government from proceeding with the deportation. 33

B1: Questions for Further Consideration Questions left open in our last seminar in 2014: What if a claimant claims that he will be executed by his Government if deported? Can he invoke his right to life under Art 2 of the HKBOR? Questions which are still unanswered: What other applicable grounds can a claimant invoke? 34

B2. Modified/Clarified USM: All Applicable Grounds ImmD issued a notice in September 2016 clarifying the meaning of all applicable grounds under USM, the Department would assess whether a claimant, if removed from Hong Kong, would face a personal and substantial risk of his absolute and nonderogable rights under the HKBOR being violated at another country (e.g. right to life under Article 2 and torture or CIDTP under Article 3 of the HKBOR) 35

B2. Modified/Clarified USM: All Applicable Grounds Effectively modified or extended USM to include Article 2 grounds The Notice to Persons Making a Non-refoulement Claim, Non-refoulement Claim Form, Supplementary Claim Form and Processing Nonrefoulement Claims under the USM were revised accordingly Transitional arrangement provided for claimants 36

C. Right to Life C1. Sources C2. Non-derogable and absolute right? C3. Content of the Right to Life C4. Applicable test in deportation/removal cases 37

C1: Sources The Basic Law of the HKSAR Article 28 arbitrary or unlawful deprivation of the life of any resident shall be prohibited. Article 41 Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter. 38

C1: Sources: BORO Art 2: Right to life (1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. (2) Sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of this Bill of Rights and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. (3) When deprivation of life constitutes the crime of genocide, nothing in this article shall authorize the derogation in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 39

C1: Sources: BORO Art 2: Right to life (4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. (5) Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women. (6) Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment in Hong Kong. 40

C1: Sources European Convention on Human Rights Article 2 Right to life 1. Everyone s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. 41

C1: Sources UDHR Article 3 Everyone has the right to life, liberty and security of person. ICCPR Article 6 (materially the same as Art 2 of BORO) The Convention on the Rights of the Child Article 6 1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. The Convention on the Rights of Persons with Disabilities Article 10 States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. 42

C1: Sources American Convention on Human Rights Article 4. Right to Life 1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 3. The death penalty shall not be reestablished in states that have abolished it. 4. In no case shall capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. 43

C2: Non-derogable and Absolute Right? C2.1: Fundamental and non-derogable Human Rights Committee General Comment No 14 (23rd Session, 1984): The right to life enunciated in the first paragraph of article 6 of the International Covenant on Civil and Political Rights is the supreme right from which no derogation is permitted even in time of public emergency... It is basic to all human rights. 44

C2: Non-derogable and Absolute Right? ICCPR Article 4 No derogation from articles 6 [right to life] may be made under this provision [public emergency]. 45

C2: Non-derogable and Absolute Right? ECHR Article 15 Derogation in time of emergency No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war shall be made under this provision. 46

C2: Non-derogable and Absolute Right? McCann and Ors v UK (1996) 21 EHRR 97, 147 at p.160: It must also be borne in mind that, as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe... As such, its provisions must be strictly construed. 47

C2: Non-derogable and Absolute Right? C2.2 Is the right to life absolute? Is the right to life absolute? In Parrillo v Italy (2016) 62 EHRR 8, OII-9 at p.362, Judge Dedov in his concurring opinion remarked: The right to life is absolute, and this fundamental tenet makes it unnecessary to explain why a murderer, a disabled person, an abandoned child or an embryo should be kept alive. 48

C2: Non-derogable and Absolute Right? What about Death Penalty? Death penalty is expressly allowed under BOR Art 2(2) and is an exception to the right to lift Sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of this Bill of Rights and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. Need strict procedural safeguards 49

C2: Non-derogable and Absolute Right? ECHR contains other express exceptions: a) in defence of any person from unlawful violence; b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c) in action lawfully taken for the purpose of quelling a riot or insurrection. Only where use of force is no more than absolutely necessary 50

C2: Non-derogable and Absolute Right? But in NHS Trust A v M [2001] Fam 348 at 359D: article 2 also contains a positive obligation, to take adequate and appropriate steps to safeguard life... positive obligation upon a state to protect life is not absolute. 51

C2: Non-derogable and Absolute Right? To reconcile: The right to life may not be absolute; But the right not to be subjected to arbitrary deprivation of life is absolute 52

C3: Content of the Right to Life C3.1. When does the right to life begin? 53

C3: Content of the Right to Life C3.1 Vo v France (2005) 40 E.H.R.R. 12 at 82, 85 on p. 294: 82 the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a living instrument which must be interpreted in the light of present-day conditions. The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life. 85 the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention. 54

C3: Content of the Right to Life C3.1 American Convention on Human Rights, Article 4(1): Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 55

C3: Content of the Right to Life C3.1 Article 40.3.3 of the Constitution of Ireland: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. 56

C3: Content of the Right to Life C3.1 Position in the UK is different In Evans v Amicus Health Care Limited and Others [2005] Fam 1 Wall J reviewed all the authorities and said at 175: there is abundant domestic authority, binding on me, that a foetus, at whatever stage of its development, has no existence independent of its mother. If a foetus has no right to life under article 2, it is difficult to see how an embryo can have such a right. Similarly, the right to life from conception is not protected by the common law of Northern Ireland: Re Northern Ireland Human Rights Commission's Application for Judicial Review [2016] 2 F.C.R. 418 at 1. 57

C3: Content of the Right to Life C3.2 Three Aspects of the Right to Life 1. Negative obligation - prohibition of deprivation of life, subject to strict exceptions 2. Positive obligation - obligation to protect right to life by law 3. Procedural obligations 58

C3: Content of the Right to Life R (Middleton) v West Somerset Coroner [2004] 2 AC 182, 2-3 at p.191 2 The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life... 3 The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated 59

C3: Content of the Right to Life Sony Rai and Coroner [2011] 2 HKLRD 245, 20 at p.252 Given their similarity in wording and thrust to art.2 of the ECHR, the House of Lords observations and reasoning in R (Middleton) v West Somerset Coroner must apply equally to art.28 of the Basic Law, art.2(1) of the Hong Kong Bill of Rights and art.6 of the ICCPR. Those latter provisions must impose identical substantive and procedural obligations on the Hong Kong Government. 60

C3: Content of the Right to Life C3.2.1 Negative Obligation Prohibit use of lethal force by state Limited exceptions assessed by necessity and proportionality principles Practice that constitute a breach of Article 2: forced disappearance, extra-judicial killings 61

C3: Content of the Right to Life Necessity principle Article 2 allows for exceptions to the right to life only when it is absolutely necessary, a term indicating that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is necessary in a democratic society : McCann v UK, 149 at p.160 62

C3: Content of the Right to Life Putintseva v Russiau [2012] ECHR 820 Death of a young man during mandatory military service after being shot by a superior when trying to escape Violation found: the legal framework on the use of force to prevent the escape of a soldier had been deficient and the authorities had failed to minimise recourse to lethal force ( 72 at p.27) 63

C3: Content of the Right to Life Proportionality principle Wasilewska and Kalucka v Poland (ECtHR 28975/04 and 33406/04, 23 Feb 2010) Death of suspect during anti-terrorist operation Violation of Article 2 since Polish government failed to submit any comments regarding the proportionality of the level of force used by the police, organisation of the police action and whether an adequate legislative and administrative framework had been put in place to safeguard people against arbitrariness and abuse of force ( 57 at p.13) 64

C3: Content of the Right to Life C3.2.2 Positive obligation State should take appropriate steps to safeguard the lives of those within their jurisdiction, in particular by putting in place effective criminal-law provisions backed up by lawenforcement machinery: Osman v UK (2000) 29 EHRR 245, 115 at p.305 65

C3: Content of the Right to Life However, see Osman at 116 (p.305): such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk 66

C3: Content of the Right to Life C3.2.3 Procedural obligation Obligation to investigate deaths that may have occurred in violation of article 2: McCann at 161 a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State s general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention", requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State. 67

C4: Applicable Test in Deportation Case C4.1 A person may not be extradited or expelled to a country if there are substantial grounds for believing that he or she would face a real risk of being subjected to treatment contrary to Article 2 68

C4: Applicable Test in Deportation/Removal Cases Human Rights Committee of the United Nations, interpreting the International Covenant on Civil and Political Rights in ARJ v Australia (Communication No 692/1996, 11 August 1997): 6.8. What is at issue in this case is whether by deporting Mr J to Iran, Australia exposes him to a real risk (that is, a necessary and foreseeable consequence) of a violation of his rights under the Covenant. States parties to the Covenant must ensure that they carry out all their other legal commitments, whether under domestic law or under agreements with other states, in a manner consistent with the Covenant. Relevant for the consideration of this issue is the state party s obligation, under article 2, paragraph 1, of the Covenant, to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. The right to life is the most fundamental of these rights. 69

C4: Applicable Test in Deportation Case Regina (Ullah) v Special Adjudicator [2004] 2 AC 323, 24 at p.352: While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, para 91; Cruz Varas, para 69; Vilvarajah, para 103. In Dehwari, para 61 (see para 15 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a "near-certainty The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes It seems that the HK Government does not apply this more stringent test 70

C4: Applicable Test in Deportation Case C4.2 Issues in Art 2 and Art 3 often overlap Court tends to subsume assessment of issues under Arts 2 into Art 3 71

C4: Applicable Test in Deportation Case D v UK (1997) 24 EHRR 423 Young man from St Kitts diagnosed with AIDS Could not receive appropriate treatment nor support if deported his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment ( 53 at p.449) Claims under Articles 2 and 3 were indissociable and it was therefore not necessary to examine D s complaint under Article 2 ( 59 at p.450) 72

C4: Applicable Test in Deportation Case Said v the Netherlands (2006) 43 EHRR 14 248 Applicants invoked both Articles 2 and 3 it was more appropriate to deal globally with the complaint under Article 2 when examining the related complaint under Article 3 Once it found that expulsion would contravene the latter article, no separate issue arose under the former ( 56 at p. 259) 73

D: Other Applicable Absolute and Non-derogable Rights ImmD recognized as absolute and non-derogable BOR 2 and BOR 3 BORO s 5 refers as non-derogable also BOR 4(1) and (2), 7, 12, 13 and 15 What is an absolute right? Absolute vs Qualified (right that can be restricted by law that meets proportionality test for legitimate aim). 74

D: Other Applicable Absolute and Non-derogable Rights BOR 4(1) and (2): Slavery and servitude BOR 12: Non-retrospective criminal law BOR 13: Non-recognition before the law BOR 15: Religion (multi-faceted right or a collection of rights), possible that refers to say forcible conversion upon return. 75

D: Other Applicable Absolute and Non-derogable Rights Other possibly non-derogable and absolute rights: BOR 10 and 11 (Fair Trial) BOR 5(1) (Arbitrary deprivation of liberty) BOR 22 (Non-discrimination/ equality before the law) Non-derogability under BORO s 5 also refers to: inconsistent with any obligation under international law that applies to Hong Kong This qualifies BOR 22 or the principle of non-discrimination. For example, racial discrimination recognized as such a standalone international law obligation in European Roma Rights Centre v Prague Airport Immigration Officer [2005] 2 AC 1, HL. 76

D: Other Applicable Absolute and Non-derogable Rights Fair Trial as absolute and non-derogable right? Othman (Abu Qatada) v UK (2012) 55 EHRR 1 (ECtHR) 258. It is established in the Court s case-law that an issue might exceptionally be raised under Article 6 [right to a fair trial] by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. [ ] 259. In the Court s case-law, the term flagrant denial of justice has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein [ ] Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. 77

D: Other Applicable Absolute and Non-derogable Rights NB: Fair Trial also many faceted, some facets may be restricted: HKSAR v Richard Ethan Latker [2009] 2 HKC 100 per Hon Ma CJHC (as he then was) at 33: 33. Although the right to a fair trial contained in Article 10 does not provide expressly for exceptions and is absolute, it is nevertheless clear as a matter of principle that certain facets of this right (such as the right to silence) are not absolute and are capable of derogation or qualification. 78

D: Other Applicable Absolute and Non-derogable Rights Othman at 261: same standard as for torture and cruel treatment (etc.) case: [I]t is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it 79

D: Other Applicable Absolute and Non-derogable Rights UN Human Rights Committee, General Comment No 32 (CCPR/C/GC/32, 23 August 2007) 19: The requirement in ICCPR Art 14(1) (equivalent to BOR 10) of competence, independence and impartiality of a tribunal is an absolute right that is not subject to any exception. 80

Thank you for your attention. Q&A 81