Quick answer
No, not under the European Convention on Human Rights (ECHR). In Chahal v. the United Kingdom (1996), the European Court of Human Rights held that Article 3, which prohibits torture and inhuman or degrading treatment, is absolute in expulsion cases too. If there are substantial grounds for believing that a person faces a real risk of such treatment in the receiving country, the State must not deport him, however dangerous it believes he is. National security cannot be balanced against the risk of torture.
The law
Article 3 ECHR says that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Under Article 15(2), no derogation from Article 3 is allowed, even in a war or public emergency. The Court reads Article 3 to include a duty of non-refoulement (not sending a person back to a place where he faces serious harm).
Chahal v. the United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 22414/93, judgment of 15 November 1996. Karamjit Singh Chahal, an Indian citizen and Sikh activist living in the UK, was ordered to be deported to India on national security grounds. The Court held, by 12 votes to 7, that deporting him to India would violate Article 3. The protection is "equally absolute in expulsion cases", and the person's activities, "however undesirable or dangerous", cannot be a material consideration. The Court found it substantiated that he faced a real risk of prohibited treatment if returned to India. It noted that the Punjab police were involved in killings and abductions outside their own State, and it was not persuaded that the Indian Government's assurances gave him an adequate guarantee of safety. It also found violations of Article 5(4), on review of his detention, and of Article 13 read with Article 3, on the lack of an effective remedy.
Essential points
- Test: substantial grounds for believing that there is a real risk of treatment contrary to Article 3 in the receiving country.
- No balancing: the risk of ill-treatment cannot be weighed against the reasons for expulsion, including national security.
- Who the person is does not matter: conduct, even suspected terrorism, does not remove the protection.
- Reaffirmed: in Saadi v. Italy (Grand Chamber, 28 February 2008), the Court unanimously refused to change the Chahal rule. It held that "risk" and "dangerousness" cannot be balanced against each other and that no higher standard of proof applies in national security cases.
ECHR Article 3 compared with the Refugee Convention
| Point | Article 3 ECHR (Chahal) | Articles 32 and 33, 1951 Refugee Convention |
|---|---|---|
| Who is protected | Anyone facing a real risk of torture or inhuman or degrading treatment | Refugees (a well-founded fear of persecution on specified grounds) |
| Exception for national security | None: protection is absolute, and Article 15(2) bars derogation | Yes: under Article 33(2), a refugee reasonably regarded as a danger to the security of the country cannot claim protection against return |
| Result | Wider protection, as Chahal (para 80) expressly says | Narrower protection |
Example
Zoya is a foreign national living in a State bound by the ECHR. The government wants to deport her because it believes her political activities threaten national security. If there are substantial grounds to believe that she faces a real risk of torture in her home country, the State cannot deport her there. It may use other lawful measures, but it cannot send her into that risk.
Note for Indian students
The ECHR, and the Chahal rule, bind only States party to the ECHR. Chahal is studied in India because it is a leading statement of absolute non-refoulement, and because the risk it assessed concerned return to India. A similar rule appears in Article 3(1) of the UN Convention against Torture (1984): no State Party shall expel, return 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. India signed that Convention on 14 October 1997 but has not ratified it, so it is not a party. For refugees and displaced persons generally, see Nationality, Immigrants, Refugees and IDPs.
Exam point
Chahal v. UK (1996): Article 3 ECHR is absolute even in deportation cases. A real risk of torture bars removal, and national security cannot be weighed against it.
