The decisions of the #European Court of Human rights, are not binding on the United Kingdom. The Convention of Human Rights and Fundamental Freedoms 1950 created the #Court of Human Rights in Strasbourg. Where there has in the past been disputes as to clarity of law, and when national courts in the UK have not provided an answer, recourse by convention has been had to the Strasbourg jurisprudence, the body of law developed by the Court of Human Rights, via it’s opinions,declarations, and decisions.
As the Brian Levison said with respect to #article 3 of the European Convention of Human Rights, referring to the Court of Human Rights, it only necessary to take “its decisions into account”. Furthermore the Lord Chief Justice Lord Judge, in 2011 was of the view that courts and tribunal’s must” take account of any judgement, decision, declaration or advisory opinion, give weight and in most cases follow them. But not necessarily.” Of course when our #Supreme #Court may refers a decision to the Human rights Court by granting a right of appeal for example to the losing party before it, such right of appeal is given with the intention of the domestic courts being bound by the decision of the European Court.
An example is the case of #N ( FC)# v #SSHD #2005# UK# HL #31. This case developed a high threshold for medical articles 3 cases ( inhuman and degrading treatment cases), where an individual seriously ill had requested to remain in this country to continue with treatment, as the lady in N who had full blown aids. The court held that only if the appellant is close to death, then they should be allowed to die in dignity in the UK. On appeal to the Court of Human Rights, the decision of the House of Lords was held. It is therefore made binding law throughout continental Europe and beyond.
However when it comes to considering decisions of the #Human #Rights #Court with respect to any other state that has referred matters to it, the UK courts and tribunals need only regard the court’s decisions as advisory. In the matter of Paposhvili v Belgium 15th December 2016, a case where the appellant a Georgian national was seriously ill with leukemia, and submitted if returned to Georgia, he would die as treatment he was receiving in Belgium would be unavailable to him in Georgia , the #Human Rights #Court, lowered ever so slightly the standard of the death bed test in N and said ” where a person’s removal would result in rapid and irreversible decline resulting in intense suffering or a significant reduction in life” the applicant should be allowed to stay.
There was also a human rights element to this case under article 8 of the ECHR based on his #family and #private #life, which the court said like the article 3 claim had not been properly investigated by the Belgium authorities. So the appellant won his case under both articles.
However in the case of #St #Lucua v #SSHD #2018 #civ #894, where the appellant was so mentally deranged that she was not able to give evidence to the tribunal, the argument that #Paposhvili had made it easier to apply article 8 if an article 3 claim was not successful, was an argument that was rejected by the Court of Appeal who did not consider that #Paposhvili had any effect on #article 8. Despite the judgement of the Strasbourg court, it remained a fact the Court of Appeal said that the threshold under article# 3 was very high and article # 8 was in our jurisdiction under a very different regime and was subject to balancing the interest of the individual as against the interest of the State, and was thus a qualified right unlike article 3.
The UK is of course bound by the decisions of the #European Court of Justice (CJEC), unlike the decisions of the Court of Human Rights, because the European Communites Act 1972 which was the Act that formerly subjected the UK to the binding effect of the #European institutions , one of which is the #CJEC) ensured that where there is a conflict between UK and European law , European law should prevail. However after Brext i believe we shall no longer be bound by the decisions of the #CJEC.
Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.
