Human Rights Act 1998

To approach my client's case, a brief summarisation of the essential facts is required. Mr Apoe, who had been on a tourist visa for some time, last year had his application to remain in the UK as a resident turned down. He was expressly told by the authorities that a 'genetic fingerprint' yielded from a compulsory blood test was needed for the purposes of an identity card should his application be successful. It is possible that the results of his 'genetic fingerprint' contributed towards the subsequent refusal of his application.In assessing the legality of this decision, it is clear that the issues of consent, data protection, and human rights are vital. This paper intends to examine each of these issues, garnering relevant statutes and common law judgments, then gauging their effect on the case in hand.

This is important as merely offering a theoretical analysis of the three issues would not yield any tangible benefit for the client. Consequently, possible avenues of appeal against the decision will be raised, as will potential remedies. As a result concrete advice can be given to the client.It will be submitted, however, that the three issues are not mutually exclusive, instead tangling together in a complicated manner.

The thread of consent, though appearing in its own right in certain precedents, weaves right through data protection and human rights. Indeed, in using the decisive Immigration and Asylum acts 1999 and 2002, consent, or rather lack of it in Mr Apoe's case, can form the basis of a section 65 claim against the decision. The inter-related nature of the issues is highlighted by the fact that human rights also have a decisive role to play in this claim.Although it will be argued this is perhaps the most effective claim at the client's disposal, one divorced from the afore-mentioned act and premised solely on the Human Rights Act 1998 breach can also be raised.

Yet this does not exhaust the options open to Mr Apoe as he can also claim using just the Data Protection Act 1998. Interestingly, consent would also provide the foundation of this claim. To give most effective advice to the client, the relative merits of these claims, including remedies on offer, should be extrapolated.It will be contended that notwithstanding the data protection route's possible award of damages, the most significant award would be likely to be through the Immigration and Asylum act.

Though impossible to predict the exact size, case law provides a useful indicator of how much and what form this could be. The best case-scenario outcome involves a successful claim using section 65 and article 3 of the Human rights act. This could yield a considerable award of damages coupled with the decision being re-assessed through the appeals process, and a judicial review being brought.The less likely, yet still feasible, worst case-scenario, involves the Secretary of State using his considerable discretion, afforded by the relevant legislation, to reject the client's appeal outright. Rights based on a compulsory blood test Upon examining English case-law involving consent and the use of blood samples, it is clear that the rights of the public authorities who require the sample are limited by reference to statute.

In R V Nathaniel1, the question of whether the suspect of a criminal case was compelled to give an intimate sample, including blood, hinged upon powers conferred to the authorities by an Act of Parliament.Similarly, it can be seen that the power of the Secretary of State to require a compulsory blood test in Mr Apoe's case must be viewed in the light of the Immigration rules. 2 These are the only piece of legislation referring to any kind of medical tests as part of the application process. Part 1 Section 36 states that any person who 'intends to remain in the UK for more than six months should normally be referred to the medical inspector. '3 Additionally, the medical inspector 'should take account of..

......

a specified illness....

.. n deciding whether to admit that person. 'This would appear to grant the right of the Secretary of State to allow Mr Apoe to undergo a medical test. However, it is the particularly intrusive nature of the test which is in question. In X v Austria,4 it was held that 'individuals have the right not to be subjected to compulsory physical interventions and treatments, such as blood tests.

' This could give Mr Apoe a ground for appeal as simply by requiring him to give a blood sample without choice. An Article 3 and 14 claim under the Human Rights ActThis alone may be submitted as part of an Article 3 claim under the Human Rights Act 1998. Article 3 states that : 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment. '5 Crucially, this is an absolute right, without any qualification. Therefore, if the Mr Apoe's 'treatment' was proved to be 'inhuman' or 'degrading', the Secretary of State could not defend himself on 'proportionality' grounds.

Or in other words, they could not claim that it was necessary given the circumstances.Pretty V UK 6shows that 'intense mental suffering' could substantiate a claim, as could that which 'humiliates or debases. '7 There is a chance that the courts might regard the compulsory submission of a blood test as meeting these standards. However, the claim would be be firmer if it could be proved that the blood samples were actually used in determining his appeal. Newspaper articles do indicate the government has been using this strategy, but it is still unconfirmed whether this was so in Mr Apoe's case.

The difficulty lies in compelling the government to state why exactly his application was unsuccessful. There is nothing in the Asylum and Immigration bills or Immigration rules which forces the Secretary of State to state, or allow the applicant to see, the reasons for refusal. This could prove problematic in proving the Secretary of State based his decision in any way on Mr Apoe's sample. However, when looking at relevant case law, it becomes apparent that it is difficult to meet the 'high threshold'8 required for proving an article 3 claim.Usually this involves 'strong proof of persecution. '9 R (on the application of N) V Secretary of State for the Home Department10 Illustrates this well.

An asylum seeker failed in his article 3 claim despite a clear causal link between Home office 'treatment' and a subsequent slide to the point of suicide. ' On the other hand, in Keenan V UK,11 it was enough to show that the authorities had caused 'significant stress....

. and feelings of anxiety. ' R (On the application of Q and other) V Secretary of State12 suggests 'cogent medical evidence must be produced' of this.Without this a successful claim under article 3 could prove tricky. Yet the attractions of such a claim are obvious. As article 3 is deemed one of the 'most fundamental provisions' of the ECHR, it could bear most generous damages for Mr Apoe.

Case law shows unlike most of the other ECHR articles, infringement of Article 3 can award compensation for non-pecuniary damage. 13 In Mr Apoe's case this could be based on psychological damage, in the form of his 'anxiety' or 'humiliation' at his blood sample being forcibly taken and/or screened for deleterious genes.To sure up his claim, article 14 could be tacked on to that of 3. It states that : The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. As it is not a freestanding right, it would have to be used in conjunction with 3 at least. Discrimination against Mr Apoe's health could be placed under 'other status', which, as the case law suggests, is given a 'broad meaning.

It has been extended to areas like sexual orientation15 and the illegitimate status of a person16. Therefore it is likely that highly personal genetic data will too. The significance of the Human Rights Act The centrality of the HRA 98 to Mr Apoe's claim is apparent in section 6(1). This makes it 'unlawful for a public authority to act in a way which is incompatible with a convention right. '17 As a 'public authority.

....

. does not include a person exercising functions in connection with proceedings in Parliament'18, in theory the Secretary of State can act outside of the HRA.However, 'public authority' does include the courts, which are obliged to interpret all legislation 'so far as it is possible to do so..

.. in a way which is compatible with the convention rights. ' The implication of this is significant if the Secretary of State has acted unlawfully. Unless the courts are willing to 'make a declaration of incompatibility' between the legislation and the convention rights, then the Secretary of State must address the decision. As declarations of incompatibility are used only as a 'last resort'19 Only if the he can prove he 'could not have acted differently', can the act be shown to be not 'unlawful.

This is only for primary legislation, though, and so if he has acted under delegated legislation, it must be compatible with the ECHR rights whatever the circumstances. The authority on which the Secretary of State decides immigration cases like Mr Apoe's appears to be entirely derived from the immigration rules, 'in general not primary legislation. '21 Therefore it should be difficult for the Secretary of State to ignore the decision if proved not to be 'in accordance with the law' under the HRA. A Section 65 appeal and the Human Rights ActSection 65 (1) of the Immigration and Asylum Act 1999 allows an independent right of appeal on human rights grounds. Importantly, for Mr Apoe, this means that if a section 65 claim is raised, it must be viewed by the adjudicator in accordance with the Human Rights Act. Schedule 4.

paragraph 21 of the IAA 1999 would allow Mr Apoe's appeal if the Secretary of State's 'decision against which appeal is brought was not in accordance with the law. ' Saad, Dirige and Osario V Secretary of State22 shows that an appeal against Mr Apoe's decision could alternatively be raised on the basis of the Nationality, Immigration and Asylum act 2002.Either way, the appeal must be in accordance with ECHR rights. Even if the adjudicator handling Mr Apoe's appeal turns it down, there is the right to appeal against the adjudicator's determination on a point of law. 24 In addition, also on a point of law, a judicial review might be raised if shown the Secretary of State acted incompatibly with ECHR rights. This is enshrined in Section 6 of the HRA 98.

damages Using Article 8 In addition to using Article 3, article 8 could also form part of a persuasive appeal case.Article 8 states that: Everyone has the right to respect for his private and family life, his home and his correspondence. ' Returning to R (on the application of N) V Secretary of State for the Home Department, there an article 8 claim was successfully upheld as the home office treatment had 'damaged C's metal stability and denied his dignity as a human being. ' It is already a given that Mr Apoe did not give his consent to the Home Office to use his blood sample to search for deleterious genes. If it can be shown that Mr Apoe's blood test was used to this end, then he has a good chance of success.Though the national courts have been reluctant to find a free-standing privacy right under article 8, in Strasbourg, they 'continue to flourish.

'25 In any case, Mr Apoe's claim under article 8 would not need to be free-standing and could be tacked onto an s. 65 claim as well as article 3. Craxi V Italy26 indicates good reason for optimism as the Italian government failed to fulfil their obligation under Article 8 by preventing unauthorised access to confidential files. The difference in detail between this and the client's case is slight; In Mr Apoe's circumstances, only the 'use' rather than 'access' was 'unauthorised.Nevertheless, article 8 is not an absolute right under the Human Rights and has the following conditions : 'except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. '27 As shown in Z V Finland,28 courts use the proportionality test in determining whether the Secretary of State's actions are 'necessary' in an Article 8 case.

This usually involves looking at whether the 'reasons advanced to justify them were relevant and sufficient,' and whether the measures were 'proportionate to the legitimate aims pursued. ' Z V Finland is highly encouraging for the patient. In that case the results of a woman's blood test were handed to the authorities without her consent. Despite the blood test being used expressly for the 'prevention of crime and the protection of others,'29 the woman's claim was still successful. Furthermore she received non-pecuniary damages.It was also held in that case that even if a domestic remedy is not available, the community law must provide one.

In any case, section 8 (2) of the HRA, introduced after Z V Finland is even more precise. It states that courts have the power to award statutory compensation for any HRA violation 'if necessary to afford just satisfaction. ' Z V Finland suggests this violation will be looked upon as grave in Mr Apoe's case and suitable damages awarded. Hopefully this would take place during a judicial review, brought under the Civil Procedure Rules Practice Direction 54.

One possible remedy for Mr Apoe which could flow from this is a 'quashing order' under section 54. 1(d). 30 This would reverse the Secretary of State's decision to refuse Mr Apoe citizenship and allow a fresh one to be made. The Data Protection Act. It is difficult to envisage any claim under article 8 not being coupled with rights afforded by the Data Protection Act 1998. The first principle of the Act states that the 'data subject's' personal data is to be processed 'fairly and lawfully.

' Mr Apoe can be regarded as a data subject, and the Secretary of State as data controller.The 'purpose for which the data subject's personal data is/are intended to be processed' must be made 'readily available...

so far as is possible... when the data is first processed.

'31 If it can be proved Mr Apoe's genetic data was used for screening his genes, then chances of success are high as this is different to the purpose stated by the home office when requesting his sample. Additionally, in section 2, a 'genetic fingerprint' is almost certainly 'sensitive personal data' as it relates to his 'physical or mental health or condition. 32 This means that Mr Apoe must have given his 'explicit consent' to the processing. Clearly, this was not given. The only potential pitfall could be that the Secretary of State 'may by order specify particular circumstances in which this condition (of explicit consent) is, or is not, to be taken to be satisfied.

'33 This does give the Secretary a wide discretion, yet it appears to be only prospective, rather than retrospective. To specify those conditions ex post facto would probably not be attempted.Similarly, the secretary of state also 'may make rules for regulating the exercise of the rights of appeal', yet again to do this retrospectively is improbable as would lose the secretary of state credibility. The data protection act could be used to solve the problem, already discussed, of how to compel the Secretary of State to reveal the actual purpose of Mr Apoe's data. Part 2, S7(b) stipulates that Mr Apoe has the right to be informed by the Secretary of State 'whether personal data of which that individual is the data subject are being processed by on behalf on that data controller. Furthermore, Mr Apoe has a right to find out the 'purposes for which they are being processed.

' Before submitting any other claim, this route must be pursued first to give the client the best chance of success. Only then can the claim be raised alleging breach of consent. A breach of the Data Protection Act in itself could entitle Mr Apoe to compensation. Section 13 clearly makes this entitlement if Mr Apoe 'suffers damage by reason of any contravention by a data controller of any of the requirements' of the act.

It is hoped that by notifying the data protection commissioner under section 6, this will be awarded. Summarizing Mr Apoe's options Mr Apoe has a number of different options open, all of which could well yield a positive result. However, these cannot all be followed simultaneously. Firstly, under the Data Protection Act, an application must be made to the Secretary of State requesting information about the purpose of using his data. In all likelihood this will give Mr Apoe the skeleton for a fairly solid case. Then applications for judicial review can made alongside S.

5 appeal and a complaint to the Data Protection Commissioner. The Data Protection Act, Immigration and Asylum Act, and the Human Rights Act will challenge the seemingly unlawful fashion in which Mr Apoe's application was handled. The outlook is good. Even if an Article 3 claim is unsuccessful, an Article 8 one with Article 14 tacked onto it will probably succeed. This will hopefully incur the most desirable remedy - quashing the Secretary of State's decision and bringing about a fresh one not prejudiced by his 'DNA fingerprint.

' Damages on top of this are also a real possibility.