East African Asians v The United Kingdom

Parties (including notable third parties)

East African Asians (The Applicant); The United Kingdom (The Respondent)

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Summary of Facts

This case concerned a group of East African Asians, who were either Citizens of the United Kingdom and Colonies (‘CUKC’) or British protected persons, holding passports from the United Kingdom (‘UK’) and resident in either Kenya or Uganda.

The Applicants were not citizens of Kenya or Uganda. Following their independence, Kenya and Uganda conferred citizenship only to those born on the territory and to at least one parent who was a national. For those not meeting these criteria, the countries offered a limited window for naturalisation and generally required renunciation of any other citizenship. many Asians living in the countries did not register for naturalisation. The subsequent introduction of ‘Africanisation’ policies further restricted work and trade rights in East Africa, triggering an increase in East African Asian migration towards the UK. in 1970, the Applicants sought to settle in the UK.

The Commonwealth Immigrants Act 1968 imposed immigration controls on British subjects and British protected persons. Under this Act, the Applicants were either not granted entry to the UK or were refused permission to remain their indefinitely. 24 of the 31 applicants were detained in the UK.

The claims to the European Commission of Human Rights (‘Commission’) principally proceeded on the basis of whether the refusal to admit or allow permanent stay of CUKCs of Asian origin amounted to unlawful discrimination and degrading treatment under article 3 of the European Convention on Human rights (‘Convention’), with three applicants also alleging a violation of articles 8 and 14 concerning family reunion.

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Legal Arguments

Legal Arguments by the Applicant

On Article 3 – degrading treatment

25 Applicants who were CUKCs submitted that the British authorities’ refusal to admit them to the UK or allow them to permanently stay constituted ‘degrading treatment’ under Article 3 of the Convention as it reduced them to the status of second-class citizens on the basis of colour or race. In response, the Government submitted that such refusal did not constitute a violation of Article 3 as there was no guarantee of the right to enter one’s own country by the Convention or the First Protocol to the Convention. The Government further submitted that the impugned legislation did not discriminate against the Applicants on the ground of colour or race, and in any event, did not constitute ‘degrading treatment’.  The Government suggested that the term ‘degrading treatment’ must be interpreted as referring to physical acts only.

On Article 5 – security of person

The Applicants also submitted that the exclusion violated the ‘security of person’ guaranteed under Article 5, which is concerned with protecting an individual’s personal existence from arbitrary interference by a public authority ([218]). The Government submitted that Article 5 is to be understood in the context of ‘liberty of the person’ and does not cover arbitrary action, and furthermore that UK authorities did not act arbitrarily. The applicants contended that the non-discriminatory protection under Article 14 was violated in conjunction with Article 5 ([225]).  It was accepted by both parties, that Article 14 does not have an autonomous role and that there may be a violation of Article 14 in conjunction with another article of the Convention.

On Article 8 – family life

Three Applicants further contended that the UK authorities interfered with their family life by preventing them from entering Britian after admitting their respective wives to permanent residence, violating Articles 8 and 14. The Government submitted that the separation of husband and wife occurred voluntarily and that Article 8 guarantees a right for a family to reside together in a place where the husband lawfully is and not the wife.

Outcome

The Commission considered that the six applications brought by British protected persons must be distinguished from the 25 cases of CUKCs as British protected persons, according to English law, are not British subjects and remained subject to immigration control under the 1962 Act.

The Commission held that the legislation was not discriminatory and did not constitute ‘degrading treatment’ under Article 3 in relation to British protected persons as the 1968 Act did not change their position as regards to entry, and that the immigration legislation did not distinguish between different British protected persons on any ground of race or colour.

In relation to CUKCs however, the Commission rejected the Government’s submission that ‘degrading treatment’ must be physical acts only and instead held that the immigration legislation constituted was discriminatory and constituted ‘degrading treatment’ under Article 3. The Commission found that an action which lowers a person in rank, position, reputation or character can be regarded as ‘degrading treatment’ under Article 3 where it reaches a level of severity. The Commission confirmed that while the Convention does not itself guarantee a right of entry, refusal of entry can, in special circumstances, violate other Convention rights. Evidenced by statements made in Houses of Parliament during debates, the Commission found that the 1968 Act had racial motives, targeted a racial group, and operated alongside nationality and immigration measures that advantaged those with ancestral UK ties. In the Applicants’ circumstances this discrimination amounted to ‘degrading treatment’ contrary to Article 3 as singling out a group of persons for differential treatment on the basis of race could constitute a special form of affront to human dignity.

In relation to Article 5, the Commission held that ‘liberty and security of person’ must be read as a whole, finding that the protection of ‘security’ from arbitrary interference by a public authority is in relation to an individual’s personal ‘liberty’. Accordingly, Article 5 requires the safeguard of the ‘security of person’ by conforming to procedural and substantive requirements laid down in law. In light of this interpretation, the Commission did not find a violation of Article 5. The Commission also did not find a violation of Article 14, which, accepted by both parties, does not have an autonomous role and violation may be found in conjunction with another article of the Convention, requiring the exercise of a right to be restricted and for the restriction to be not discriminatory. Given the rights protected under articles 3 and 5 are guaranteed in absolute terms, the Commission did not consider there could be a violation of article 14.

As to family life, the UK’s policy of admitting wives to join husbands but not husbands to join wives constituted sex discrimination against male immigrants, violating Article 14 read with Article 8.

The case notes that the findings were not all unanimous and that Members Fawcett and Welter delivered separate opinions, however they have not been reproduced online.

Note, following the Commission’s report, the UK Government granted the Applicants the right of abode in the UK.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Vienna Convention on the Law of Treaties 1969	Arts 31-33
Regional	European Convention on Human Rights	Arts 3, 5, 8, 14, 25
Regional	Protocol No. 4 to the European Convention on Human Rights	Article 3(2)
Regional	Protocol No. 1 to the European Convention on Human Rights
Domestic	British Nationality and Status of Aliens Act 1914
Domestic	British Nationality Act 1948	Part I, section 1; Part II, section 4
Domestic	Commonwealth Immigrants Act 1962	Sections 1-2; First Schedule
Domestic	British Nationality Act 1964	Section 1
Domestic	Commonwealth Immigrants Act 1968	Section 1
Domestic	Immigration Appeals Act 1969
Domestic	Immigration Act 1971	Sections 1, 2, 34(1), Schedule 6
Domestic	Immigration Rules for Control on Entry (25 January 1973)	Rule 27
Domestic	Aliens Restriction Act 1914
Domestic	Uganda Independence Act 1962	Section 2
Domestic	Kenya Independence Act 1963	Sections 2-3
Domestic	Constitution of Uganda	Arts 7(1), 8, 12(1)
Domestic	Constitution of Kenya	Sections 1(1), 2, 12
Domestic	Kenya Immigration Act 1967	Section 4(2)
Domestic	Kenya Trade Licensing Act 1967	Sections 3-5

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Ryszard Cholewinski, ‘Economic and Social Rights of Refugees and Asylum Seekers in Europe’ (2000) 14(3) Georgetown Immigration Law Journal 709

• The article refers to the definition of ‘degrading treatment’ accepted by the Commission in the case, highlighting that severe discrimination may amount to degrading treatment.
• The article identifies that the Commission found that racially discriminatory legislation which prevented Asian residents in Kenya and Uganda, who had retained their UK citizenship, from entering the UK for the purpose of settlement amounted to degrading treatment.
• On the basis of the findings of the case, the article contends that the complete denial of economic and social benefits to refugees or asylum seekers, or severe discriminatory treatment relative to nationals, may amount to degrading treatment where the severity threshold is met.

Mark F McElreath, ‘“Degrading Treatment” - From East Africa to Hong Kong: British Violations of Human Rights’ (1991) 22 Columbia Human Rights Law Review 331

• The article summarises the case, noting that the Commission focused on the Applicants’ submission about whether the actions of the United Kingdom constituted ‘degrading treatment’ under article 3 of the Convention.
• The article also explains that the Commission’s report led to the Applicants being granted the right of abode in the UK.
• The article compares the factors in the case to the exclusion of the people of Hong Kong from the UK, contending that the same issues which led the 25 CUKCs to make a claim against Britain applied to the people of Hong Kong. The author observes that the enactment of several pieces of legislation by the UK, commencing in 1962, reduced the status and rights of the people of Hong Kong in respect of the United Kingdom, and also left Hong Kong residents who were not of Chinese origin stateless.

Lauri Kaia, ‘Embracing the Chinese Exclusion Case: an International Law Approach to Racial Exclusions’ (2018) 59 William and Mary Law Review, 2617

• This article explains that the Commission’s use of the term ‘dignity’ in defining an international human right is not unique and that ‘dignity’ as a basis for equal human rights is internationally well-recognised.
• The author highlights the Commission’s reasoning behind the findings of violations of the Convention, including the idea that the contracting parties to the Convention agreed to restrict their power to control the entry of aliens under general international law. Although there was no right to entry under the Convention, the Commission noted that in certain circumstances, the denial of the right to entry might amount to ‘degrading treatment’. The author posits that in examining the prohibition of racial discrimination under international law, the Commission went beyond its remit: ‘the Commission had no reason to go that far because its finding of racial discrimination fell under the ECHR’s application’ (page 2638).