The Human Rights Act and jurisprudence pertaining to Seekers of International Protection
UK courts are required, pursuant to section 2 of the Human Rights Act (HRA) 1998, to ‘take into account’ the case-law of the European Court of Human Rights (ECtHR) and to interpret legislation ‘in so far as it is possible to do so’ in a manner compatible with the European Convention on Human Rights (ECHR) (section 3 HRA). Per section 6(3) HRA, as a ‘public authority’, it is unlawful for courts to act in a way which is incompatible with a ECHR right, and they can hold the Executive to account for failed to meet its obligations under section 6(1) thereof. Given this context, my contribution considers key effects of the HRA on Seekers of International Protection (SIPs), arguing that the application of ECHR provisions to SIPs has significantly impacted their immigration status and associated rights in the UK.
Seekers of International Protection
SIPs include recognised ‘refugees’ per the 1951 Convention relating to the Status of Refugees (the 1951 Convention) as well as ‘asylum-seekers’, namely persons whose applications for recognition as refugees are pending. The UK Parliament has reported that, in 2019, 35,737 persons applied for asylum in the UK.
Whereas the UK ratified the 1951 Convention on 11 March 1954, ‘the Convention as a whole has never been formally incorporated or given effect in domestic law’ (Asfaw [29]). Nevertheless, pursuant to section 2 of the Asylum and Immigration Appeals Act 1993 ‘the immigration rules’ (within the meaning of the immigration Act 1971) ‘shall not lay down any practice which would be contrary to the [1951] Convention’.
The HRA has significantly affected the protection of rights of recognised refugees and asylum-seekers. Yet, whereas the 1951 Convention only applies to those who meet its ‘refugee’ definition (namely those who fall within the remit of Article 1A(2) and are not excluded from its application pursuant to Articles 1D, 1E, or 1F), ECHR protections – and by implication those of the HRA – extend to ‘everyone’ within the UK’s jurisdiction (per Article 1 ECHR).
Consequently, other SIPs who do not meet the 1951 Convention definition such as ineligible asylum-seekers or those seeking protection in the UK pursuant to other grounds also enjoy such protections. In litigation, SIPs have primarily relied on Article 3 ECHR (prohibition of subjection to torture or to inhuman or degrading treatment or punishment) and Article 8 (respect for private and family life), alone or in combination with Article 14 (prohibition on discrimination). Occasionally, they have invoked Article 5 (right to liberty and security) and Article 6 (right to a fair trial). In the next section, I highlight key ECtHR and UK cases in which Articles 3, 8, and 14 have affected SIPs’ immigration status and associated rights.
1) Article 3
Deportations/removals: whereas the nonrefoulement obligation in the 1951 Convention applies only to those who meet its ‘refugee’ definition and is not absolute (Article 33(2) stipulates that its benefits cannot 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 judgment of a particularly serious crime, constitutes a danger to the community of that country’), the ECHR Article 3 prohibition on deportations entailing real risk of exposing a deportee to torture, inhuman, or degrading treatment or punishment is couched ‘in absolute terms’ and ‘makes no provision for exceptions’ or derogations (Ireland v UK [163]). Consequently, some prima facie deportable refugees pursuant to the 1951 Convention will be protected by ECHR Article 3.
Prior to the coming into force of the HRA, in Soering v UK, the ECtHR held that deportations are subject to Article 3 considerations: namely, ECHR signatories are not only prevented from carrying out prohibited practices in their own territories, but also from deporting persons to other countries where they face real risk of being subjected to such practices. As per TI v UK Article 3 applies also in cases of ‘indirect removal[s]…to an intermediary country’ which ‘do not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3’. In SH v UK, the ECtHR found substantial grounds for believing that there is a real risk that the applicant, failed asylum-seeker of Nepalese origin, would be subjected to ill-treatment if returned to Bhutan.
The HRA renders it more likely that cases like Soering, TI, and SH will be adjudicated in UK courts, taking into account ECHR jurisprudence, rather than forcing applicants to seek redress in Strasbourg, resulting in a violation finding of with consequent remedies as well as preventable waste of temporal and monetary resources. Y and Z (Sri Lanka) offers a sound example: the Court of Appeal held that returning ineligible asylum claimants to Sri Lanka, where they had previously suffered torture, would expose them to risk of self-harm which cannot be controlled given lack of access to care and treatment, thus violating Article 3.
Destitution: the HRA has enabled UK courts to scrutinise social assistance policies affecting SIPs not just on ‘ordinary’ JR grounds but also through the lens of ECHR rights. In its seminal Limbuela judgment, the House of Lords enjoined the then Home Secretary from relying on Section 55 of the Nationality Immigration and Asylum Act 2002 to deny ‘late’ asylum-seekers subsistence support, a practice deemed likely to render them destitute given the concurrent prohibition on gainful employment. The House of Lords found that the duty to act, pursuant to section 6 HRA, arises not only when someone is enduring treatment contrary to Article 3 (at which point the Home Office was willing to offer them support), but also when there is an ‘imminent prospect’ of that occurring. Lord Bingham held [6] that ‘the [Article 3] threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life’. Lord Hope reiterated [55] that ‘the obligation to refrain from…[Article 3 incompatible] conduct is absolute’. By logical extension of the Limbuela rationale, the High Court in MK and AH found that delaying welfare support to two failed asylum-seekers who became homeless and destitute while awaiting a decision on their fresh asylum claims involves a significant risk that their Article 3 rights would be breached.
2) Article 8
Respect for the right to private and family life may affect SIPs’ immigration status in the UK. Whereas Article 8 rights are subject to limitations (viz. Article 3), such limitations must be pursued for an (enumerated list of) legitimate aims and be ‘necessary in a democratic society’. Generally, it is harder to justify deportation of SIPs with strong, established ties to the UK, especially when this would have particularly detrimental consequences for dependent children.
The House of Lords in Ullah noted that, according to ECtHR jurisprudence [47] extradition and expulsion may in cases of a ‘real risk of a flagrant violation of the guarantee of family or private life engage Article 8’, offering as an example ‘the expulsion of an alien homosexual to a country where, short of persecution, he might be subjected to a flagrant violation of his article 8 rights’. Ullah is also where it was famously held that [20] pursuant to section 2 HRA ‘[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.
In Huang the House of Lords found that, where the family life of an applicant is prejudiced ‘in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8’, refusal of leave to enter or remain would be unlawful.’ In Ex Parte Razgar, it held that, despite finding no Article 3 violation, removal to Germany was nevertheless prevented given the serious psychological trauma suffered by the applicants, as mental stability was considered fundamental for enjoyment of private life as per Article 8.
Precarious immigration status: another positive effect of the HRA has been the streamlining of ECHR considerations in primary legislation. When Parliament seeks to restrict recourse to grounds for challenging immigration decisions (to refuse leave to enter or remain), it does so by reference to ECHR considerations. For instance, in Section 117B(4) of the Nationality, Immigration and Asylum Act 2002 (brought into effect by Section 19 of the Immigration Act 2014), Parliament stipulated that, in Article 8 cases, a person’s private life or relationship formed with a qualifying partner [British citizen or someone settled in the UK] established while unlawfully in the UK should be given ‘little weight’ by a tribunal as part of its ‘public interest considerations’. Section 117B(5) similarly stipulates that little weight ‘should be given to a private life established by a person at a time when the person's immigration status is precarious’. By legislating to restrict recourse to Article 8 in such cases, Parliament recognised that, in other immigration cases, recourse is not (and should not be) similarly restricted.
Brexit: The UK’s departure from the EU may have the effect of bringing ECHR considerations to the foreground in cases pertaining to returns or deportations to EU member states, especially given that the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 disapplied the Dublin Regulation (the EU system of allocation of responsibility for assessing asylum claims). In NA (Iran) the Court of Appeal was not satisfied that conditions in Latvia (which had initial responsibility for processing the asylum applications of NA and her husband under Dublin) would fall short of its obligations under the Reception Directive, a benchmark for determining that there is a high risk that an individual’s Convention rights (protected through the HRA) would be violated. In ZAT (concerning war-torn Syrian children previously staying in the Calais ‘Jungle’ who sought asylum in the UK without applying through the designated route in the Dublin regulation), the Upper Tribunal held that, only in ‘exceptional circumstances’ would an Article 8 ECHR claim succeed absent a Dublin application. On this occasion, however, the Home Secretary’s refusal to admit the applicants disproportionately interfered with their Article 8 right to family life, given the physical violence they had experienced in the ‘Jungle’ and that their medical needs were unmet there. Given the disapplication of Dublin, prospective returns to EU member states such as Latvia and France may no longer enjoy a rebuttable presumption (compare: MSS v Belgium) that standards there are convention-compatible, potentially necessitating greater resort to ECHR analysis.
Notably, EU asylum law was partly retained, including the Refugee or Persons in Need of International Protection (Qualification) Regulation 2006 which implements the Qualification Directive. Article 15 of this Directive defines ‘beneficiaries of international protection’ to include, in addition to 1951 Convention refugees, those entitled to subsidiary protection based on ‘real risk’ of ‘serious harm’. Given the textual similarity between Article 3 ECHR and Article 15(b) of the Qualification Directive, greater resort to ECHR jurisprudence in deportation cases may depend on the extent to which UK courts choose to consider Luxembourg judgments in interpreting retained EU law. According to section 6(2) of the European Union (Withdrawal) Act 2018, UK courts ‘may have regard’ to such judgments, but they are not bound by principles or decisions made after the implementation period’s ‘completion date’ (31 December 2020)(European Union (withdrawal agreement) Act 2020).
3) Article 14
Unlike the Equality Act 2010, the prohibition of discrimination based on one of the listed statuses or ‘other status’ under Article 14 of the ECHR is not free-standing: it must be discrimination that falls ‘within the ambit’ of other ECHR rights. However, Article 14 can be used to challenge adverse effect on Article 8 rights and any other right in the ECHR if differential treatment cannot be objectively justified, even if the practice in and of itself does not violate Article 8 or other rights.
In Hode and Abdi v UK, the ECtHR held that a Somali refugee’s spouse would be able to join them in the UK despite the refugee having been granted five-year Temporary Leave to Remain (TLR) (and hence not a person ‘present and settled in the UK’) and the marriage having taken place post-flight (in Djibouti). The court found that spouses of students and workers, also TLR status-holders who were able to sponsor their spouses’ applications were in an analogous position to refugees; hence, the differential treatment could not be justified. That Article 14 can be relied on in UK courts to challenge practices that have adverse effects for SIPs is significant.
Conclusion
Through its careful structure, the HRA creates a measured system for scrutinising Executive policies and primary legislation that affects SIPs’ immigration status and rights. it enables UK courts to pre-empt adverse Strasbourg finding, and streamlines ECHR rights-based considerations in decision-making. The implications of ‘modifying’ applicable ECHR rights through e.g. altering the non-absolute nature of Article 3, raising the threshold for its application, revising Article 8 criteria, or indeed of no longer mandating UK courts to ‘take into account’ ECtHR case-law would be profound: at best, it would force SIPs to seek remedies for rights violations in Strasbourg, given the jurisprudential divergence that will inevitably ensue; at worst, they may end up destitute or deported in breach of their convention rights.
Comments
Post a Comment