The Human Rights Act and Refugees in the UK

The Human Rights Act 1998 came into full effect in the UK on 2 October 2000. It means that, for the first time, most of the rights in the European Convention on Human Rights (ECHR) are directly enforceable in the UK. All public authorities (which include government departments, the police, prison and immigration services, local authorities and other bodies performing public functions) will have to ensure that their decisions comply with ECHR rights; and if they do not, they can be challenged in any UK court or tribunal. New laws will have to be examined to see whether they comply with ECHR rights.

These are not, of course, new rights: the UK has been a signatory to the ECHR for nearly 50 years. But until now those rights could only be claimed directly in the European Court of Human Rights in Strasbourg. The fact that every UK court will be able to examine decisions in the light of human-rights compliance has made every public authority re-examine its decision-making processes and its guidelines and rules to check that they will withstand this kind of detailed scrutiny.

Additional protection

Refugees already have the benefit of another international convention, the 1951 Refugee Convention, which is already effectively part of UK law. The Convention means that they cannot normally be returned to a country where they fear persecution for certain specified reasons. And UK courts have been active in ensuring that refugees are not returned to a country where they would be at risk of persecution, or which might return them to another unsafe country.

However, refugees and asylum-seekers will now gain the additional protection of Article 3 of the ECHR, which prohibits torture, and inhuman or degrading treatment or punishment. Not only does it forbid states from carrying out these practices themselves; it also prevents them from returning anyone to another country where they face a risk of being subjected to such treatment. In practice, refugees (and certainly asylum-seekers) will not find it too difficult to secure legal aid to fund challenges, but their dispersal might make finding a competent legal representative difficult, since there are few such in many areas outside of London. There are two characteristics of Article 3 which may assist asylum-seekers: its breadth; and its absolute nature.

Unlike the 1951 Convention, Article 3 does not require anyone to demonstrate why they face the prohibited treatment. It does not have to be for a political or religious reason; it does not have to be part of state policy, or carried out with state complicity. For example, a person at risk of police detention in a state where such detainees are routinely tortured will only have to prove the risk of torture, and not the reason for it. Those who face a real threat of violence or rape, as a result of their countries being devastated by civil war, will not be returnable. There will, in other words, be an objective standard of ‘humanity’ against which removal must be measured.

In practice, many of the groups mentioned above are not at present forced to leave the UK; but they rely upon being given ‘exceptional leave to remain’ outside immigration rules. This is a discretionary, and often unclear, policy, and cannot be challenged at appeal. But when the Human Rights Act is in effect, the Home Office will have to consider explicitly whether there is an Article 3 risk, and the appellate authorities will be able to overturn refusals to grant protection on Article 3 grounds. This will have the effect of bringing these policies out into the open, and exposing them to direct challenge.

Second, there are no exceptions to the protection offered by Article 3. People can be refused refugee status, or deported, if they are held to be threats to national security, or if they have committed criminal offences. Article 3 does not permit any such exemptions. Once the risk of Article 3 mistreatment has been established, it is an absolute bar to return.

However, precisely because of its absolute nature, Article 3 has a high threshold. It is not enough to establish that someone will be treated unfairly or unjustly, or that they are likely to encounter living conditions or health or education standards that are significantly worse than those in the UK. The situation that they would face must be shown to be inhuman or degrading, not simply unwelcome or harsh, and they must be able to identify a specific, rather than a general, threat. UK courts, like the Strasbourg court, are unlikely to want the ECHR to provide a ban on returning anyone simply because they have come from a less developed, or more unstable, country.

The other ECHR article that may come into play is Article 8, the right to private and family life. So far, it has had a limited application in immigration and asylum. It does not automatically allow entry to the relatives of those already in the UK, or prevent the deportation of those who have established family ties while in the country. But there are circumstances in which it can be of assistance. If a family can only be reunited in this country, because it is unsafe for one family member to return to where the rest of the family is living, then Article 8 rights may be used to assist family reunion in the UK. This would be particularly important for asylum-seekers who are given exceptional leave to remain, rather than full refugee status, and who cannot immediately and automatically be joined by their families.

If an asylum-seeker has put down family roots in the UK while the application has been considered, and particularly if children are born in the country to a mixed-nationality couple, it may not be feasible for them all to return to the asylum-seeker’s country. And the longer the family has been here, the more likely it is that their rights to private life would be breached by forcing them to leave. Similarly, a child who is ill, or at a critical stage in education, would face a breach to private-life rights if forced to leave with his or her parents.

However, Article 8, unlike Article 3, is not an absolute right. Family and private life can be interfered with for immigration reasons, but only if it is necessary to do so, and if the degree of interference is proportional to the need. So, the stronger the family’s ties with the UK, the harder it will be to justify breaking those ties, in particular if this would have particularly detrimental consequences. But each case will have to be looked at individually, to see where the balance lies, and what the degree of harm would be in removal.

Article 8 also includes the ability to live a normal life, and to have your ‘physical integrity’ protected (for example, freedom from undue threats to your health or safety). This need not reach the degree of severity required under Article 3. So, in the context of attempted mass returns, for example of Kosovan Albanians, there may be individuals who are particularly vulnerable – such as single mothers without support – and who may be able to show that it would be a breach of their Article 8 rights to private and family life to expect them to carry out a normal life under such conditions. In these cases, too, it will be a question of balancing the consequences of removal against the need to enforce immigration control – unless the ill-treatment that they face is so severe that it would amount to an Article 3 breach, in which case they cannot be returned.

The other ECHR right that is frequently forgotten, but which is very important, is the non-discrimination right under Article 14. It is not a free-standing right, as it must be discrimination that relates to the exercise of one of the other ECHR rights. But it is very broad in its scope, as it can be used to challenge discrimination on any grounds, even those not specifically listed. In relation to asylum-seekers, it could be used to challenge differential return policies, which impacted on Article 8 rights, in relation to different ethnic or national groups, if that difference could not be objectively justified.

A baseline of rights

Perhaps the most important aspect of the Human Rights Act, however, is that it provides a baseline of rights beneath which UK decision-makers and judges cannot fall. That is particularly important in the light of European states’ increasingly restrictive interpretations of their obligations under the 1951 Refugee Convention; and indeed, the heavy hints that the Convention is out-dated and in need of revision. Yet, whatever the UK and other EU countries do about the 1951 Convention, they cannot escape their obligations under the ECHR. They are prohibited from returning people to face torture or inhuman or degrading treatment; they must justify any interference with private and family life; and they may not discriminate between those they choose to protect. Those are very important rights to have embedded in the UK’s law and practice, and should extend and strengthen the human-rights protection available to refugees and asylum-seekers.

Anne Owers is Director, JUSTICE, London. JUSTICE, 59 Carter Lane, London EC4V 5AQ, DX 323. Tel: +44 (0)20 7329 5100 Fax: +44 (0)20 7329 5055. The full text of the UK Human Rights Act 1998 can be found at http://www.hmso.gov.uk/acts/acts1998/19980042.htm.