Asylum and human rights

Why is asylum a human rights issue?

Although the practice of states granting asylum is very old, the idea of political asylum as a basic right was first expressed in Article 14(1) of the 1948 Universal Declaration on Human Rights, prompted by the experience of those fleeing Nazi persecution in the run-up to and during World War 2.

The 1951 Convention Relating to the Status of Refugees (the Refugee Convention) broadened the criteria under which states would grant asylum to include not just those fearing persecution on traditional political grounds but also those with a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group’.((See Article 1A(2) as amended by the 1967 Protocol.)) In particular, the Refugee Convention granted a broad range of specific entitlements to those recognised as falling within its criteria.

Although the international legal framework for the protection of refugees was established in the immediate aftermath of WW2, asylum did not become a significant issue in most Western countries until after the end of the Cold War when the numbers of asylum seekers rose significantly.

This in turn has focused attention on the gap between the rights of foreign nationals under UK law vis-à-vis the rights of UK citizens. Although the Refugee Convention grants a broad range of rights for those recognised by the state as refugees under the Convention, it is largely silent on the position of those applying for refugee status, ie asylum seekers. ((The Refugee Convention does provide some limited protection, including Article 31 which prohibits states from imposing penalties on refugees who entered the country illegally.)) In the absence of such protection, the provisions of the European Convention on Human Rights (ECHR) by way of the Human Rights Act 1998 has been used to safeguard the rights of asylum seekers.

What are the main human rights issues facing asylum seekers?

Since the early 1990s, asylum seekers in the UK have been made subject to an increasing array of restrictions on basic rights. These include restrictions on the right of asylum seekers to appeal against negative asylum decisions by the Home Office, the introduction of ‘fast track’ procedures with minimal safeguards against removal, the use of ‘non-suspensive’ appeals whereby asylum seekers are forced to return to their home country to continue their appeals, the detention of asylum seekers for purely administrative purposes, limitations on access to medical treatment, and – in extreme cases – the removal of income support for food and shelter.

Food and shelter?

Section 55 of the Nationality Immigration and Asylum Act 2002 empowered the Home Secretary to deprive asylum seekers of subsistence support where satisfied that they had failed to apply for asylum ‘as soon as reasonably practicable after the person’s arrival in the United Kingdom’. When the provision came into force in early 2003, large numbers of asylum seekers were made destitute without money for food or shelter because Home Office officials determined they had failed to apply for asylum within 24 hours of their arrival, regardless of the reason for the delay in each case.

In the 2005 case of R v Secretary of State for the Home Department ex parte Limbuela¬†(([2005] UKHL 66)), the House of Lords upheld the decision of the courts below that the government’s policy of waiting until an asylum seeker’s destitution had reached the standard of inhuman or degrading treatment before reinstating support was itself in breach of Article 3 ECHR.

How are restrictions on asylum seeker’s appeal rights justified?

One of the major problems for asylum seekers is that the European Court of Human Rights has repeatedly held that the guarantees of Article 6 of the European Convention on Human Rights does not apply to asylum decisions, on the basis that the right to asylum is not a ‘civil right’ within the meaning of Article 6(1) (see eg the judgment of the Grand Chamber in Maaouia v France 5 October 2000).

This has led the government to introduce fast-track procedures, non-suspensive appeals, and restrict appeal rights (see eg the Immigration and Asylum Act 1999, the Nationality Immigration and Asylum Act 2002). Most notoriously, as part of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the government tried to include a clause ‘ousting’ the jurisdiction of the higher courts to judicially review the decisions of the Asylum and Immigration Tribunal. However, this clause was defeated in Parliament following strong opposition from JUSTICE and others, including the Bar Council and the Law Society.

Nonetheless, the replacement of judicial review with a more limited form of statutory review has so far survived legal challenge((See eg F(Mongolia) v Secretary of the State for the Home Department [2007] EWCA Civ 769)), although the matter may yet be heard by the House of Lords.

What about the detention of asylum seekers?

Under Schedule 2 of the 1971 Immigration Act, the Home Secretary has the power to detain for a limited period foreign nationals seeking to enter the UK. This power was historically used sparingly but in 1999, the government announced a policy of detaining large numbers of asylum seekers in immigration detention centres for administrative purposes in order to ‘fast track’ their applications.

In the case of Secretary of State for the Home Department ex parte Saadi (also known as the ‘Oakington’ case)(([2002] UKHL 41)), JUSTICE intervened to argue that the detention of asylum seekers purely for the sake of administrative convenience of the Home Office amounted to a breach of the right to liberty under Article 5 ECHR. Unfortunately the Law Lords held the government’s policy of detention was justified under the terms of Article 5(1)(f). The European Court of Human Rights has recently heard an appeal against this decision and judgment is expected shortly.

In the meantime, the use of immigration has greatly expanded since the policy was introduced in 1999 and reports by the Chief Inspector of Prisons frequently attest to poor conditions in immigration detention centres.

How does the Human Rights Act 1998 help protect asylum seekers?

It provides an additional ground of protection, chiefly in relation to removals. Even if an asylum seeker does not qualify for refugee status (due to the relatively narrow grounds of persecution for a Convention reason), the Human Rights Act enables the courts to prohibit removal where an asylum seeker’s return to their home country would otherwise result in a ‘real risk’ of ill-treatment contrary to Article 3 (see the decision of the Strasbourg Court in Soering v United Kingdom) or a ‘flagrant breach’ of any other Convention right (see the 2004 House of Lords decision in Ullah v Special Adjudicator(([2004] UKHL 26)), in which JUSTICE intervened). In addition, an asylum seeker’s family life in the UK may prevent removal but only in the more exceptional cases (see the 2007 judgment in Huang v Secretary of State for the Home Department).(([2007] UKHL 11))