Proposals for radical reform of the UK’s asylum system raise a number of legal and constitutional issues, with respect both to the European Convention on Human Rights and the domestic principle of the rule of law. A showdown with the courts, at either the domestic or European level, seems likely — but if the aim is to play the populist right at its own game, perhaps that is all part of the government’s cunning plan.
The UK government has published Restoring Order and Control: A statement on the government’s asylum and returns policy, its long-awaited white paper on reforms to the asylum and immigration. This post does not seek to provide a comprehensive overview or evaluation of the proposals. Rather, I simply highlight four key aspects of the white paper that raise important issues of constitutional and human rights law, against the background of the ongoing political debate about UK membership of the European Convention on Human Rights (‘ECHR’), on which I wrote recently.
Destitution
First, the government proposes to ‘remove the current legal obligation to provide support to asylum seekers who would otherwise be destitute’:
In the coming months this duty will be revoked, and we will restore a discretionary power to offer support, as previously provided under UK law. In doing so, we will deny support to those who have the right to work and could therefore support themselves. This would include those who enter the country on a work or student visa with permission to work before claiming asylum, or those granted permission to work where their claim has been outstanding for more than 12 months. We will also deny support to those who have deliberately made themselves destitute. Anyone who has not complied with the conditions we impose – such as the failure to abide by a removal direction or working illegally – will also see their support removed.
It remains to be seen exactly how this proposal will be implemented. However, the government’s room for manoeuvre in this context is limited by Article 3 ECHR, which prohibits torture and inhuman or degrading treatment. It is well-established that reducing an individual to a state of destitution — by, for example, denying them subsistence support while also prohibiting them from working — can amount to the form of treatment prohibited by Article 3. It follows that the proposed discretionary power will — thanks to section 6 of the Human Rights Act 1998 (‘HRA’), which requires public authorities, including the Secretary of State, to act compatibly with Convention rights unless primary legislation clearly directs otherwise — have to be exercised in favour of providing support to asylum-seekers who would otherwise be destitute. In the light of that, the proposal to replace the duty with a discretion appears to be largely performative, given that the discretion will be subject to a legal duty imposed by the HRA to provide such support as is required to avoid breaches of Article 3.
Private and family life
Second, the government places particular emphasis on Article 8 ECHR, which requires respect for private and family life, arguing that recourse to Article 8:
currently leading to high numbers of arrivals from those who would not otherwise have the right to live in the UK. Over half of family and private life applications made from within the UK are granted leave on the basis that refusing them would be a breach of Article 8, even though they don’t meet the minimum income and English language requirements. Article 8 rights are also used to stop the removal of those who are living here illegally.
In the light of this, the government proposes, among other things, to enact primary legislation to address the definition of ‘family’ for the purpose asylum and immigration cases and how the balance is struck between the private and family life of the individual concerned and competing public interests. ‘Family’, the white paper says, will be defined as ‘not normally going beyond immediate family members; unless, for example, other family members are acting in a parental capacity or there is a different, exceptionally close link’. Meanwhile, new legislation will require ‘the public interest in maintaining effective immigration control, safeguarding our communities from foreign national offenders, promoting economic prosperity, and mitigating pressures on stretched public services’ to be ‘properly balanced’ against the right to private and family life. This, says the government, will require the balancing approach to be ‘fundamentally reset’ by ‘narrow[ing] the circumstances in which an individual’s Article 8 rights would outweigh the public interest in removing them’.
That a balance falls to be struck in Article 8 cases is uncontroversial, Article 8 being a ‘qualified right’, meaning that it can be limited when doing so is a necessary and proportionate means of securing a competing public interest. However, the range of public interests that can be invoked to justify a restriction of the right is limited by the text of Article 8(2). Those interests are:
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.
If the government’s new legislation is to survive judicial scrutiny by domestic courts (which are empowered to declare Acts of Parliament incompatible with the ECHR) and the European Court of Human Rights (the adverse judgments of which can require the UK to amend offending national law), it will need to show that the specific public interests it identifies in the white paper can form instances of the more generally expressed public interests mentioned in Article 8(2).
A further point worth bearing in mind is that unless it is disapplied, the new legislation that defines ‘family’ and sets out the Article 8 balancing test will itself be subject to the HRA, section 3 of which requires domestic courts to interpret national legislation compatibly with Convention as far it is possible to do so. Faced with that interpretive obligation, national courts would have to read the specific public interests in the new legislation narrowly enough to render them consistent with the public interests specified in Article 8(2). Of course, the new legislation could provide that it is exempt from the interpretive duty in section 3 of the HRA: but that would simply enhance the likelihood of Convention-incompatibility at the domestic level that would need to be corrected by the European Court.
Inhuman and degrading treatment
Third, addressing Article 3 of the ECHR directly, the white paper says:
We agree that people should never be subject to torture. However, the interpretation of “inhuman or degrading treatment” has been expanded over time. As a consequence, we see examples of foreign national offenders who are being allowed to stay in the UK on the basis of an Article 3 protection claim, despite committing serious criminal offences in the UK.
The implication appears to be that the extent to which an individual should be protected from inhuman or degrading treatment — including by protecting them from return to countries in which they would face a real risk of such treatment — depends, or ought to depend, on whether they have committed serious criminal offences. However, that view — which appears implicitly to revive the idea which has featured in earlier iterations of this debate that human rights should be contingent on individuals conscientiously discharging their civic responsibilities — finds no basis in Article 3, which confers an absolute right not to be subjected to relevant forms of ill-treatment. The government seems implicitly to concede that point by acknowledging that its preferred approach would be possible only if the text of Article 3 were to be amended:
To retain public confidence, the ECHR and other instruments must evolve to face modern challenges, and as the Prime Minister has said, the government will seek to do this. We are working with key partner countries over concerns that the interpretation of “inhuman or degrading treatment” has extended in scope, limiting their ability to make sovereign decisions on migration in their own democracies.
The implication here appears to be that, at least in relation to its inhuman-and-degrading-treatment limb (as distinct from the torture limb), Article 3 ought to become a qualified right in order to enable ECHR states to balance protection from ill-treatment against the public interest in effective immigration control. Such a step would amount to the crossing of a very significant Rubicon.
The rule of law
Fourth, the white paper proposes the creation of a new body to hear appeals against asylum decisions:
We will expand the capacity of the appeals system by creating a new appeals body. Decisions on appeals will remain fully independent. The new body will be staffed by professionally trained adjudicators, with safeguards to ensure high standards. Early legal advice will be a core part of system reforms, avoiding delays and late claims, leading to better decisions. In Denmark, a separate judicial system operates through the Refugee Appeals Board, where decisions are considered final and generally cannot be challenged in ordinary civil or administrative courts.
And some challenges, including challenges on human rights grounds that are considered to be ‘clearly without merit’, will, it seems, not qualify for appeals at all:
We will strengthen our approach to dealing with protection and human rights claims that are clearly without merit, so we can move straight to removal without an appeal.
It is difficult to say much about this aspect of the proposals without seeing more detail. However, a number of obvious questions arise, including: whether the new system will be any more efficient that the existing tribunals-based system; how, exactly, it will differ from that system; who will staff it and what sort of ‘professional training’ they will have had; and in what circumstances, if any, decisions by the new appellate body will be subject to oversight by the courts, whether by way of appeal or judicial review.
The latter has the capacity to be particularly controversial, both politically and constitutionally. Of course, the new appellate authority might turn out to be a truly independent judicial body with adequate legal powers to see that the government’s asylum decisions are lawful, in which case the fundamental rule-of-law requirement that the lawfulness of administrative decision-making is subject to judicial scrutiny will be met. If, however, the new appellate body were to fall short of that standard and the government were to seek to immunise it from any oversight by the regular courts, including by way of judicial review, that would imply a serious breach of the rule of law. And even if the new body is sufficient in itself to satisfy the rule of law, if, as appears to be in contemplation, there is to be no possibility of appeals — either to the new body or to any other tribunal or court — in relation to a subset of cases that are ‘clearly without merit’, the implication is that there will be at least some administrative decisions on asylum claims that are subject to no judicial oversight whatever. Perhaps the white paper simply fails to explain this point clearly enough, and there is more to it than meets the eye; but, on the face of it, this suggests that a fundamental breach of the rule of law is baked into the proposals.
For all of the reasons set out above, it is hard to imagine this white paper not inviting confrontation with the courts, whether at the national level or at the Strasbourg level. But if, as appears to be the case, the government aims through these proposals to steal the clothes of the two major right-wing political parties — whose populist framing of the immigration debate involves problematising both domestic and European courts as part of the elite which conspires to thwart the will of the people — then perhaps the likelihood of provoking a showdown with the courts is a feature of the white paper, rather than a bug.