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Henderson, Emma --- "Human rights, the HRA, and asylum seeker regimes in the UK: the new hamanitarianism?" [2006] NZYbkNZJur 4; (2006) 9 Yearbook of New Zealand Jurisprudence 46

Last Updated: 19 April 2015

Human Rights, The HRA, and Asylum Seeker Regimes in the UK: The New Humanitarianism?

Emma Henderson*

How we deal with asylum seekers is one of the tests of our civilisation. It is always more difficult and more controversial to take responsibility for looking after people who come from elsewhere and the issue often engenders irrational, primeval instincts about difference and alienation and causes politicians, the media and the public to overact and become overly defensive.¹

i. intrOdUctiOn

The UK Human Rights Act 1998 (“HRA”) is a fascinating development. In a nation with a history of strong commitments to civil liberties but no written constitution or bill of rights, the rapidity with which political rhetoric in the UK has shifted since 1998 to reflect an apparent acceptance of ‘rights’, is a powerful demonstration of the hegemony of human rights discourse. The HRA requires that all legislation be certified as human rights-compliant before it can be debated in Parliament. As a result, even issues where there seems to be no obvious connection with human rights – or where (as in the case of the asylum seeker regime) the legislation in question seems to be blatantly in violation of international human rights norms, are now referenced to the HRA. It is this ability for conservative forces to absorb the language of human rights without genuinely understanding or committing to the essence of rights, which provides the primary focus of this paper: far from being a shining example of the internalisation of human rights norms, the HRA provides an important example of the hidden perils in legislating rights. In light of the increasingly restrictive treatment of asylum seekers arriving in the UK, genuine questions about the effectiveness of the HRA as a mechanism of rights compliance are raised. Given that Victoria is currently searching for a legislative model for human rights reform, the UK HRA provides a cautionary tale with regard to both process and substance.

This paper provides an overview of recent legislative shifts in the UK’s asylum seeker regime, and relating these changes to the protections offered by the HRA. To that end, this paper seeks to first, provide an overview of the place

* Lecturer, Law School, La Trobe University, Melbourne, Australia

1 Simon Hughes, Hansard, House of Commons, 24/11/01, at col 100WH.

of ‘human rights’ in the UK legal system; secondly, examine the changing regime for asylum seeker processing in the UK; and conclude considering the effectiveness of the HRA as a mechanism for human rights promotion.

ii. the hra waS nOt intended tO

Be a dOmeStic BiLL OF rightS

Rather than setting out a list of fundamental freedoms in the manner of the Canadian or American Bills, the HRA authorises domestic legal proceedings against public authorities which breach (some of) the articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”). After all domestic remedies have been exhausted, the Act allows claimants to appeal to the European Court of Human Rights.² In doing so, the Act gives effect to articles 1 and 13 of the ECHR:

Article 1: States must secure convention rights to everyone within their jurisdiction.

Article 13: States must provide an effective remedy where violations occur

Section 3 of the HRA provides that in so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights. Where such an interpretation is not possible, courts do not have the power to affect the validity of the legislation in question, but instead are authorised to make a Declaration of Incompatibility. There is nothing in the Act which compels Parliament to remedy any such incompatibility.

The HRA requires UK courts to take European Court decisions and European Commission reports into account in interpreting the Convention rights (s2), thus ensuring that UK human rights practice develops alongside that of Europe. However, the “margin of appreciation” (the doctrine that each nation must be allowed some latitude in resolving conflicts between convention rights and

2 European Convention on Human Rights and Fundamental Freedoms as amended by the

11th Protocol. The ECHR has 59 articles in 3 sections and 11 protocols, of which the 1st,

4th, 6th and 7th confer further rights. (The others were procedural and are consolidated and replaced by the 11th). The UK HRA incorporates some articles from the 1st and 6th protocols (protection of property, education, free elections, and abolition of the death penalty). The HRA specifically derogates from Art 5(3) regarding terrorism, and Art 2 (1st protocol) regarding education. The UK has not ratified protocols 4, 6, 7 or 9 (9 now replaced by 11) (although plans were made to ratify article 7 - procedural safeguards for expulsion of aliens and the right of appeal in criminal matters, right not to be punished twice, compensation for wrongful conviction, equality of spouses). Protocol 4 provides, inter alia, against the expulsion of nationals and the collective expulsion of aliens.

national interest) is a settled part of European Convention law, and as such, both UK and European courts have accepted that the UK is able to go its own way to some extent in domestic policies.

Why the HRA instead of a Bill of Rights?

There lies at the heart of the HRA a contradiction. In introducing the Bill, Whitehall described its effect as “a tidal wave which will transform the legal landscape and affect every area of law.”³ However, the executive and the legislature were very clear in their intention that the Act not be seen as a domestic Bill of Rights or an instrument for rights litigation; politicians repeatedly argued that the purpose behind the Act was to change the idea of citizenship – to create a human rights culture in which litigation would become irrelevant:

... the internalisation of human rights culture is the point; all public authorities will know that their behaviour, structures and conclusions will be subject to HR review in the same way that race relations legislation and EEO legislation transformed social relations by making authorities ask ‘have we complied with’...⁴

The cultural change envisaged by the majority of Parliament (and particularly the government) was of a specific nature. In particular, Whitehall wanted to gain acceptance of a social compact which saw rights recognised in exchange for social obligations.

One of the problems which has arisen in Britain in recent years is that people have failed to understand from where rights come. The philosopher David Selbourne has commented on the generation of an idea of dutiless rights, where people see rights as consumer products which they can take, but for nothing. The truth is that rights have to be offset by responsibility and obligations. There can and should be no rights without responsibilities and our responsibilities should precede our rights. In developing that human rights culture, I want to see developed a much clearer understanding among Britain’s people and institutions that rights and responsibilities have properly to be balanced; freedoms by obligations and duties.⁵

The Home Secretary, Jack Straw, argued strongly in his second reading speech that the new Bill would not create new substantive rights but rather was focused on making existing rights more immediate and relevant through

3 Lord Woolf, MR, [1997] Denning Law Journal 1, cited in The 1998 HRA Explained, David

Leckie and D Pickersgill, The Stationary Office 1999, at 1.

4 Lord Williams, Hansard, House of Lords, 3/11/01, 1307.

5 Jack Straw, Hansard, House of Commons, 21/10/98, 1357-59.

the introduction of a sense of social obligation.⁶ To this end, while the HRA was attached to other policies such as the teaching of citizenship in schools, effective enforcement strategies were resisted.

The HRA did not create a central authority with powers to oversee the HRA or enforce compliance.⁷ The Home Office was given the role of implementing the HRA, but this task exists in conflict with its primary law enforcement portfolio, meaning that there is no real incentive to realise the full potential of the Act. The Home Office created the Human Rights Unit but this unit was small, under resourced and not high profile, focusing on risk management strategies rather than the possibilities of the Act. The Unit created guide materials and set up an effective framework to provide guidance to departments on their preparation for the Act but this is hardly evidence of cultural change in government.⁸

The ECHR has serious limitations as a cornerstone of a HR culture. Children’s rights, privacy rights, detention, asylum seekers and the administration of justice are all dealt with very weakly, if at all, in the Convention.⁹ The Convention does not deal with any collective rights and has no mechanism for dealing with endemic situations.¹⁰ Reliance on a narrow band of justiciable civil and political rights seems an oddly ineffective means of effecting cultural change. Given that the UK has a very strong record of domestic compliance with European Court rulings, simplifying access to the European Court rulings does not seem to signal a significant shift in government intention. One way to make sense of this is to understand that while the HRA was sold as a tool to effect cultural change, in reality the Act was intended more as a defensive mechanism. Overwhelmingly, when debating the HRA, parliamentarians expressed a strong desire to protect parliamentary sovereignty. Led by Home Secretary Jack Straw, politicians from both major parties argued that the authority to make decisions derives from a democratic mandate and that this primacy must be protected. The constant referral (and deferral) of UK

6 His use of the term ‘existing rights’ is another demonstration of the hegemony of rights discourse; strictly speaking, with no written constitution and no bill of rights, UK citizens did not have any inalienable “rights” but rather liberties recognized by the common law.

7 Jeremy Croft, Whitehall and the Human Rights Act (1998) [2000] Report 61: UCL Constitution Unit

8 Ibid; Jeremy Croft argues that the government sold the HR in terms of its cultural impact, rather than its progressive/obstructive impact, because it was easier to sell this way, but once passed the need or relevance of culture became obsolete.

9 Article 14, the catch-all discrimination provision, does not overcome these difficulties as it relates only to those rights set out in the other Articles and as such has no independent authority.

10 For instance in Italy the length of civil proceedings has been found consistently to breach the right to a fair trial, but, the European Court can not force the Italian government to change its procedures and, as a result, the Court deals with hundreds of individual complaints each year.

policies to the decisions of the European Court were seen as weakening the authority of the State. On the other hand, it was argued that giving UK courts the authority to set aside legislation because of their own interpretations of human rights, would confer excessive power on the judiciary and bring the courts into conflict with Parliament: indeed, even the courts did not appear to want that power.¹¹

Thus Spencer Zifcak has argued that the best way to view the HRA is as a containment strategy rather than as a springboard for pro-active change;¹² as a move to protect the sovereignty of the UK parliament from the depredations of the European Court, rather than a force for genuine cultural change. By certifying legislation under the HRA, the State acknowledges the importance of human rights, while at the same time UK courts are given just enough power to oversee that process but not enough to allow them to create their own brand of moral authority and thus set up in opposition to Parliament. Seen in this light, the shortfalls of the Act make sense.

What this means is that the HRA contains a vision of a human rights culture which is very different from the libertarian view that human rights empower individuals against executive and legislative overreach. Rather than having as its goal the UN ideal of HR as the “strengthening of respect for Human rights and fundamental freedoms and the development of the human personality and sense of dignity;”¹³ the HRA exists to defuse conflict by allowing individual citizens to protect (a few, specifically articulated,) rights, through the courts. It is in this light that we come to the asylum seeker regime in the UK and its relationship with human rights culture and the HRA. As the ECHR does not have a clearly enumerated right which speaks directly to the issue of asylum seeker protection, it will be seen that the HRA does not place any significant restrictions on government action in this area, regardless of how antithetical to a human rights culture that action may appear to be.

iii. the Uk aSyLUm Seeker regime

The UK’s obligations toward asylum seekers stem from Article 14(1) Universal

Declaration of Human Rights:

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

11 See for instance, the Lord Chief Justice speaking in the House of Lords in the 2^nd reading speech in November 2000, quoted in J Cooper and A M Williams, Legislating for Human Rights: The Parliamentary Debates on the HR Bill (2000) 5.

12 Supra n 7 at 27.

13 Jeremy Croft, supra n 7 at 13.

This right is the subject of the UN Convention on the Status of Refugees

1951, and the 1967 protocol, (to both of which the UK is a signatory) which provide that a refugee is someone who is in well-founded fear of persecution on the basis of race, religion, nationality, or membership of a particular social group. The 1951 Convention responsibilities were acknowledged in immigration rules created under the Immigration Act 1971. Those rules prohibited action in contravention of 1951/67 responsibilities and created a determination procedure in accordance with the UNHCR Handbook, providing that someone who is:

• in the UK or who has arrived at a UK port of entry; and

• a refugee within the meaning of the 1951 Convention and the 1967 protocol; and

• able to demonstrate that if the claim were refused, he or she would suffer refoulement to the country of origin contrary to the provisions of Article 33 of the 1951 Convention

will be recognised as a refugee in the UK. In addition, the 1971 rules created a separate category whereby asylum seekers denied refugee status could nonetheless be granted Exceptional Leave to Remain. ELR (now abolished and replaced with a new, less discretionary category of visa) operated on a purely discretionary basis, allowing the Home Secretary to grant permission to an alien to remain in the UK on the basis of hardship (eg for stateless persons), or for other reasons (such as the fact that the applicant had successfully assimilated into the community).

This approach was relatively unproblematic at its inception, but the disintegration of borders within the European Union and difficulty controlling the movement of people coming from Eastern European countries with boundaries beyond Europe,¹⁴ meant that by the early 1990s the numbers of those in the UK seeking asylum had grown to such proportions that politicians began to question the limits of UK obligations.¹⁵

The public/media/political opinion was that the overwhelming majority of those in the UK seeking asylum were using the system to facilitate economic migration. This perception was fuelled by the fact that roughly 20% of those making claims were recognised as either being refugees under the ECHR or

14 See for instance, Jack Straw’s comments: “Although the central and eastern European countries have improved their human rights record, countries further to the East may not have done, and their borders are leaky.” Jack Straw, Hansard, House of Commons, 1/2/01 at col 484-5.

15 The numbers of asylum seekers rose from 17,000 in 1993, to 34,000 (1997), to 71,700 (2001) to a record high in 2002 of 110,000 applications.

as meeting the criteria for the granting of Exceptional Leave to Remain.¹⁶

The rapid increase in numbers led to genuine political problems: in 2001 the official estimate put asylum costs at half a billion pounds – 100 million on processing costs and the rest on social security expenses. In addition, these kinds of numbers were not something the 1971 asylum regime had been designed to handle: throughout the 1990s there was an enormous backlog of cases waiting to be processed by the Home Office. In May 1998 there were

52,000 AS waiting for initial decisions, 10,000 of whom had been waiting more than 5 years.¹⁷ Added to this was the large number of missing asylum seekers

– the lengthy time delay between application and rejection means that by the end of the determination process, many applicants had simply disappeared into the community. Each year the number of asylum seekers removed from the UK is only a tiny percentage of the number of new arrivals.¹⁸ Politicians and commentators alike were of the opinion that the long waiting period before final determinations, and the fact that few failed applicants were removed from the country, combined with the fact that asylum seekers were entitled to work while in the UK, contributed to the international sense of the UK being

16 This figure included a small but steadily rising number of successful appeals. In 1997 there was a 6% success rate for asylum appeals; in 2001, a 19% success rate. The rapid growth in appeal success has less to do with the changing identities of asylum seekers than to do with courts acknowledging the very poor quality of original determination decisions and procedural unfairness as the government changed the legislative regime to speed up the process.

17 This backlog was dealt with by granting amnesties; in the 1999 legislation anyone who had been waiting for more than five years for an initial determination was simply granted a visa. This process was repeated again in 1999. In March 2005 there were 8,700 principal asylum seekers waiting for initial determinations – the lowest level in a decade. Roughly 5000 of them had been waiting for more than six months. Home Office press release 17/5/05: www. icburton/icnetwork.co.uk/natnews

18 For example, from January - October 2000 a total of 58,885 asylum claims were rejected;

7,610 were issued with orders to leave the UK (and presumably were removed), 18,000 were granted ELR and the other almost 30,000 continued to live in the community. In statistics released in 2004 - 2005, the Home Office reported that the total number of failed asylum seekers being removed has decreased; see HO press releases 24/8/2004 (news.bbc. co.uk/2/low/uk_news/politics/3592704.stm) and the National Statistics Online website: www.statistics.gov.uk

an easy target for faux asylum seekers.¹⁹ Thus, by the mid 1990s, at the same time that the HRA was being debated, there was also a strong sense of the need to tighten up immigration and refugee controls.

The Asylum and Immigration Appeals Act 1993 was the first legislative response to this changed attitude. Somewhat perversely, the 1993 Act put recognition of the 1951 Convention (s2) and the UK’s obligation of non- refoulement under Art 33 of the 1951 Convention (s6) into statutory form for the first time:

6. During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the UK.

Section 8 and Schedule 2 (paras 7, 8, 9) gave parallel protection until the end of the appeals process.

While this was a necessary and helpful development, the main purpose of the

1993 Act was to restrict some, and remove other, elements of the informal processing system that had sprung up around the 1971 immigration rules. For instance, whereas the 1971 system had very narrow detention provisions, the 1993 Act gave immigration officials broad discretionary powers to detain asylum seekers deemed not to fall within the convention categories. Significantly, detained asylum seekers had no recourse to the courts with regard to their detention. Also, the Act provided no right to appeal against a decision to refuse asylum.

The 1993 Act provided that asylum seekers were no longer entitled to income and employment benefits (and were no longer entitled to work until their claim was resolved). However, it also provided a social security net – applicants were classed as a group of persons who were, where appropriate, entitled to “urgent cases support” – and this entitlement was the gateway to housing benefits and free school meals, prescriptions and dental treatment. Applicants were in the same position under the House Act 1985 as other homeless people, except that they had to be content with “any accommodation, however temporary” and any need they established was to be regarded as “temporary only.”²⁰

19 See for example comments such as those of John Bercow; “...we are principally discussing

...large scale abuse of the asylum system in our immigration laws.... Britain is a soft touch;

a dozen a month are forcibly removed - so not surprising that numbers have increased from

32,500 in 1997 to 76,035 in 2000. [We need to ensure] that the centres are secure [so that] we can also guarantee that people seeking to evade immigration control are kept in one place and are unable to disappear into the wider community. They can then be speedily removed, which would have a significant deterrent effect.” John Bercow, Hansard, House of Commons 3/5/01, at col 331WH.

20 Section 4, Asylum and Immigration Appeals Act 1993.

By 1996 it was clear that these changes had not had any demonstrable effect in slowing asylum applications, and the newly elected Labour government introduced the Immigration and Asylum Act 1996, depriving asylum seekers of housing and income benefits.²¹ It also placed further responsibilities on airlines to screen out asylum seekers, and strengthened the detention powers of immigration officials. Nonetheless, the numbers of asylum seekers continued to grow exponentially, and in 1998, soon after the passing of the HRA, Home Secretary Jack Straw introduced an immigration white paper titled “Fairer, Faster and Firmer”. He labelled the approach “a more humanitarian approach to the UK’s obligations under the 1951 Refugee Convention.”²² He argued that the new regime fit within the doctrinal bounds of the HRA in that it sought a “new covenant” between State and asylum seeker;

[The HRA bill] is a landmark in the development of a fair and reasonable relationship between individuals and the state in this country. This is an important backdrop to the proposals in this white paper. [Asylum a]pplicants will be obliged to tell the truth about their circumstances, obey the law, keep in regular touch with authorities, leave the country if their application is rejected and in return they will be treated to a scrupulous application of the

1951 application, applications quickly resolved and not be left destitute while claims being determined.²³

The White Paper emphasis on “mutual obligation” found political and public favour, and took legislative effect in 1999. The first plank of the 1999 reforms “provid[es] incentives to asylum seekers to look first to their own means and communities for support, to create a support system separate from the welfare system.” To this end, the Act removed asylum seekers from the shield of the

1948 National Assistance Act, meaning that local councils had no ability to provide emergency aid for those within their boundaries. Instead of local government assistance, under the new regime the State would provide limited and strictly regulated welfare measures for asylum seekers. The total value of support was cut to 70% of basic income support levels and was only available to those who could prove themselves destitute.²⁴ If an applicant could meet this test, aid was provided by way of food vouchers, accommodation and petty cash.²⁵

21 The legislation did allow applicants to receive emergency medical treatment when required from the National Health Service.

22 Jack Straw, Introduction, Fairer, Faster, Firmer: White Paper (1998).

23 Ibid.

24 It was argued that those who intentionally made themselves destitute by “spending recklessly whatever money he brings into the country with him” should not be allowed to claim either. See for instance, Lord Williams, Hansard, House of Lords 20/10/99 at col 1158.

25 Originally eight, then ten pounds a week, cashed at a post office.

There is no sinister plot being considered or engineered... but asylum support is to be a last rather than a first resort. If there is other accommodation that meets their needs, they should not expect accommodation under the support scheme.... shared accommodation may be quite adequate.... Equally temporary accommodation can be quite satisfactory for some time during the limited period of their asylum claim....²⁶

Support was removed entirely for applicants who failed to win their appeal but went on to judicial review. When it was pointed out that that this meant that failed asylum seekers who were seeking review had no means to feed or house themselves, the government replied that the voluntary sector would come to their aid.²⁷

The accommodation scheme introduced in 1999 was described as a

‘dispersal’ scheme. Immigration officials were given the power to impose residence conditions on asylum seekers. These powers expanded those in the Immigration Act 1971 which only allowed officials to impose residence conditions to ensure departmental contact with the applicant, or to prevent absconding. By contrast the 1999 Act allowed the Home Secretary to make rules preventing asylum seekers from residing in specific areas of the country, or to require an applicant to live in certain kinds of accommodation such as Reception Facilities.²⁸ The Act also created the power to impose curfews on asylum seekers. These changes were argued not to offend the rhetoric of human rights, because genuine refugees would be grateful for any kind of support, whilst those abusing the system were not deserving of consideration:

If they are genuine refugees they will not care about [the location of accommodation]....²⁹

We do not want to be harsh... genuine asylum seekers who are fleeing persecution or a proper fear of it, could [not] object to being relocated [under the dispersal policy]... those who are using the asylum system merely as a vehicle for economic ends will not be happy but that is our purpose.³⁰

In addition to curtailing the freedoms of asylum applicants, and having set in place a scheme designed to remove incentives for economic migration (by preventing applicants from working until their claims were determined

26 Lord Williams, Hansard, House of Lords, 20/10/99 at col 1158.

27 See for instance, Lord Falconer, Hansard, House of Lords, 20/10/99, at col 1134. Lord Phillips argued in opposition that government should not be able to raid the assets of the voluntary section against its wishes (at col 1174).

28 These continue to be the subject of much debate in the UK, with strong resistance in the rural areas where it was intended that the centres be built; local governments have sought to use the HRA to prevent the building – with some success.

29 Jack Straw, Hansard, House of Commons 27/7/1998, at col 51.

30 Lord Avebury, Hansard, House of Lords, 20/12/99, at col 1164.

and the removal of unemployment benefits), the 1999 Act also created a regime for changing what were seen as the other key reasons for the influx of asylum seekers – the lengthy waiting period before final determinations and the ineffective removal policy. The 1999 Act allowed the speeding up of initial decisions by removing procedural controls, again under the rhetoric of human rights:

The Government believes that a policy of fair, fast and firm immigration control

will help to promote race equality.³¹

The measures which the government will introduce to speed up the processing of all claims will benefit genuine refugees and wherever possible these cases will be identified early and given additional priority. To that extent the human rights of refugees will be recognised more effectively than they are now.³²

The 1999 changes also increased the “manifestly unfounded” doctrine.³³

This allowed persons making “manifestly unfounded claims” to be placed in immigration processing centres, where, it was argued, they would be housed and provided with legal representation.³⁴ This policy was the subject of further amendment in 2002, with those coming from a list of designated ‘safe countries’ whose initial claims fail³⁵ unable to appeal decisions from within the UK, instead having to leave and appeal from outside. The list of countries subject to the safe countries doctrine has been expanded several times since its introduction, and forms a solid part of the UK political motivation for expansion of EU membership – citizens of one EU state will rarely, if ever, have genuine reasons for seeking asylum in the UK.³⁶

The new time limits designed to speed up the process mean that in practice an asylum seeker has ten working days to complete a 19 page statement of evidence in English and secure legal representation, even if subject to the

31 Supra n 22 at 15.

32 Ibid, 42.

33 Ibid, 9.

34 See Hansard, House of Commons, 24/11/01 at 96WH; provided for under regulations giving effect to section 4 of the 1999 Act.

35 These claims are highly likely to fail, given that the decision-makers have rules stating that persons from these countries are unlikely to be genuine refugees. The Oakington Processing Centre now houses those claimants who arrive from the 14 Countries in the “Non-Suspensive Appeals” list in the 2002 Act; statistics between 1997 -2004 demonstrate that removals of claimants from these countries increased by 73%; Immigration and Nationality Directorate “Asylum Fact Sheet” 1 July 2005. (www.ind.homeoffice.gov.uk)

36 See the Select Committee on Home Affairs, First Report on Border Controls. The Committee refers to section 11 of the Immigration and Asylum Act 1999 which provides that all other EU countries are safe third countries of asylum, meaning asylum seekers either originating from, or transiting through, these countries are generally ineligible for asylum.

dispersal policy.³⁷ In 2000, 26,000 applications were rejected for failing to meet the time limit, regardless of the legitimacy of the substantive claims within.³⁸

Further, in a move designed to provide a disincentive to people-smugglers, the Act provides that only people lawfully present in the UK can lodge an appeal within the UK. This means that those who arrive with false documentation and do not declare themselves at the immigration counter at their port of arrival, have no right of appeal until after leaving the country.³⁹ Those who do declare their false documentation upon arrival and immediately seek asylum at the port of entry, have a right of appeal at the IAT – but not the right to legal representation for that appeal.⁴⁰

The Act gave heightened powers to immigration officials, essentially giving them police powers of search, entry and seizure, and the right to fingerprint suspected illegal immigrants.⁴¹ The 1999 legislation also required marriage registrars to report any marriages that they believe are made purely for the purposes of immigration, and are empowered to request evidence of names, age and nationality with 15 days notice. In addition, the Act increased the probationary period to two years (up from one) before an asylum seeker can marry a UK citizen, and introduced a new non-switching provision so that a person can not apply to stay in UK on the basis of marriage after entering on another ground until after two years of marriage. Government members made much in parliamentary debates of encouraging communities with a culture of arranged marriages to look to residents within the UK as marriage partners:⁴²

37 Norman Baker, Hansard, House of Commons WH, 11/7/01, at 262WH.

38 Ibid.

39 This provision is deliberately aimed at cutting back on people-smuggling; those who enter a country under the control of a smuggler are usually unable to approach immigration officials at the port of entry.

40 The government provides indirect funding, funding legal centres which provide free assistance to applicants. For an example of the rationale behind removing legal aid, see “It is not necessary that a claimant have legal representation at asylum interviews: all they need to do is set out their case truthfully” Fairer, Faster, Firmer supra n 22 at 7.

41 The 2004 legislation has expanded this project, and the Home Office reported in March

2005 that the EU Electronic fingerprint database of Asylum Seekers and other 3^rd country nationals is now online. It allows the UK to require primary EU states to accept the return of asylum seekers who have lodged applications in other EU countries. It coincides with the Visa Immigration and Fingerprint Project which prevents asylum seekers who have used false IDs in their applications by matching them with any prior visas granted by UK missions abroad.

42 David Blunkett, Hansard, House of Commons, 7/2/02, at col 1028.

If parents [were to] arrange marriages within the UK community of Muslims... rather than by going back to the subcontinent to bring back young husbands and wives, that would help with many of [our] aims...⁴³

The next change came in 2002 with the Nationality Immigration and Asylum Act 2002. Amended in 2003, this Act provides that failed asylum seekers with dependants are ineligible for support once they have failed to comply with a removal direction, or where the Secretary of State certifies that such a person has failed without a reasonable excuse to take reasonable steps to leave the UK voluntarily or has placed himself in a position in which he is unable to do so.⁴⁴ Where the removal of support endangers children, then local authorities are required by the Children’s Act 1989 to provide for them – ordinarily this would be achieved by placing them in foster homes. It was suggested in Parliament that a parent who does not agree to this may be deemed to be an unfit parent and the children made wards of the State.⁴⁵

In 2004 the Asylum and Immigration (Treatment of Claimants) Act 2004 came into effect. This Act reinforced the safe haven doctrine (mentioned above), created several new offences (arriving in UK without valid travel documents and no reasonable excuse, trafficking a person for non-sexual exploitation) and allowed the Secretary of State to set a fee for specific types of applications at a rate designed both to exceed the administrative cost of determining or processing the application and to reflect the benefits that are likely to accrue to the ultimate beneficiary of the application.⁴⁶ Immigration officials were given expanded powers of arrest, for related crimes such as bigamy and forgery. The Act also changed the appeal structure, creating a one-level review whereby the IAT can review its own decisions, conduct reviews entirely in writing, uphold its decisions or substitute another decision or order a re-hearing of the appeal. The tribunal can only substitute a decision if there was a (serious) error of law (s10(4)) and can only order a rehearing if it thinks that it is necessary and where substituting a decision would be inappropriate or undesirable. Section

10(6) means that the tribunal can not review its decisions more than once.

Decisions are exclusive and final; section 10(5) read together with the new

43 Anne Cryer, Hansard, House of Commons 7/2/02, at col 1028.

44 For example, by failing to comply with steps to obtain travel documents. The removal of support provisions are set out in Schedule 3 of the Act; see in particular sch 3 (9) (2) (b).

45 This provision has been the subject of judicial scrutiny; see G v Barnet [2001], where the Court of Appeal accepted that the authorities had the right to offer a place in care for an asylum seeker’s child but no obligation to house the family. The same decision was reached in Ali & Mohammed v Birmingham (2002).

46 See the Minister of State for Citizenship, Immigration and Counter-Terrorism, in the explanatory notes to the Asylum and Immigration (Treatment of Claimants etc) Bill 27

November 2003.

s108A mean that there is no right of appeal, nor statutory or judicial review of the tribunal’s decisions by the higher courts. Section 108A(3) is essentially an ouster of the High Court’s supervisory jurisdiction over the tribunal.⁴⁷

iv. cOncLUSiOn

Whither the new humanitarianism?

The 1999 Act was passed and came into force in the window between the HRA coming into existence but before it had come into legal effect, meaning that the legislation was not subject to the certification process which requires the responsible Minister to table a document in Parliament stating that the legislation complies with the requirements of the HRA.⁴⁸ The post-2000 amendments to the 1999 Act, and the 2002 and 2004 Acts did fall within the bounds of the HRA, and were all certified as being HRA-compliant. That the certification process is essentially meaningless is demonstrated by the fact that these legislative instruments have been widely condemned as containing as many as thirteen potential breaches of the ECHR, ranging from religious discrimination in the sham marriages provisions, absence of legal basis for detention, absence of judicial control over detention, the low (and now, non- existent in some circumstances) level of welfare support which could (and is intended) to starve someone out of the country, thus potentially offending the non-refoulement provision of the UN Refugee Convention, as well as offending against the Convention on the Rights of the Child, and the right to privacy in the ICCPR. The absence of exemptions for those who bring refugees into the country when they are in imminent danger is another worrying aspect from a human rights perspective. The time limits, removal of legal aid, safe countries and save haven laws all potentially breach the Refugee Convention by making it difficult or impossible for potential convention refugees to establish their status as convention refugees.

In addition to these specific issues, there is also the bigger point about the lack of cultural change: if politicians were serious when they argued that HRA would create genuine opportunities for debate about human rights, the procedures followed in effecting change to the asylum seeker regime demonstrates an almost total failure on this count: the lack of effective debate on important issues and particularly the guillotining of readings of the Acts

47 This process can be seen at the Heathrow Airport Removal Centre, where the Harmondsworth Fast Track process is in operation; the Home Office claims that claimants are detained, put through the determination process including any appeals, and then removed, in an average of one month; see Immigration and Nationality Directorate Asylum Fact Sheet 1/7/05.

48 Section 65 provides that authorities must act in accordance with s6 of the HRA, and provides a ground of appeal if this duty is breached.

demonstrates a lack of commitment to a genuine human rights culture; for example in the 1999 debates, twenty government amendments, twelve new clauses and schedule 8 were guillotined at the committee stage and on report, which means that there was no debate on them at all. In addition, failure to consider Joint-Parliamentary Select Committee on Human Rights Reports before producing amendments, and refusing to acknowledge Human Rights Select Committee arguments that a Bill is not compatible with the HRA (in each case that this has happened, with no discussion or amendment, the Minister certified the Bill) hardly provide evidence of a new approach to human rights.

The form of the HRA is responsible for this lack of change: the ECHR does not provide any guarantees about the right to seek asylum, and the margin of appreciation means that the government has leeway in the way it provides for any of the rights that are set out in the Convention. An example of the way that this has played out in the asylum debate can be found in the removal of welfare benefits for asylum seekers. In debates in the Commons in November 2002 the Joint Committee on Human Rights published its decision that the relevant amendment was potentially incompatible with the ECHR. The Minister tabled a briefing note in opposition to this finding, stating that the Committee’s concerns about the legislation leaving people destitute and thus breaching Articles 3 (inhuman and degrading treatment) and/or 8 (right to private family life) were wrong. The briefing note states that “the European Court has set a very high threshold for breaches of Article 3. The fact that a person is destitute does not inevitably mean that there is a breach of Article 3. The European Court has held that homelessness does not necessarily reach the Article 3 threshold.” Such finely calibrated political indifference to human suffering does not indicate the “tidal wave which will transform the legal landscape and affect every area of law”⁴⁹ which was promised on its introduction, nor does it seem to live up to the promise of a new humanitarianism.⁵⁰

Instead what the HRA seems to have done is promote the belief that any state action involves a sense of obligation on the recipient – thus the burdens placed on asylum seekers have grown measurably, while the possibility of seeking asylum has shrunk. This is reflected in the January 2000 Council of Europe Report on Asylum, where the Council argued that the principle of freedom from persecution was in grave danger of being undermined by the climate of hostility towards refugees and AS in Europe. The Report also claims

49 Lord Woolf, MR, [1997] DenningLJ 1.

50 On the positive side, the Government has introduced the “Gateway Protection Programme” which provides a legal route for up to 500 UNHCR referred refugees, who have been given a clean health assessment and accorded refugee status by the Home Office, and offers this as evidence of the humanitarianism of the new regime.

that member state’s efforts to reduce the number of refugees and increasing attempts at European harmonisation have significant implications for non- member states, and that a right of asylum urgently needs to be incorporated into the ECHRFF. It is probably unnecessary to report that this request has not be recognised by Whitehall.