What are the legal implications of Labour’s new asylum reforms?

Some of the government’s aspirations – increasing capacity in the immigration appeals system, clearing the large backlog of cases, speeding up decision making, provision of early legal advice – are sensible and uncontroversial. They will obviously require increased resources, including properly trained and qualified people.

Other aspects of the proposals – where they limit the rights of individuals – are likely to be the subject of litigation and thus to be tested in the courts. I discuss here some of the main examples – although in many areas the government’s document is light on details, and much will depend on the precise terms of the legislation when it is brought forward.

Revoking the duty to support

The government proposes to replace the current duty to provide support to asylum seekers who would otherwise be destitute with a discretion to do so. This discretion will be limited in various ways – for example, support will not be available to those who deliberately make themselves destitute, or who “break the law”.

Any discretionary power conferred on a public body must be exercised rationally and in accordance with the law. Thus decisions not to grant support will in principle be subject to judicial review (or possibly some specific form of appeal if the legislation creates one). “The law” here includes (unless the new legislation excludes it) the Human Rights Act 1998, which requires courts and decision makers to give effect to the rights in the European Convention on Human Rights (ECHR). There will thus be scope for legal challenges if claimants are denied support in circumstances which breach their Convention rights – for instance, where the effect is that they suffer hardship so extreme as to amount to inhuman or degrading treatment within Article 3 of the ECHR.

Article 3 is an absolute right, i.e. it is not subject to balancing with other factors. So the right not to be tortured, or to suffer inhuman or degrading treatment, is not conditional on compliance with national law or other kinds of “good behaviour”. That aspect of the government’s proposals will therefore potentially be vulnerable to challenge.

Resuming removals to certain countries

The government has decided that refugee status should be temporary, and that individuals should be returned to their country of origin if there has been a regime change. That seems over-simplistic. The ECHR, the UN Refugee Convention and the international law principle of “non-refoulement” prevent a refugee from being removed to a territory where they would face serious harm or persecution. Removal to a safe territory is permissible. But the mere fact that there has been a regime change in a previously unsafe country plainly does not automatically mean it is now safe. Compliance with the principle of “non-refoulement” will require case-by-case assessment of the situation in any particular country, and of the risks to any particular refugee.

Creating a new appeals body

The government says a proposed new appeals body will be “independent” and “staffed by professionally trained adjudicators”, but the details here are thin. It is not clear whether it will be a judicial body, i.e. a court. The government’s document says that in Denmark decisions of the Refugee Appeals Board “are considered final and generally cannot be challenged in ordinary civil or administrative courts”, but does not say explicitly that it intends to replicate that model in the UK.

Decisions of public bodies (including lower tribunals) are generally subject to judicial supervision and review by the High Court. If the UK appeals body is not itself a court but an administrative body (however competently staffed), any attempt to oust judicial review of its decisions entirely will be highly controversial and viewed as undermining the rule of law. It is also likely to breach Article 6 of the ECHR, which confers a right “to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” for the purposes of determining a person’s civil rights and obligations. Thus there could be challenges under the Human Rights Act – unless the legislation excludes those too – and claims before the European Court of Human Rights in Strasbourg.

Article 8 of the ECHR

The government is concerned that Article 8 of the ECHR (which provides a right to respect for family and private life) is used too often as a ground to block removals. Article 8 is a qualified right which can be limited on certain public interest grounds. The government proposes to legislate to narrow its scope in three ways:

• To strengthen the public interest test which decision makers and courts must apply in determining whether removal would breach Article 8.
• To set out a narrower definition of who counts as a family member for the purposes of Article 8, to include “normally” only “immediate family members”.
• To limit how and when Article 8 claims can be made.

This is not the first time a government has sought to set legislative boundaries around the application of Article 8 in immigration cases. The Immigration Act 2014 set out public interest factors which must be taken into account in such cases – for example, that “the maintenance of effective immigration controls” and “the deportation of foreign criminals” are in the public interest; as well as factors that should be given “little weight” – for example private life or relationships established at a time when a person is in the UK unlawfully. It is not clear how the proposals in the first bullet above will add to the measures introduced by the 2014 Act.

In any case, the further the government goes in trying to limit Article 8 rights in national law, the more likely it is that the legislation or decisions under it will be challenged under the Human Rights Act. In particular it might be argued that the legislation goes beyond what is permissible under the ECHR, for example that the public policy justification for it does not fall within one the permitted factors set out in Article 8 (namely national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others). The UK courts will be bound to apply the new legislation and have no power to set aside an Act of Parliament, but under section 4 of the Human Rights Act they could make a declaration that the legislation is incompatible with the ECHR, and claimants whose claims have failed in the domestic courts could take their cases to Strasbourg. The Strasbourg court typically allows states a “margin of appreciation” in determining where the balance between different public interest factors should be struck in giving effect to qualified rights. That court already takes a fairly narrow approach to some aspects of Article 8, for example the definition of family members, and has upheld provisions of the UK law (pursuant to the 2014 Act mentioned above) stating that the public interest in deporting certain foreign criminals could be overridden only in exceptional cases.  

However in that judgment the Strasbourg court observed: “where the domestic courts do not carefully examine the facts, apply the relevant human rights standards consistently with the Convention and the Court’s case-law, and adequately balance the interests of the applicant against those of the general public, the Court remains empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8”. ⁴ Unuane v United Kingdom, 80343/17, 24.11.2020, paragraph [79].  So again the details of the proposed legislation will matter. The greater the restrictions which it places on Article 8 rights, or on the ability of domestic courts to weigh the relevant factors, the greater the chance that the Strasbourg court will say it has gone too far.  

Article 3 of the ECHR

The government is also concerned that the interpretation of Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment, has expanded over time. It correctly notes that Article 3 is an absolute right and so cannot be balanced against other public interest considerations (and see above on the duty to provide support). It seems therefore that the government does not propose to legislate to try and alter the interpretation of Article 3 in domestic law (which would indeed be very challenging). Instead, it is “working with key partner countries” on the definition of “inhuman or degrading treatment”. Presumably the aim is to agree an amendment to the text of Article 3 or at least some form of interpretative statement. Although possible in principle, this would require multi-state agreement and could take years.