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News Legal/General News International Courts and the Domestic Adjudication of Human Rights and Immigration Cases in the United Kingdom
News Legal/General News International Courts and the Domestic Adjudication of Human Rights and Immigration Cases in the United Kingdom 
| International Courts and the Domestic Adjudication of Human Rights and Immigration Cases in the United Kingdom |
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| Wednesday, 25 January 2012 04:48pm | |
 By Nicholas Blake©The Commonwealth Lawyer (Used by permission) First published in The Commonwealth Lawyer, Vol 20, No 1, April 2011 Introduction It is well known that, in contrast to most Commonwealth countries, the United Kingdom does not have a written constitution or entrenched legislation protecting human rights. The United Kingdom was a founder member of the Council of Europe and was prominent in drafting and ratifying the European Convention on Human Rights 1950 (ECHR) that established the European Court of Human Rights. The ECHR provides amongst other things by Article 1 that states “shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention”. Amongst those rights and freedoms is Article 13 “The right to an effective remedy”. This reads:
Thus it is reasonably clear that by this international human rights treaty the United Kingdom undertook both to respect the substantive human rights set out in the ECHR to all subject to its jurisdiction, and also to provide an effective remedy before a national authority for violation of such rights. It is unsurprising that the ECHR was the inspiration and the model for many of many human rights provisions of the constitutions of independent Commonwealth nations drawn up after the 1950s. In 1966 the United Kingdom recognised the individual right of application to the Commission and the Court, and the period 1970 to 1998 has seen much debate in the domestic courts of the United Kingdom as to the impact of such facts in domestic law. The rather unsatisfactory decision of the House of Lords in Brind v Secretary of State [1991] 1 AC 696 reminds us that common law treaties are not self-executing and that an unincorporated treaty cannot be the source of legal rights or new legal duties. In public law cases, the ECHR may be a guide to how a reasonable decision maker ought to exercise a statutory discretion but not the source of a legal duty on the decision maker to direct him or herself according to the Strasbourg case law. Unsurprisingly, from 1966 to 1998 the United Kingdom lost many cases before the Strasbourg courts where neither the judiciary nor Parliament had applied their minds to the Strasbourg principles before passing judgments or laws that turned out to have engaged human rights questions. The Civil Service Code required members of the executive branch to have regard to the United Kingdom’s international obligations, but since there was no domestic judicial authority to rule on what those obligations were, a great many actions were taken in the fields of immigration, prison law, interception of communications and the like that were found to be violations of those obligations. The international duty to afford a domestic remedy for adjudication on arguable violations of rights seemed poorly provided for. In 1998 the United Kingdom Parliament passed the Human Rights Act which was brought into force in October 2000. It broadly creates a domestic legal duty on public authorities to act compatibly with the core provisions of the ECHR. Further, the constitutional legislation of the Labour Government in its first term saw devolution to a Scottish Parliament and executive of issues concerned with the government of Scotland, and there was a requirement on the Scottish executive, independent of the Human Rights Act to respect the human rights afforded by the ECHR. January 1973 had witnessed the accession of the United Kingdom to the European Economic Community (the Common Market), subsequently renamed the European Community and now called the European Union. This is a different institution to the Council of Europe although there are many overlaps. For example, Members of the European Union must also be members of the Council of Europe and recognise the individual right of application to the European Court of Human Rights. The ECHR is regarded as the embodiment of the common constitutional traditions of the European Union and a source of inspiration for the interpretation of European Union law. Recently the European Union adopted its own Charter of Fundamental Human Rights and Freedoms, reflecting but in a number of respects going beyond the ECHR. Under the European Communities Act 1972,1 European Union law is directly applicable in the domestic courts of the United Kingdom. This means that individuals can rely on European Union regulations, national law measures designed to give effect to a European Directive and, in certain cases, the Treaty itself when the provisions are clear, precise, and the time for implementing them into domestic law has passed. The Court of Justice of the European Union (CJEU) sitting at Luxembourg (formerly the ECJ) has responsibility for interpreting the meaning of European Union law. It may act on an application made to it by the governing bodies of the European Union – the European Parliament, Commission, and Council – or on a reference by any national court or tribunal seeking to find ?clarify the meaning of Union law; where the answer to the problem is not completely clear. A final court or tribunal must make the reference to the CJEU. There are thus two powerful European courts at Luxembourg and Strasbourg whose decisions have a significant effect on all those within the United Kingdom. There are other bodies whose decisions and opinions may also be influential in human rights questions that come before British judges even though there is no individual rights of application to them from those in the United Kingdom: the American Court of Human Rights in San Jose Costa Rica; the Human Rights Committee and the Committee Against Torture sitting in Geneva, both of which are charged with the supervision and application of the International Covenant for Civil and Political Rights and the Convention Against Torture; and indeed the General Assembly and Security Council of the United Nations itself. European Union law in the courts of the UK The decisions of the CJEU at Luxembourg are binding in the United Kingdom and can be directly applied in cases involving individuals covered by the point in question, irrespective of national law measures on the subject. All Member states of the European Union must accept this principle as part of the package of benefits and obligations that membership brings. EU law only operates where there is a need for a level playing field to give effect to the principles of an area of free movement of goods, services and persons. The EU legislator is required to apply the principle of subsidiarity and examine whether the issue can best be resolved at national or local level. EU laws must mean the same thing throughout the Union, and thus the national court cannot be the last word on the meaning of an EU law provision or a national provision designed to give effect to EU law. Many thousands of individuals have benefited from CJEU rulings on equal pay, sex and age discrimination and the like, where a dynamic principle of purposive interpretation has frequently gone far beyond what the national courts of the United Kingdom have decided or would decide employing strict construction principles of statutory interpretation. European Union law has been influential in the field of immigration, as the Treaty on European Union (recently renamed the Treaty on the Functioning of the European Union) provides a right of free movement to the territory of any other Member state of the EU for citizens of the EU and their families, as well as corporate entities established elsewhere in the EU. This is subject to the restrictions laid down in the Treaty and the measures giving effect to it, and proportionate measures of public policy against those who endanger the health or security of the host state. However, for those within the scope of EU law, it essentially gives rights of entry and residence to family of EU citizens - that is to say spouses, children under 21 and dependent relatives in the ascending or descending line, whatever nationality the family member is without much more than proof of the relationship (see Directive 2004/38/EC of the European Parliament and Council, the ‘Citizens Directive’). Domestic immigration rules are much stricter in terms of qualification, documentation and procedure. Thus an Indian national who is married to an Italian national working in the United Kingdom has free movement rights of entry that would not necessarily apply if he or she were married to a British citizen. EU free movement law is meant to have been brought into force in the UK by the EEA Regulations 2006 that are applied in the First tier and Upper Tribunal Immigration Chambers. Where the regulations make no provision for a right of entry recognised by the EU Treaty or where they impose requirements or restrictions inconsistent with the case law of the CJEU, these legislative measures must be dis-applied.2 The same result would follow if these measures were set out in primary legislation from Parliament.3 There are many examples of this principle at work to be found in the jurisprudence of the Upper Tribunal and the superior courts in the United Kingdom. Effect of international human rights decisions The position is different under the Human Rights Act. The legislative scheme may be summarised as follows:
Strictly speaking, under the Human Rights Act, the decisions of the national Court are not binding in domestic law. There is a duty on national courts in the UK to have regard to Strasbourg jurisprudence when interpreting the same rights as have been scheduled to the HRA, but the courts are free to disagree if they conclude such jurisprudence is obscure in its meaning and application or plain wrong. The Appellate Committee of the House of Lords (now the Supreme Court) under the leadership of the late Lord Bingham has established a body of learning that where there is a consistent line of Strasbourg jurisprudence, particularly where the Grand Chamber of the court has deliberated, such jurisprudence should be followed in the interpretation of the same rights.4 Thus, in 1996 in the celebrated case of Chahal v United Kingdom,5 the ECHR concluded that the right afforded to individuals within the jurisdiction of the United Kingdom not to be subjected to torture or inhuman or degrading treatment or punishment, applied to prevent the deportation of a person where there were substantial grounds for believing that there was a real risk of torture if returned to another country; further, this was an absolute right not subject to exceptions on the grounds of national security (unlike the nonrefoulement provisions of the UN Convention on Refugees 1951.6 The Court has re-affirmed this jurisprudence despite pressure from states to modify it in the light of the security concerns that have arisen in Europe post September 11, 2001. However, the United Kingdom courts are not bound to reach the same conclusion as the Strasbourg court. In the case of R v Horncastle and others (Appellants),7 the Supreme Court declined to follow the decision of the Strasbourg Court in Al-Khawaja and Tahery v United Kingdom8 to the effect that hearsay evidence would result in a criminal prosecution being conducted in breach of the right to a fair trial (Article 6 ECHR) where it was the sole or decisive evidence on which the conviction was based. The issue will now be decided by the Grand Chamber where the Strasbourg court will have the benefit of the detailed criticisms of the Al-Khawaja case by the British judges. 20. In Hirst (No 2) v United Kingdom,9 the Strasbourg Court decided that the British legislative provisions barring all serving prisoners the right to vote in general elections was incompatible with Protocol 1 Art 3 to the ECHR. The flavour of the judgment can be gauged from the following paragraph:
The reference to the margin of appreciation is a reference to the doctrine of the Strasbourg Court where difficult moral or policy questions are involved where the Court’s role is secondary to the choices made at national level. In the context of the right to vote this was made clear by remarks made by the Strasbourg Court in another case Greens v United Kingdom (2010):
The UK Parliament has delayed amending its legislation in accordance with this judgment. There is considerable opposition to this judgment by Members of Parliament, particularly in the Conservative party. In Chester v Secretary of State for Justice10 a prisoner sought relief from the English Court of Appeal saying that since it was obvious that the legislation was incompatible with the Convention the Court should exercise its jurisdiction to interpret legislation in accordance with the Convention so as to ensure that there is a December 2010 right to vote for at least certain classes of prisoners. The Court declined to so because it said these were policy and moral choices to be made by Parliament and not by the courts. Here was an issue on which reasonable people may disagree. Legislation is to be introduced giving the minimum number of prisoners the right to vote. Even this may be rejected by MPs though the government will warn that if nothing is done substantial damages awards are likely to be made by the Strasbourg Court. Local or international approaches With this brief description of how international judicial decisions operate in the United Kingdom, I can summarise the different positions taken about the benefits and burdens of such a system. National legislation is doubtless closer to the democratic forces in a particular society, can reflect its economic and social priorities, its deeply held beliefs and moral codes, and carries with it a perception of greater legitimacy and call for obedience to the law. National laws can also change with the mood of the people expressed in free elections, as Parliament is sovereign and (at least in the absence of an entrenched constitution) cannot bind itself on a particular topic. Politicians tend to think of themselves as better placed to make the relevant decisions on matters of moral or political controversy than judges generally and international judges in particular. There are distinguished former judges like Lord Hoffman, who have forcibly expressed the opinion that a body like the European Court of Human Rights is not necessary in a sophisticated democracy where national judges and legislators are best placed to identify which human rights should be respected and how they are to be interpreted and applied.11 On the other hand, there are the victims or indeed the instigators of national prejudices, and as most societies (and certainly all European societies) become more diverse in ethnic, cultural, religious and moral content, a Parliament merely reflecting the opinions of the majority may ignore others’ claims to respect. Lord Hoffman’s model of a common law constitutional convention which is presumed not to legislate contrary to fundamental and constitutional rights may be a perfectly sensible rule of statutory interpretation, but it is not a sufficient one to ensure respect for the human rights of minorities. The Council of Europe was established in the devastating aftermath of the Second World War where the consequences of unrestrained sovereign action by nation states were all to plain to see. A number of these governments: Nazi, fascist or Communist had come to power with popular support and their repressive measures against unpopular minorities reflected popular sentiment. These are not simply historical aberrations in Europe or the Commonwealth, as sadly too many contemporary examples of repressive and discriminatory laws would suggest. In the United Kingdom there are groups who may not be favoured by the majority in civil society: travellers, prisoners, irregular migrants amongst others, and these sentiments may be reflected by elected representatives in approving laws. In the case of Huang v SSHD,12 Lord Bingham made the pertinent observation that one reason why the Immigration Rules regulating entry of family members cannot be taken to be the legislative judgment on proportionality of interferences with the right to respect for family life, is that the subject of these measures will not be represented in the Parliament that adopts them. So if one wants respect for human dignity and fundamental human rights there must be an effective mechanism for recognising what those rights are, how they may be infringed and giving remedies for enforcing them, which means something above and beyond the reach of national legislators. A constitutional court with an entrenched bill of rights is one such mechanism, and is particularly useful in federal political systems such as India and Canada where it must adjudicate on the legislative capacities of the different units making up the federation. Human rights, however, are not a purely domestic concern – they are universal in nature although regional in application and enforcement as the American and African systems as well as the European show. A national constitutional court needs at least to be aware of and keep pace with the settled jurisprudence on the same topics addressed in international human rights law and national constitutional law. The Bangalore Principles promoted by the Commonwealth Lawyers’ Association were an important and imaginative call to be mutually aware of and respond to these principles and jurisprudence, and a gathering such as this one gives the lie to the corrosive assertion of some repressive regimes that universal human rights are western European or even neo-colonial in content, true although it is that these rights were not secured or enjoyed by colonial subjects during colonial times. For an informative account of the relationship between the United Kingdom, the ECHR and colonialism see Brian Simpson’s monumental work, Human Rights and the End of Empire.13 33. The cases of Chesters and Horncastle cited earlier in this paper suggest at least four things about the relationship between the national and the international court:
34. There are many notable examples of a sensitive dialogue between the international court, the national judiciary and the executive that in the end have produced better laws that better respect human dignity. Let me give a few examples: (a) In Rees v UK14 the Strasbourg Court held that the UK was not in violation of Art 8 in refusing to recognise a transgendered person for all social purposes in their post-operative identity. The Court noted the degree of social ambiguity resulting from this decision and measures that were being taken by other states internationally, although it recognised that the situation had to be kept under review. Nothing was done, despite further challenges and increasing expressions of concern by family judges in the UK. In 2002 the Strasbourg Court re-examined the matter and found a clear violation on every aspect of the claim in Goodwin v UK.15 (b) In Fitzpatrick v Sterling Housing [2001] 1 AC 27 the House of Lords concluded that a same-sex partner could be a family member for the purposes of succession to a tenancy. This decision prompted Strasbourg to re-evaluate its international jurisprudence as to whether such relations could be seen as part of family life in the light of developing social norms inside Europe. It concluded in a number of cases, including the recent decision in Schalk and Kopf v. Austria,16 that it could. (c) In Pretty v United Kingdom (2002} EHRR 35 1 the dialogue was the other way. The House of Lords concluded that a severely disabled person’s plea that her partner could assist her to die with dignity without risk of prosecution for assisting a suicide, did not engage the right to respect for private life under Art 8. The Strasbourg Court disagreed, but recognising the difficult ethical and legal issues involved, did not conclude that an absence of assurances violated the Convention. Subsequent concern led the national court to conclude in Purdy17 that some indication as to how the discretion to prosecute should be exercised was necessary in order to be in accordance with the law and proportionate. A code of guidance was necessary was subsequently drawn up by the DPP. (d) The case of McCann v United Kingdom18 was a decision of the Strasbourg Court finding that the right to life under Article 2 was violated in the organisation of a military operation to prevent terrorist operations in Gibraltar. The decision was hugely controversial in the United Kingdom at the time and deeply resented by many parliamentarians, but it has proved to be the core decision in a subsequent line of decisions imposing strict standards for state use of force, and demanding procedural standards at inquests or other inquiries where people may have died as a result of state action or failure to act. (e) At the same time and in similar vein is the Chahal case itself. It was not welcomed by the British Home Secretary (although in response to critics that the Court was being improperly activist in its constructions, it should be pointed out that it was precisely reflecting the terms of Art 3 of the UN Convention Against Torture that the United Kingdom had signed shortly beforehand). It can now be seen to have been prophetic in setting the standard that respect for human dignity does not tolerate extraordinary rendition or merely utilitarian arguments justifying the use of torture in the more dangerous world we all live in after the events of September 11, 2001. (f) In R v SSHD ex p Adan and Limbuela [2001] I AC 477 the House of Lords had to decide in what circumstances the failure to provide shelter and support to destitute asylum seekers who were waiting for decisions on their claims to refugee status made later than on entry to the country amounted to inhuman or degrading treatment contrary to Article 3. It was recognised that human rights law was not the source of a positive obligation to house and feed the indigent (here perhaps the European case law has not kept pace with some of the dynamic jurisprudence of the Indian Supreme Court on the topic). Nevertheless, it was concluded that the factors combining to prevent asylum-seekers looking after themselves (they were prohibited from working, denied access to the social security system, were dependent on the Home Office for the time and place where their claims were processed) meant that the failure to support those who were truly indigent and compelled to sleep on the street was a violation of this fundamental norm. Subsequent EU legislation (the Reception Directive) required all states of the Union to make adequate reception arrangements for asylum-seekers as part of a package of measures to enable states to return asylum-seekers to the first state of entry to the EU to determine refugee claims. It was well known that Greece’s implementation of these rules left a great deal to be desired and on 21 January 2011 the Grand Chamber of European Court of Human Rights in a significant judgment MSS v Greece and Belgium found a violation of Article 3 in respect of both the reception arrangements by Greece and the decision of Belgium to send asylum-seekers to Greece to face such conditions in the knowledge of the treatment that they would face, even though Belgium was acting under EU legislation in doing so. Conclusions This brief survey suggests that the relationship between international courts and national arms of government – executive, legislative and judicial – is the relationship between fundamental principles and local initiatives in developing and applying those principles to changing social needs. The notion of the rule of law and the requirements of fair trial have not remained static or frozen in time. Many forms of social regulation and control of those who have disturbed the public good or are assessed to be likely to do so, have been created consistent with human rights principles: examples are football hooligan travel bans, anti-social behaviour orders, control orders of suspected terrorists who cannot be prosecuted, civil confiscation of assets. Victorian notions of the fundamental elements of fair trial have grown to accommodate the evidence of children and other vulnerable witnesses, victims of serious sexual abuse, and such like. We have discovered that the bar on referring to previous convictions in a criminal trail can be lifted as long as the judge remains in control of the application to admit on relevance grounds and has discretion to exclude such material where is it considered purely prejudicial. Here an always-speaking human rights model may be more sensitive instrument that fixed constitutional norms permitting no departure from the practices of 1776 or whenever. But fundamental principles are just that. In the Old Testament God commanded “Thou shalt not oppress a stranger”. In terms of modern human rights law and the work of British judges making asylum, immigration and deportation decisions this singular command has devolved into three complementary principles:
Adjudication on measures that may oppress strangers is the work of the Upper Tribunal. There is a whole body of UK case law from the House of Lords down to the Upper Tribunal identifying these principles and working them out in a variety of contexts: children, marriages, durable relationships, limited overstay of conditions, lengthy irregular residence, criminal conduct and the like. It would be beyond the scope of this article to engage in a detailed citation of these cases. A sequence of decisions from the House of Lords in 2008 have been particular important: Beoku-Betts, Chikwamba, EB (Kosovo) and EM (Lebanon). The interested reader is referred to the BAILII website where they can all be found. There is a host of decisions confirming that offending by juveniles or those resident for most of their lives in the UK, or relatively minor offences where there are strong family ties should not justify deportation. These decisions would not have been possible without the dialogue with the case law of the international court developing the notion of respect and the limits of justified interference. They have now played back into the development of British public law where the abstractions of the Wednesbury test have tended to yield to more principles scrutiny of decisions affecting families and human rights interest. A very recent example is the decision of the Court of Appeal than Quila and others19 that it is a disproportionate measure against forced marriages to require every party to a marriage to be over 21 even when there is no suggestion of forced marriage problems. This is the practical aspect of the relationship between international and local justice. Deprived of a nexus to fundamental principle, some immigration decisions might be seen as arbitrary and unjust. With the nexus to human rights and the principle of proportionality in domestic and European law, judges have the necessary instruments of adjudication to prevent the public from the truly dangerous but respect the dignity of the individual and the core social relationships on which all human societies are based. [Mr Justice Nicholas Blake is a Judge of the High Court of England and Wales and President of the United Kingdom Upper Tribunal Immigration and Asylum Chamber. This article is based on a presentation made to the 17th Commonwealth Law Conference held in Hyderabad, 5-9 February 2011.] 1 s 2. 2 See Bigia v ECO [2009] EWCA Civ 79; [2009] Imm AR 515. 3 See ex p Factortame [1991] I AC 603. 4 See Regina v Special Adjudicator ex parte Ullah and Do v Secretary of State for the Home Department [2004] UKHL 17 June 2004. 5 (1996) 23 EHRR 413. 6 Art 33(1). 7 [2009] UKSC 14. 8 (2009) 49 EHRR 1. 9 (2006) 42 EHRR 41. 10 [2010] EWCA Civ 1439 11 See Lord Hoffman’s valedictory lecture to the Judicial Studies Board 2008, accessible here. 12 [2007] UKHL 11, [2007] 2 AC 167. 13 Oxford University Press, 2000. 14 (1987) 9 EHHR 56. 15 (2002) 35 EHHR 18. 16 24 Jun 2010. 17 [2009] UKHL 45. 18 (1996) 21 EHRR 97. 19 [2010] EWCA Civ 1482. Set as favourite Share Email This Comments (0)
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