The ECHR, the Refugee Convention and UK Asylum Law

(1) A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.

…some element of choice is indeed open to refugees [..] merely short-term stopover en route to such sanctuary cannot forfeit the protection of the Article.

Counsel for the Crown (representing the Secretary of State, Director of Public Prosecution and Crown Prosecution Service) argued for a narrow interpretation, asserting that the phrase ‘coming directly’ required that asylum should be claimed in the first safe country entered.

Brown LJ’s interpretation of the scope of article 31 has been influential in international jurisprudence scholarship and advocacy and his definitions of “coming directly”, “presenting without delay” and “showing good cause” for illegal entry are included in the recent UNHCR Guidelines on International Protection for the Interpretation of Article 31 (2024). It is no longer valid law in the UK however, where the scope for judicial discretion was narrowed immediately after the Adimi judgment by the adoption of s.31 of the Immigration and Asylum Act 1999 and was reduced further by s.37 of the Nationality and Borders Act 2022 (see Part 3 below).

As Lord Bingham recognised in Asfaw, s.31(2) of the 1999 Act “is not to be found in those terms in article 31(1) [and] has narrowed its scope in comparison with what was contemplated in Adimi.”

Few refugees are able to enter the islands of the United Kingdom without first passing through the territory of another state, and the effect of s.37 of NABA 2022 is to exclude almost all refugees who enter or leave the UK from protection under article 31. This approach was described by UNHCR as a “fundamental misapplication of Article 31(1)”.

As noted in more detail in the conclusion, the ECHR places significant legal constraints on the Government’s ability to address immigration, veterans and protest issues and, currently, places some legal constraints on social housing, benefits and infrastructure projects (with the potential for climate-change litigation being the most significant risk of further interference).

If it is sought to remove these constraints, the simple answer is to leave the ECHR, which the UK could do legally pursuant to Article 58.

If the UK is to remain a signatory to the ECHR, attempts could be made to address the difficulties in immigration, veterans and protests through specific legislation. However, any legislation that sought to provide meaningful mitigations or solutions to these problems would face significant and potentially debilitating litigation (including in the UK) and would likely be held incompatible with the ECHR

It is clear, then, that a stringent regime could be pursued outside of the ECHR, while remaining within the Refugee Convention. For completeness, therefore, while I consider it would be prudent to consider withdrawal from ECAT and, at least, significantly amend the Modern Slavery Act 2015, I do not consider it necessary at this time to leave the Refugee Convention to be able to achieve your policy goals on immigration

While these will no doubt raise political issues, and will require careful consideration, they do not constitute legal barriers to leaving the ECHR.

However, if this Part is terminated on account of the United Kingdom or a Member State having denounced the European Convention on Human Rights or Protocols 1, 6 or 13 thereto, this Part shall cease to be in force as of the date that such denunciation becomes effective or, if the notification of its termination is made after that date, on the fifteenth day following such notification.

Without prejudice to Article 779, each Party may at any moment terminate this Part by written notification through diplomatic channels. In that event, this Part shall cease to be in force on the first day of the ninth month following the date of notification.

The cooperation provided for in this Part is based on the Parties' and Member States' long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.

Part Three of the TCA concerns criminal law enforcement co-operation. It provides for close co-operation on a range of issues: 269.1. Exchanges of DNA, fingerprints and vehicles registration data (Title II & ANNEX 39); […] 269.2. Transfer and processing of passenger name record data (Title III & ANNEX 40); 269.3. Cooperation on operational information (Title IV); 269.4. Cooperation with Europol (Title V & ANNEX 41); 269.5. Cooperation with Eurojust (Title VI & ANNEX 42); 269.6. Surrender (Title VII & ANNEX 43); 269.7. Mutual assistance (Title VIII); and 269.8. Exchange of criminal record information (Title IX & ANNEX 44).

This report shows that the Belfast Agreement does not require either the United Kingdom or the Republic of Ireland to remain a party to the ECHR. Each state has the same right under Article 58 of the ECHR to withdraw from the Convention, a right under international law that is not qualified in any way by the Belfast Agreement. UK withdrawal from the ECHR would not constitute a breach of the Belfast Agreement.

The conclusion is clear: withdrawal from the ECHR would breach the B/GFA, destabilise Northern Ireland’s constitutional settlement, and jeopardise hard-won peace.

This is an express legislative commitment by the UK, building on the UK’s existing status as a party to the ECHR. Under Article 2 of the British-Irish Agreement it is a “provision” to be implemented and maintained on an ongoing basis.

The Irish Government meanwhile, has categorically rejected the idea of ECHR withdrawal as being compliant with the B/GFA.

In addition, it would make no sense to read a duty on the British Government to incorporate the ECHR into the law applicable in Northern Ireland, with direct access to the courts, as entailing a further and quite different duty to remain a party to the ECHR.

Article 692 enables the EU to use the UK’s ECHR withdrawal as a basis to terminate this part of the Agreement. What these provisions recognise, separate to the UK’s B/GFA obligations, and additional to their breach, is that the UK’s withdrawal from the ECHR would have serious consequences for the EU-UK post-Brexit policing and criminal justice cooperation arrangements.

The 46 member states of the Council of Europe, which includes the UK, have today adopted a non-binding political declaration clarifying the operation of the European Convention on Human Rights (ECHR), with particular relevance to immigration and asylum law.

The minimum level of severity of ill-treatment that constitutes inhuman or degrading treatment or punishment must therefore remain high and constant, and be clearly and consistently applied at all levels, avoiding unnecessary constraints on decisions to extradite, or to expel foreign nationals.

Where an individual is being expelled or extradited, the quality of accessible healthcare in the receiving State should only give rise to a real risk of treatment contrary to Article 3 in very exceptional circumstances described in the Court's case law.

According to the case law of the Court, where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court's case law, the Court would require strong reasons to substitute its view for that of the domestic courts.

45. States Parties may establish their own immigration policies, which may include co-operation with third countries, provided that they continue to fulfil their Convention obligations. 46. It is important that States, including those that are exposed to mass arrivals, can pursue new approaches to address and potentially deter irregular migration. Amongst the forms of new approaches that have been envisaged by several member States are processing requests for international protection in a third country, third country "return hubs", and co-operation with countries of transit.

Recourse to diplomatic assurances may obviate a risk of violation of Article 3 following expulsion or extradition.

Regarding the content of the declaration on migration that is to be approved today, this delegation states that Spain does not align with the references made in paragraphs 46 and 47 to “return hubs”.

The document was published on Thursday as part of an effort led by Italy and Denmark. It was also signed by leaders from Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania and Poland.

"It is important to assess whether, in some cases, the court has over-extended the scope of the convention compared to its original intentions, thus altering the balance between the interests to be protected," they wrote.

The bill would create a new organisation called the Independent Immigration Appeals Authority (IIAA) which would eventually replace the tribunal. Instead of judges, appeals would be decided by IIAA adjudicators. Adjudicators wouldn’t have to be legally qualified or have legal experience. The government says this would make it easier to recruit more decision-makers, helping to reduce delays and process appeals more quickly.

Part 2 (clauses 17 to 20) contains measures to reform interpretation of Article 8 of the European Convention on Human Rights.

The IIAA’s Chair and Professional Standards Officer would be appointed by the Home Secretary.

It aims to tighten the rules so that fewer migrants secure residence rights in future: an accompanying impact assessment suggests that there could be 11,700 more Article 8 cases refused.

It would not be appropriate to set a fixed target for reducing Article 8 grants, successful appeals or the number of people granted leave. These outcomes depend on the facts of each case and on the volume and characteristics of future applicants, which cannot be predicted reliably. The modelling in this impact assessment presents possible impacts under stated assumptions; it is not a target or forecast.

It has been estimated that 55 per cent of those who are denied Article 8 claims may not leave the UK, based on those refused a Family and Private life visa in 2022.

Annually, the total increase in volume of Article 8 applicants who are removed from the UK or claim asylum following their application outcome is estimated to be 3,600.

The Immigration and Asylum Bill continues the regressive trend of recent immigration legislation by weakening human rights, undermining procedural fairness, and putting at risk the UK’s compliance with international law. Moreover, there is no evidence that the Bill will achieve its policy objectives to save money or end the asylum backlog.

There is a tension between issuing precise statutory instructions on what Article 8 means, and the fact that the meaning of Article 8 is ultimately determined by the European Court of Human Rights in Strasbourg.

Under Article 33(1) of the Refugee Convention, no contracting state may “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

In the UK, people who argue that their removal would expose them to such treatment usually claim asylum. Asylum claims (and appeals) are based on the UN Refugee Convention rather than Article 3. The asylum system is the primary mechanism for dealing with cases that might otherwise be covered by Article 3.

The central obligation (“Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees”) requires interpretation as to both personal scope (who is a refugee) and substantive application (what is a penalty).

The European Union introduced the concept of “first country of asylum” through the hierarchy of processing principles under the Dublin arrangements,while Australia pioneered the use of extraterritorial asylum processing and other extreme measures to deter irregular arrival by sea.

In conclusion, there is no escaping the fact that withdrawal from the ECHR would provide the EU with a ground to terminate Part 3 of the TCA. However, there exists a right to terminate by either party for any reason whatsoever in any event on twelve months’ notice. As such, the consequences of any such withdrawal are more likely to be political than legal.

S. 37 in force at 28.6.2022 by S.I. 2022/590 , regs. 1(2) , 2 , Sch. 1 para. 19 (with Sch. 2 para. 6 )

As enacted, this precluded the defence from being used if a refugee stopped in another country before reaching the United Kingdom, unless they could show that they could not reasonably be expected to have been granted protection under the Refugee Convention in that country.