The UK and the ECHR After Brexit: The Challenge of Immigration Control

Abstract

This article examines the challenges that immigration control-related political imperatives in the United Kingdom (UK) have posed for UK compliance with the European Convention on Human Rights (ECHR) and evaluates the challenges that the UK's moving away from ECHR compliance pose for its post-Brexit relationship with the European Union (EU) and its member states. The contribution begins with an examination of the constitutional parameters of UK (non-)compliance with the ECHR in the field of immigration control and the implications of this for the post-Brexit arrangements with the EU and its member states. The contribution then focuses on substantive immigration and refugee law and the impact of the current situation on asylum transfer co-operation within and outside of the EU. Through these areas, the article examines how EU law has infiltrated the interpretation of the ECHR with the result of raising standards of protection for asylum seekers and migrants and hampering the exercise of state sovereignty in the field.

1 Introduction

In this article we will examine the challenges that immigration control related political imperatives in the United Kingdom (UK) have posed for UK compliance with the European Convention on Human Rights (ECHR or Convention) and evaluate the challenges that the UK's moving away from ECHR compliance pose for its post-Brexit relationship with the European Union (EU) and its member states. The contribution will begin with an examination of the constitutional parameters of UK (non-)compliance with the ECHR in the field of immigration control and the implications of this tendency for the post-Brexit arrangements with the EU and its member states. The contribution will then focus on substantive immigration and refugee law and the impact of the current situation on asylum transfer cooperation within and outside of the EU. Through these areas, we will examine how EU law has infiltrated the interpretation of the ECHR with the result of raising standards of protection for asylum seekers and migrants and hampering the exercise of state sovereignty in the field. In a UK where the repatriation of state sovereignty has been a constant refrain of Brexit, this apparent interference is increasingly politically unacceptable. [1]

2 The Evolution of Human Rights Protection in the ECHR and in EU Law in Relation to Immigration Law

The ECHR predated the EU's initial treaties by one year. The UK was a strong supporter of the ECHR, perceiving the pressing need for the development of European human rights standards and participating fully in the negotiations. [2] However, the UK did not participate in the EU project commencing with the Treaty Establishing the European Coal and Steel Community 1951, followed by the Treaty Establishing the European Atomic Energy Community and European Economic Community Agreements in 1957 (which became the EU). Instead, it kept its distance from this economic integration project, only joining in 1973 and leaving in 2020.

While the two projects, economic integration (EU) and human rights (ECHR and Council of Europe), were and have remained separate both in their membership [3] and objectives, the gradual introduction of human rights into EU law, [4] which commenced in the early 1970s, brought ECHR rights into the sphere of EU law not least to avoid national constitutional challenges regarding the EU principle of the supremacy of EU law. [5] Similarly, after a number of experiments with intergovernmental cooperation in the field of borders, migration, and asylum from 1992 until 1999, the member states chose to transfer competence to the EU in 1999. But the UK obtained a right to opt into measures and not automatically be bound by them (it was accompanied in this resistance by Denmark and Ireland). [6] The field was one of such national sensitivity that the maintenance of national sovereignty over it was considered necessary.

The EU negotiated its own human rights regime in the form of the EU Charter on Fundamental Rights in 2000, [7] which included all the rights contained in the ECHR. However, here too the UK was a somewhat reluctant participant, arguing against direct legal effects. [8] Nine years later, the EU established the direct legal effect of the Charter in 2009, constituting it as of equivalent legal authority as the treaties themselves and specifically clarifying the relationship of the Charter and the ECHR, including an obligation (not yet achieved) for the EU to accede to the ECHR. [9] It is worth noting, however, that in 2009, when the Treaty on the Functioning of the European Union and the establishment of the Charter as equivalent to the Treaties took place, the UK, supported by Poland, sought to limit the impact of the Charter in domestic law by virtue of Protocol 30. [10]

The area of borders, migration, and asylum law has featured largely in the legal challenges to national law and practice, including that of the UK, on the basis of lack of compliance with human and fundamental rights. Both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have been faced with a multitude of cases where non-citizens have claimed that their human rights (including protection from return to persecution or torture, inhuman or degrading treatment, detention, family reunification, etc) are being violated by national immigration and asylum law. [11] These challenges commenced before the ECtHR in the 1980s as European states adopted ever more restrictive immigration rules. [12] Among the early successful challenges was against the UK regarding newly established limitations on family reunification for migrant (and British) women seeking to be joined in the UK by their husbands. [13] The cases accelerated in the 1990s as the UK's increasingly restrictive approach was extended to refugee determination and protection. [14]

For the CJEU, the defining period was after the transfer of competence for borders, migration, and asylum to the EU in 1999 [15] and the adoption of secondary legislation, in particular the Common European Asylum System. The UK was a lukewarm supporter of the transfer of competences. As mentioned above, it negotiated a protocol that allowed it to remain outside EU rules in the area of freedom, security, and justice where borders, migration, and asylum were placed. [16] It remained opted out of all EU secondary law on migration and borders but it did opt into the first phase of the Common European Asylum System (CEAS). The main impetus for this was to participate in the EU wide system of determination of the state responsible for processing asylum applications from anyone seeking protection in the EU, a system which permitted the UK to send asylum seekers who had passed through other member states before arriving in the UK back to another member state through which the passage had taken place (the so-called 'Dublin system'). [17] Both the EU and ECHR courts had to deal with the legality and human or fundamental rights compliance of the Dublin system and found it flawed in practice. While these challenges were not arising from references from the UK courts (CJEU) [18] or complaints against its actions specifically (ECtHR), [19] the findings of the two courts had consequences for the UK in that what the UK Government considered to be the benefit of participating in the CEAS, the possibility to send asylum seekers to other member states, was compromised by the failure of reception conditions in those other EU states. [20]

The intersection of the two European regimes of human and fundamental rights in the area of asylum has been less than propitious for UK Governments, which from the 2010s onwards have increasingly sought to limit access to the territory and asylum procedures for asylum seekers. At the time of writing, the so-called crisis of little boat arrivals of asylum seekers from France to the UK, [21] which itself is in part a result of Brexit and the loss of access to the Dublin system, is fueling legal approaches which are profoundly difficult to square with ECHR rights (see below on the UK-Rwanda MOU).

3 Legislating UK Immigration Control as a Challenge to the ECHR

Claims of asserting sovereignty in the field of immigration control, coupled with a willingness by the executive to limit judicial intervention in the field, have acted as driving forces behind calls for the UK to withdraw from the ECHR, calls which have intensified recently in the context of discussions of the UK policy on Rwanda and on the current Illegal Migration Act. [22] The Act contains a direct challenge to the enforcement system of the ECHR, including a clause which allows the UK Government to disregard 'interim measures' issued by the ECtHR under the latter's rule 39. [23] As explained by Dzehtsiarou, interim measures [24] can be used in cases where the victim is facing an imminent and serious threat to their human rights and are the sort of measures that blocked the first deportation flight to Rwanda from taking off in June 2022. Commenting on the Illegal Migration Bill resulting in the Act, Dzehtsiarou, notes that if the Bill became law, the UK would be the only country in Europe that legally gives ministers permission to disregard the legally binding order of the ECtHR. [25]

The UK approach towards the ECHR and its enforcement have been recently criticised in a Report to the Parliamentary Assembly of the Council of Europe (pace). [26] The Report notes that the pace is concerned that recent legislation introduced by the UK Government to Parliament, in particular the Bill of Rights Bill and the Illegal Migration Act, indicates an increased willingness on the part of the UK Government and certain legislators to legislate in a way that could risk breaching the UK's international legal obligations and thus the rule of law. The pace is extremely concerned at such developments, and in particular what signal that may send both domestically and internationally. [27] The pace expresses concern that both the Bill of Rights Bill [28] and the Illegal Migration Bill would lead to an increase in legal uncertainty and increasing conflicts between UK domestic law and the requirements of the ECHR. [29]

The Report contains a critical analysis of the adverse impact of the proposed repeal of section 3 of the Human Rights Act 1998 (HRA), [30] and contains strong criticism of the provisions of the Illegal Immigration Bill both on procedural and substantive grounds. In a strongly worded statement, the pace notes that there are a number of different provisions of the Bill that have caused the UK Government to be unable to say that the Bill complies with the UK's obligations under the ECHR. Substantial questions of compatibility with a number of different Convention rights have been raised. This indicates a more substantial appetite within the UK Government for non-compliance with the rule of law. [31] The Report continues by highlighting the potential incompatibility of the Bill's provisions with Article 4 (prohibition of forced labour) and Article 5 (limits of lawful detention) ECHR. [32] A specific and powerful criticism is reserved for the criminalisation of migration in the use of the terminology in the Bill and in the Government's discourse on 'illegal migration' and on 'migration crime'. The Report notes that:

Whilst it is normal that States should want to control their borders, it is deeply unhelpful to conflate migrants and refugees with criminals. Migrants and refugees may find themselves in an irregular situation with regard to immigration documentation; that does not make them criminal. To confuse immigration status with criminality is a dangerous pathway to dehumanising some of the most vulnerable people in society. Refugees deserved to be treated with humanity. States and public actors should desist from using terminology that conflates the plight of refugees with criminality. [33]

4 Immigration Control and the ECHR Post-Brexit

UK non-compliance with or withdrawal from the ECHR will have significant implications for the UK relationship with the EU and its member states after Brexit. Compliance with and giving effect to the ECHR is a key pillar underpinning EU-UK co-operation under the Trade and Cooperation Agreement (TCA). [34] Moreover, it is a constitutional pre-requisite for cooperation between the UK and individual EU member states after Brexit, as the latter are constitutionally bound to comply with EU law including in their external relations with third-countries. The TCA, which entered into force on 1 May 2021, states as the basis of cooperation democracy, the rule of law and human rights. Article 763(1) states that the parties will continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies. In that regard, the parties reaffirm their respect for the Universal Declaration of Human Rights [35] and the international human rights treaties to which they are parties. These measures include the ECHR. [36] The provisions on human rights constitute essential elements of the TCA. [37] A serious and substantial failure by either party to fulfil any of the obligations described as essential elements may lead to the suspension or the termination of the Agreement by the other party. [38] Serious breaches by the UK of the ECHR or withdrawal may thus lead to the suspension and termination of the TCA.

Compliance with the ECHR is also central in the TCA provisions on criminal law and law enforcement cooperation which are central to the development of EU-UK cooperation in terms of criminal law aspects of immigration control which are high priority for the UK Government, such as targeting human trafficking and migrant smuggling. Security and criminal justice cooperation are covered by a separate part in the Agreement, Part III on law enforcement and judicial cooperation in criminal matters. A key question for the future of EU-UK relations in European Criminal Law involves the substance and the monitoring of the constitutional benchmarks underpinning such cooperation. [39] Part III of the TCA contains a specific provision on the protection of human rights and fundamental freedoms in the field of law enforcement and judicial cooperation in criminal matters. [40] Cooperation is based on the parties' and member states' longstanding 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 ECHR, and on the importance of giving effect to the rights and freedoms in that Convention domestically. [41] The EU may terminate Part III if the UK denounces the ECHR. [42] Part III may also be suspended in the event of serious and systemic deficiencies within one party as regards the protection of fundamental rights or the principle of the rule of law. [43] It has been argued that the repeal of the HRA could, if not followed by a legislative substitute, potentially be considered as a deficiency big enough to trigger such suspension. [44]

Respect for and enforcement of the ECHR is thus key for cooperation under the TCA. The Court of Justice has already confirmed the importance of the UK being party to the ECHR for post-Brexit cooperation. [45] In a case involving detention under a European Arrest Warrant procedure after the Brexit referendum but before the formal withdrawal of the UK from the EU, the CJEU held that:

the issuing Member State, namely the United Kingdom, is party to the ECHR and, as stated by that Member State at the hearing before the Court, it has incorporated the provisions of Article 3 of the ECHR into its national law. Since its continuing participation in that convention is in no way linked to its being a member of the European Union, the decision of that Member State to withdraw from the Union has no effect on its obligation to have due regard to Article 3 of the ECHR, to which Article 4 of the Charter corresponds, and, consequently, cannot justify the refusal to execute a European arrest warrant on the ground that the person surrendered would run the risk of suffering inhuman or degrading treatment within the meaning of those provisions. [46]

5 Asylum, Fundamental Rights, and the EU Common European Asylum System

According to the EU statistical agency, EUROSTAT, the number of asylum applications in the EU first rose over ½ million in 1991 before dropping back to around 200,000 a couple of years later. [47] The figures rose again to over one million in 2015, before dropping back to around 400,000 five years later. [48] The variations in numbers of persons fleeing towards the EU are mainly the result of conflicts in the region: in the early 1990s, the implosion of the Soviet Union and armed conflict in the disintegrating Yugoslavia, and in 2015, the crumbling revolt against the regime in Syria and armed conflict there, as well as uncertainty regarding the position of Turkey as a safe country of refuge.

The reaction of the EU as regards the arrival of refugees was first the drive to bring the field of asylum within the scope of EU law (which took place in 1999), [49] which the UK participated in but with the caveat of the protocol mentioned above, and in response to 2015, the call for revision of the CEAS and EU border control, to make access to the territory and an asylum procedure more difficult, which the UK Government may have been sympathetic to but did not participate as the Brexit storm clouds were already gathering. [50] The incorporation of asylum into EU law specifically requires that the CEAS be compliant with international standards of refugee protection, namely the Refugee Convention [51] and 'all other relevant treaties', which must include the UN human rights conventions as well as the ECHR. The UK, while no longer bound by the CEAS or EU law, remains bound by the Refugee Convention and the Convention Against Torture [52] (two conventions with strong refugee protection obligations) and the ECHR.

The UK has not always been pleased with the judgments of the ECtHR in the field of asylum, in particular where the UK has been the respondent state. Indeed, judgments against the UK have been central to the interpretation by the Court of the prohibition on torture contained in Article 3. Starting with a non-asylum case, Soering, [53] where for the first time the Court held that Article 3 has extraterritorial effects in that it prohibits not only the state where the individual is present from committing torture, inhuman or degrading treatment or punishment against them, but it also prohibits sending someone to a country where there is a real risk that he or she would be subject to such treatment. This judgment was rapidly followed by an asylum related one, Vilvarajah, [54] confirming the judgment's applicability to asylum cases as well and requiring the UK to create appeal rights with suspensive effect in order to ensure that a person is not sent to a country where the risk exists. A few years later, the UK was once again found to be in breach of the Article 3 obligation where it sought to expel an asylum seeker on grounds of national security, contrary to the absolute nature of the prohibition contained in Article 3. [55] This required the UK to establish a court with jurisdiction to determine the legitimacy of national security threats where individuals are facing expulsion/deportation. [56] Particularly galling for the UK Government as regards these cases was the fact that it had succeeded in convincing British courts (including the Supreme Court) that their action was lawful, only to be found in breach of ECHR commitments by the ECtHR. [57] After the entry into force of the HRA, in many cases on asylum and detention that went to the ECtHR and where that Court found the UK in breach of its obligations, it was supporting national judgments in part or in full. [58]

The incorporation of ECHR asylum standards into their EU counterparts resulted in a strengthening of human and fundamental rights in EU law. While Brexit removed the EU layer of obligations to asylum seekers and refugees, it left their ECHR counterparts in place. The success of the Brexit project to remove obstacles to certain treatment of asylum seekers and refugees which were required by the CEAS has fuelled the movement to 'liberate' the UK Government from the ECHR obligations which also act as a brake on various policy proposals, which some ministers have favoured. [59]

However, it is essential to appreciate that any cooperation between the UK and EU member states after Brexit is conditional upon full respect of EU law and the ECHR. The UK has elevated cooperation with France as a key element of its current immigration policy. Yet, the UK is in a much weaker position to establish meaningful cooperation on return of asylum seekers after Brexit. As an EU member state, the UK participated to the Dublin Regulation, which enabled the return of certain categories of asylum seekers from the UK to the EU member state of their first entry. This is no longer possible after Brexit, with asylum and immigration policy not included in the areas of cooperation under the TCA. Moreover, in view of the existence and exercise of EU competence in the field of asylum, France is limited in terms of the extent of bilateral cooperation with third-states under EU law, with the way forward for the UK being an EU-UK agreement, which does not appear to be a political priority for either party. In any case, any agreement of the UK with the EU or with EU member states must comply fully with the EU acquis, including the Charter and the ECHR. Provisions in the Illegal Migration Act that are contrary to the ECHR system have profoundly negative consequences for the rule of law, directly undermine the relationship between the EU and the UK, and may cause the TCA to be suspended or terminated. [60]

6 Externalisation of Asylum: The UK-Rwanda Memorandum of Understanding

One of the recent (at the time of writing) controversies in the area of asylum and refugee protection in the UK is the law and policy to send asylum seekers who are present in the UK to Rwanda for the determination of their asylum claim and protection there if their claim is recognised. [61] This policy was first made possible through an amendment to the Immigration Rules in 2020, [62] which permits the UK authorities to designate as inadmissible the asylum application of anyone who could make an asylum application in a safe third-country. Such a designation means that the UK authorities are not obliged to consider such an application substantively. The definition of a safe third-country is that it is one where the individual's life or liberty is not at risk for one of the grounds set out in the Refugee Convention, [63] the country respects the principle of non-refoulement as set out in the Refugee Convention [64] or the Convention Against Torture, and where if recognised as a refugee the person will be given refuge. The UK authorities are permitted under this rule to send anyone seeking asylum to any safe country so long as the designated safe country accepts them. [65] Had the UK still been a member state of the EU and subject to the CEAS (at least in its first phase, which the UK had accepted), it would have been inconsistent with EU law for the UK to adopt such a policy as EU law requires a link between the asylum seeker and the destination state. However, this obstacle had been resolved by Brexit.

In order to implement this new policy, the UK entered into a memorandum of understanding (MOU) with Rwanda to send asylum seekers to that country. [66] This was done in April 2022, opening the door for removals of asylum seekers to Rwanda to take place. UNHCR, the guardian of the Refugee Convention, has been critical of the UK-Rwanda MOU. It has stated that 'asylum-seekers and refugees should ordinarily be processed in the territory of the State where they arrive, or which otherwise has jurisdiction over them […]. This is also in line with general State practice', and:

[a] State's refugee protection obligations are engaged, inter alia, when an asylum-seeker enters their territory, including territorial waters, or is intercepted at sea by their authorities […]. The primary responsibility to provide protection rests with the State where asylum is sought. [67]

Much legal opinion has been published which supports the position of UNHCR that the removal of asylum seekers from the UK to Rwanda for the processing of their claims is contrary to the UK's international commitments. [68]

At the time of writing, the UK has not been able to send anyone to Rwanda, notwithstanding substantial efforts to do so, as it has been blocked first by national courts. [69] However, for those very few cases which have not been blocked by UK courts, the ECtHR granted an emergency interim measure to stop removal from the UK to Rwanda. [70] In response, the UK Government threatened to withdraw from the ECHR because of this interference with its policy. [71] The Court of Appeal has held, on a majority 2-1 judgment, that removal of asylum seekers to Rwanda constitutes a breach of the ECHR, [72] a ruling which is likely to fuel further calls for the UK's withdrawal from the Convention. [73] It is expected that the case will be heard by the Supreme Court.

Considering that most of the claims had been dealt with by UK domestic courts, leaving only one which went to the ECtHR, the ire of the UK Government against the ECtHR seems somewhat misplaced. Yet, as regards the domestic courts, the Government has introduced legislation [74] which would exclude appeal rights for those subject to expulsion to Rwanda under the Immigration Rules. The Government does not have the power to pass legislation which could limit the jurisdiction of the ECtHR in a similar manner. The only option, if the Government is really determined to prevent the ECtHR from considering these cases, is withdrawal from the ECHR itself and then by extension from the Council of Europe.

7 Conclusion

In this article we have examined the complex relationship of Brexit, the ECHR, and UK politics in the area of immigration control, with specific reference to border control and asylum. As is apparent from the development of the case law of the ECtHR, the hardening of UK immigration law to restrict arrival and residence of aliens from the 1980s onwards and the inability of domestic courts to examine the human rights compatibility of these new restrictions (a power which only came into existence with the HRA 1998) led to an increasing use of the ECHR to seek a remedy. At that time, the (then) Government not infrequently threatened to withdraw from the ECHR in order to protect state sovereignty. [75] The political trend in the UK picked up speed in the 1990s when the legislator sought to diminish access to the UK territory and asylum procedures for those seeking international protection, a response to rising numbers of demands. Again, the ECtHR gave relief to some individuals on the basis of the prohibition on torture, inhuman and degrading treatment or punishment (Article 3). [76]

After the passing of the HRA 1998, domestic judges were able to take into account the HRA (incorporating the ECHR rights), which led to many immigration and asylum cases being dealt with on human rights grounds by domestic judges. Thus, the number of cases where the ECtHR has found breaches of the Convention by the UK authorities in the field of immigration and asylum more frequently supported, at least in part, the domestic courts' analysis of the human rights components. In 2000, the incorporation of the ECHR rights into the EU Charter of Fundamental Rights brought a new dimension to the complex relationship of the UK with human rights. Not only was the UK bound by the ECHR directly but also through EU law by the Charter. In the area of asylum, this was particularly important as the UK participated in the first phase of the CEAS measures which limited the power of national authorities to exercise their own appreciations of who should be allowed to remain on the territory as refugees as they had to apply EU law. The UK's departure from the EU has ended this fundamental rights 'buffer' of EU law in the form of the CEAS and Charter within the UK. The situation has reverted to that of pre-2000, when the ECtHR was the only supranational human rights court where individuals could seek protection from the harsher elements of national immigration and asylum law.

Nowhere is this more evident at the time of writing than in the (attempted) application of the UK-Rwanda MOU on the transfer of asylum seekers to Rwanda for the determination of their asylum claims on the basis of administrative decision (soon to be without access to judicial remedies). While domestic courts have so far prevented almost all of the removals on the individual facts of the cases, the ECtHR has used its powers to stop at least one of the removals, thus incurring the ire of the UK Government. [77] The escalation of the politics of state sovereignty in the UK which resulted in the Brexit referendum decision and its implementation also risk resulting in the withdrawal of the UK from the ECHR (and the Council of Europe). Presenting human rights protection as an obstacle to state sovereignty seems politically salient at the moment. However, it risks compromising the UK's reputation in the international community where acceptance of international human rights obligations has become an inherent component of statecraft. [78]

References

[78] T Risse and others (eds), The Power of Human Rights: International Norms and Domestic Change, vol 66 (Cambridge University Press 1999).