Blog post by Dr Jonathan Collinson, Senior Lecturer in Law, University of Huddersfield. Jonathan is a former refugee law caseworker and teaches immigration and asylum law.
In an article for the Telegraph as part of his Conservative Party leadership campaign, Rishi Sunak said that one element of his “ten-point plan” for the UK’s asylum system was to:
“tighten our statutory definition of who qualifies for asylum in the UK, bringing our test for protection in line with the Refugee Convention rather than the ECHR. This will prevent anyone who enters the UK illegally from staying here. And where the ECHR is an obstacle, I will tackle it.”
This post demonstrates how this statement is legally illiterate. As a short statement of law, it manages to make four significant errors which render it meaningless: it implies incorrectly that the European Court of Human Rights (ECtHR) has jurisdiction to determine who is a refugee; it confuses the influence that the ECtHR has over human rights standard settings with power to do so; it confuses two kinds of legal protections for those at risk of harm (namely, Refugee status and Humanitarian protection); and/or misrepresents the circumstances in which the government’s attempt to remove asylum applicants to Rwanda was thwarted. Although, it must be said that the statement is so dramatically wrong in its description of the law that it is hard to parse what might actually be meant by the author.
Although this post is with respect to a statement made by one of the two candidates for Conservative Party leader, it should not be taken as implicit that the other candidate has not also made significant legal errors or misrepresentations around the subject of asylum and immigration. However, other posts elsewhere have addressed some of these. In addition, by focussing on a short portion of the article by Sunak it should not be assumed that the rest of it is factually or legally well-founded.
Jurisdiction
How might a test for refugee status protection have got out of sync with the Refugee Convention in favour of the ECHR (European Convention on Human Rights), as Sunak implies? The text of the ECHR itself has nothing to say directly about asylum or refugees, and the judicial body of the ECHR—the European Court of Human Rights (ECtHR)—has no jurisdiction over the interpretation of the Refugee Convention.
‘Jurisdiction’ means what kinds of questions a particular court can provide answers to. International courts like the ECtHR are created by particular treaties to provide legal answers to questions about the treaty that created them. In the case of the ECtHR, it was created by the ECHR in order to answer legal questions about the ECHR, and the ECHR only.
The ECtHR has no legal power—no jurisdiction—to answer questions about the interpretation of, or legal rights arising from, other international treaties. Because it is a different treaty to the ECHR, neither the meaning of the Refugee Convention, nor the question of who qualifies for asylum in the UK, can ever be determined by the ECtHR.
Therefore, there can be no such thing as an interpretation of the Refugee Convention’s protections which is “in line” with the ECHR rather than with the Refugee Convention, and therefore no ECHR mission creep that needs resolving by more statutory intervention in the definition of a refugee in UK law. This is fundamentally a policy statement in search of a problem.
The influence of the ECHR
The Refugee Convention itself provides limited definition of many of its important terms and international human rights law (including the ECHR) is often used to help interpret the terms of the Refugee Convention. For example, section 31(2) of the Nationality and Borders Act 2022 defines persecution as being an act “sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right”. The ECtHR’s interpretation of human rights can therefore be influential in the development of what constitutes a “severe violation of a basic human rights”.
For example, in the case of Aydin v Turkey (1997) 25 EHRR 251 the ECtHR found for the first time that “the especially cruel act of rape to which she [Aydin] was subjected amounted to torture”. This case was influential in later getting courts to recognise rape and sexual violence as a form of persecution which the Refugee Convention protects people from. Indeed, s31(3)(a) of the Nationality and Borders Act 2022 gives as an example of persecution “an act of physical or mental violence, including an act of sexual violence”.
However, the ECtHR is only influential in interpretation of what human rights mean, but it is not controlling over UK court’s interpretation. As Full Fact says: “More recently, the Supreme Court has emphasised that “take into account” doesn’t mean that it has to abide by a Strasbourg judgment. If it thinks the European Court of Human Rights is wrong there are lots of ways for the Supreme Court to justify making its own decision. But the general rule is still that the Strasbourg interpretation of the Convention will be followed.”
Humanitarian Protection
Sunak may be confusing the Refugee Convention with other forms of human rights protection which are derived from the ECHR, which prevent the government from removing someone from the UK where they would face harm as a result. Since 1989, the ECtHR has found that a government will breach the human rights of an individual if it deports or removes them when their human rights will be violated in that other country (Soering v United Kingdom (1989) 11 EHRR 439). However, someone who is covered by this form of human rights protection does not receive “Refugee Status”, is not a “Refugee”, and is not protected by the Refugee Convention. In fact, they have fewer legal rights in the UK as a consequence (they are granted shorter periods of leave to remain, cannot automatically reunite with spouses or children, and have to wait longer for indefinite leave to remain or the opportunity to apply for citizenship).
Someone may require this form of secondary protection because the Refugee Convention only protects people when they are at risk of harm “for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. This does not cover everyone who is at risk of human rights abuses by governments worldwide: what is called a ‘protection gap’. The ECHR steps in to provide protection to people who are at risk of serious human rights abuses like torture, inhuman or degrading treatment (Article 3), or slavery (Article 4) but who are not covered by one of the Refugee Convention reasons.
Humanitarian protection necessarily spreads the net of protection wider than the Refugee Convention, but that is because the ECHR is operating as a back-stop to fill some of the protection gaps left by the wording of the Refugee Convention. But again, those covered by this form of human rights protection are not recognised as being refugees, so to talk about ‘bringing our test for [asylum] protection in line with the Refugee Convention rather than the ECHR’ is in legal terms, a nonsense.
Furthermore, the ECHR and Human Rights Act 1998 protections against removal if a person is at risk of torture, inhuman or degrading treatment (Article 3), or slavery (Article 4) are absolute rights. This means that individuals at risk of these kinds of human rights abuses cannot be removed from the UK to face these kinds of harms even if they have arrived in the UK illegally. There is no justification in human rights law which permits the government to remove someone to suffer serious human rights abuses abroad.
Whilst it might be reasonably said that the idea of Humanitarian Protection was inspired by ECtHR case law, the actual definition of who qualifies for Humanitarian Protection can be found in UK law (specifically Immigration Rules 339C and 339CA). This can be changed almost at will by the British government, although doing so may increase the chances of it being found in breach of its international legal obligations by the ECtHR.
The aborted Rwanda deportation flight
It is possible that Sunak is referring to the circumstances around which a June 2022 flight to remove asylum applicants from the UK to Rwanda was cancelled. The UK government’s policy is to remove to Rwanda asylum applicants who arrived in the UK irregularly. The rhetoric after this event was that “the ECHR is an obstacle” to the Rwanda policy (such as Telegraph: “Rwanda deportation flight blocked by European judges”).
The flight was cancelled after the ECtHR issued a “Rule 39 Interim Measure” (a form of temporary injunction). The Interim Measure states that one of the asylum applicants (an Iraqi man known as KN) could not be removed to Rwanda until UK courts had had a proper opportunity to consider some of the human rights concerns surrounding the removal of asylum applicants to Rwanda. The ECtHR decision stated that:
“The Court had regard to the concerns identified in the material before it, in particular by the United Nations High Commissioner for Refugees (UNHCR), that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”. In light of the resulting risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues.”
However, the Interim Measure is in no form an assessment that KN qualifies for asylum: it was not a refugee status determination. This is for the reasons given at the start of this post: the ECtHR has no jurisdiction to make such determinations.
The ECtHR did not prevent KN’s removal to Rwanda because they thought that he was a refugee: it was not within their power to do so. They did not even do so because they believed that there was in fact a real risk that his human rights under the ECHR would be breached by removing him to Rwanda. Instead, they required a temporary halt to KN’s removal so that he had a full and fair opportunity to argue that point before a British judge.
Why this matters
Sunak’s statement of his intended asylum policy, should he become PM, is fundamentally flawed to the point of being an actual legal nonsense. Whilst the contents of a Telegraph article are unlikely to be replicated word for word in any future legislation, the article appears to disclose a profound lack of understanding of the basis of refugee and human rights law. It is deeply concerning when a potential Prime Minister or his team appear to lack a basic grasp of the law that they are seeking to change.
Other than bare ignorance, an alternative reading of Sunak’s policy statement is that it is an intentional move to create legally illiterate law or policy. In a recent constitutional law blog post, Tomlinson, Coakley, and Gambroudes argue that governments may seek to set a “trap” for the legal system:
“government consciously then makes decisions or adopts controversial policies at serious risk of being found to be unlawful, which provoke legal challenge. The inevitable judicial review challenge, from the government’s perspective, then creates a “win-win” scenario: it either wins in court, […] or the government loses in court and does not get to implement its policy but secures popular political advantage through vocal complaining about courts and lawyers “blocking” a government that is trying to implement “bold” policies.”
If Sunak’s statement were to be rendered into law, any respectable judge would have to come to the conclusion that there is nothing, or at least very little, of legal content there which can be acted upon. Because the ECtHR has no formal role in defining the content of the Refugee Convention, there are no ECtHR judgments that can be set aside by British courts in favour of a more “authentic” Refugee Convention interpretation. Because the legal definition of Humanitarian Protection is contained in the Immigration Rules—secondary legislation written by the British government itself—it is bound to apply the law as it is written.
This would set up the opportunity to claim that judges are “ignoring” the law and prompt more draconian action for both migrants and the courts, much like what happened in the lead up to Theresa May’s introduction of changes to family life rights for migrants in the Immigration Act 2014.
Assessments as to whether these readings of Sunak’s Telegraph article are likely to be correct, and whether they speak to his competence or character, are left to the reader.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.