Response to the consultation on reform of the Human Rights Act

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Introduction

  1. The Joint Council for the Welfare of Immigrants (JCWI) is an independent charity established in 1967. Our mission is to promote justice, fairness and equality in British immigration and asylum law and policy. We do this through a combination of policy research and advocacy, and legal casework and strategic litigation relating to all areas of immigration and asylum rights.

  2. Through our work we are required to have extensive experience in the operation of the Human Rights Act (HRA). The responses given below are directly informed by this experience and expertise. Accordingly, we have limited our responses to questions that are most relevant to the work we undertake. JCWI provides no response to questions that fall outside the direct remit of our work.

  3. Before addressing the specific questions below, it is important to make some general points about the consultation, and the context in which it is being held. JCWI’s starting position is that the premise underlying this exercise is flawed. The consultation papers, while asking a great number of technical and detailed questions, fail to ask the first and most important one. Do we need to replace the HRA with a new Bill of Rights? In JCWI’s view, the answer is no. For over two decades the HRA has been a useful mechanism, enabling people in this country to enforce their most fundamental rights in the domestic courts, without having to take cases to the European Court of Human Rights (ECtHR). The consultation papers do not provide an evidenced case for its overhaul. Furthermore, while the papers insist that the UK will maintain its obligations under the European Court, JCWI is concerned that many of the proposals contained in the exercise would create significant divergence from those international human rights standards.

  4. The proposals dealt with in this consultation are purported to be based on the conclusions of the Independent Human Rights Act Review (IHRAR), an expert commission led by a former Court of Appeal Judge. However, the consultation bears little to no relation to the findings of the IHRAR, relying instead on a case that is weakly evidenced, cherry-picked and in some cases misleading. This applies in particular to the consultation’s questions on the judicial approach to proportionality in Article 8 deportation cases. Here, the very significant changes made in the Immigration Act 2014 have not been clearly taken into account in the evidence setting out the case for reform. Case studies employed in the document are also presented in a partial and slanted manner. This falls below the standard that we should expect from a Ministry of Justice consultation.

  5. Taken as a whole, the proposals in the consultation would serve to systematically weaken human rights protections in the British justice system. They would weaken access to justice, reduce the accountability of public bodies and put the UK’s reputation at risk for breaching its obligations under international law, despite the stated intention to respect these responsibilities.

  6. It is important to consider the wider legislative context in which this consultation is being held. Most notably for JCWI, it is taking place as the Nationality and Borders Bill (NABB) is passing through parliament. We are deeply concerned that the impacts of the NABB, which will vastly increase the number of migrants subject to criminal charges and long prison sentences, could interact with proposals contained in this consultation to effectively exclude significant swathes of the population from protection of their fundamental rights. A significant number of eminent members of the legal profession, including members of the House of Lords[1] and the UN,[2] have shared detailed opinions explaining how the Nationality and Borders Bill breaches the UK’s international human rights obligations in multiple ways. Under the circumstances that such a Bill is currently on path to becoming law, the proposals contained in this consultation become much more dangerous, as they will reduce the ability of victims to acquire redress for any rights violations.

  7. Finally, it must be noted that the process of this consultation itself is flawed and has not provided adequate access for people with disabilities to respond. This is unacceptable by any standard, but given that people with disabilities are one of the key groups that will be impacted by changes to our Human Rights framework, must be remedied as a matter of urgency. JCWI has joined Liberty and other civil society groups to express these concerns in a letter to the Justice Secretary.[3]

 

Substantive responses to relevant consultation questions

Question 8: Do you consider that a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.

  1. JCWI opposes this proposal, which is unnecessary and would introduce a significant and unjustified additional barrier to access to justice. The most severe impact would fall on the most vulnerable applicants, including litigants in person and those with protected characteristics.

  2. No definition of what would constitute a ‘significant disadvantage’ is put forward in the consultation papers. This will create confusion and prompt litigation in order to establish clarity, and goes directly in opposition to the aims of improved and more efficient use of judicial resources. Any violation of a person’s human rights is a serious matter for which they must be able to obtain redress. Therefore, the need to prove ‘significant disadvantage’ is unnecessary and will hamper the aims of this consultation. The papers do not present a convincing case that courts are currently unable to focus on ‘genuine human rights matters’ due to ‘insignificant’ claims being heard instead.

  3. There is already a mandatory permission stage for Judicial Review applications that effectively filters out any cases that do not have strong grounds. In human rights cases, there also exists a particularly high threshold for bringing a case, where only a person who can demonstrate that they have been a victim may pursue redress. In JCWI’s experience this is an effective filter that already prevents individuals bringing unmeritorious cases.

  4. The British courts currently have power to strike out cases which have no reasonable prospect of success or are spurious or abusive. There is no evidence that this system does not work. This proposal would enact new barriers to justice for claimants, while significantly increasing cost and delays for the courts by introducing an unnecessary new stage of proceedings. This is counter to the stated aims of the consultation and would be a waste of time and resources.

Question 9: Should the permission stage include an ‘overriding public importance’ second limb for exceptional cases that fail to meet the ‘significant disadvantage’ threshold, but where there is a highly compelling reason for the case to be heard nonetheless? Please provide reasons.

  1. As explained above, JCWI rejects the need for an additional permission stage at all, which would negate the need for this safeguard to be introduced. However, in a context where the ‘significant disadvantage’ test were to be introduced, we would support the inclusion of a second limb to ensure that exceptional cases could still be brought, even where they do not reach that threshold.

  2. However, the test of an ‘overriding public importance’ sets the bar too high, especially as it applies to an area of law specifically designed to protect individual and minority rights. As such, this may have little bearing on the public at large but significant merit nonetheless. A more appropriate test would be that of a ‘reasonable prospect of success’, but as described above, this is already the standard applied.

Question 10: How else could the government best ensure that the courts can focus on genuine human rights abuses?

  1. As in our answers to questions 8 and 9, we reject the premise that the courts are currently unable to focus on ‘genuine human rights abuses’ in the absence of any evidence of cases being brought and heard that are not ‘genuine’ or ‘significant’. The consultation papers do not provide a single example of a successful case where a rights violation was too trivial and ought not to have been heard.

  2. Further, there is no evidence, either in the consultation documents or JCWI’s experience, of human rights claims being used as a ‘fall-back’ where alternative approaches would be more suitable. Safeguards against ‘double recovery’ already exist, thus prescribing that claimants ought to prioritise non-human rights grounds is unnecessary and will produce inefficiencies. The courts system has significant experience in allocating resources efficiently to hear different aspects of a claim. Altering this in order to mandate that non-human rights matters be exhausted first would create confusion and delays.

  3. JCWI believes that it is desirable to reduce the number of human rights claims that are brought to court, but this should not be achieved by limiting domestic remedies for those who have suffered a violation of their rights. Instead, better and more evidence-based decision making by the executive at earlier stages would decrease the necessity for people to rely on the courts to enforce their rights. In the context of asylum and immigration decision making, there is a wealth of research available that provides mechanisms through-which decisions could be improved in the first instance.[4]

Question 23: To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act?
We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this? Please provide reasons.

Option 1. Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed ‘necessary’.

Option 2. Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purpose of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.

We would welcome your views on the above options, and the draft clauses after paragraph 10 of Appendix 2.

  1. The consultation document provides a weak and in places misleading case for the need to further codify judicial deference when balancing qualified and limited rights. It disregards the IHRAR’s findings that the courts take a careful approach and operate in line with the principle of judicial deference. In cases regarding the deportation of foreign nationals, the independence of judicial proportionality assessments has already been removed by the Immigration Act 2014, which embedded in legislation the view that deportation is in the public interest. Given this, it is only in truly exceptional cases that it is currently possible to challenge deportation on Article 8 grounds.

  2. Alongside this statutory guidance, there is significant judicial guidance available that is well understood by the immigration and asylum courts at all levels. This guidance already makes clear that legislation pertinent to a proportionality assessment must be given great weight, as it expresses the will of parliament. The introduction of new guidance is therefore unnecessary and is likely to cause confusion and require the need for further litigation.

  3. The principle of proportionality is a finely balanced issue in which constitutional balance requires the separation of powers to ensure judicial oversight of executive decisions. This balance must be maintained as it is always case-specific, taking into account the impacts that will be relevant to a decision on proportionality, both on the individual claimant and on wider society,. In terms of the relationship between the courts’ assessments of proportionality and parliamentary sovereignty, IHRAR concluded that “[t]he UK Courts have, over the first twenty years of the HRA, developed and applied an approach that is principled and demonstrates proper consideration of their role and those of Parliament and the Government.”[5] 

  4. The consultation papers refer to the case of Quila[6] to justify the assertion that it is necessary to further codify the courts’ approach to proportionality. This was a successful Article 8 case that JCWI acted in, in 2011, where the Supreme Court found that the blanket policy of refusing to issue spouse visas to applicants between the ages of 18-21 was a disproportionate measure to tackle forced marriage that amounted to a violation of applicants’ right to family life.

  5. As an example of the imbalanced presentation of evidence that is relied upon in the consultation papers, the paper quotes only from the dissenting opinion provided by one judge on a panel of five, which included Lord Philips, the president of the Supreme Court. The judgment rested on the fact that the Home Secretary had not considered the adverse consequences of the measure, thus deeming it proportionate for the courts to intervene, as it was not possible to defer to the judgment of the executive in cases where the executive has not made a judgment on the issue.

  6. Moreover, given that it was concerned with examining a decision of the executive and not of parliament, it is unclear how this case is a relevant example in a discussion of the importance of judicial deference to decisions of parliament. Therefore, we can find no convincing case for the proposed changes to the current procedure on the basis of this evidence.

Question 24: How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options below do you believe would be the best way to achieve this objective? Please provide reasons.

Option 1. Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment.

Option 2. Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights.

Option 3. Provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.

  1. JCWI strongly rejects the premise of this question which implies that deportations that are in the public interest are frustrated by human rights claims. Deportations that would breach human rights obligations are squarely not in the public interest.

  2. There are already strong safeguards against abusive claims in the immigration courts, including the power to certify a claim as one that could or should have been made earlier (s.95 NIAA 2002), to certify a claim as clearly unfounded (s.94 NIAA 2002), or to remove a person from the UK while their appeal is still pending (s.94B NIAA 2002). The Nationality and Borders Bill, if it becomes law, will further restrict the circumstances in which an appeal against deportation can be made.

 

  1. Meanwhile, there is no evidence that the protections afforded by the right to liberty and security (Article 5), the right to a fair trial (Article 6), and the right to respect for private and family life (Article 8) are responsible for ‘new and expanding human rights claims’ that frustrate deportations. These rights are fundamentally important, and their protection is paramount in a democratic society.

 

  1. As a Freedom of Information (FOI) response to BID from the Home Office dated 14 December 2021 shows, there are now far fewer appeals lodged on human rights grounds (and still far fewer allowed) in the deportation context than the figures cited in the Consultation Paper might appear to suggest. In 2019, for example, 1548 deportation orders were served on non-EEA nationals, of whom 460 (29%) appealed; of those appeals, only 92 were allowed. In 2020, the figures were even more stark: of the 809 deportation orders served, only 124 (15%) had brought appeals18.

  2. As in our answer to question 23, we note that the case laid out in the consultation document fails to adequately consider the significant changes implemented in the Immigration Act 2014 that limit the application of Article 8 defence against deportation to all but the most exceptional circumstances. The paper sets out a misleading impression of these exceptional cases by selectively quoting partial sections of the judgments in cases that have successfully argued this point.

  3. Where a person is able to show that the public interest is not in favour of their deportation using Article 8 grounds, this is usually because the impact of their deportation must be considered in the round, taking into account not only the impact on the person subject to deportation, but on their children and family members who may well be British citizens. There is a wider social impact of splitting up families that must also be considered on a case-by-case basis. This often includes the cost produced in cases where the deportation (often of a father) results in the need for children to be taken into care, or for families to rely on the support of social workers.

  4. These factors are not currently, and should not be altered by arbitrary grounds, such as the length of time a person has been sentenced to. Thus, any cut-off of access to certain rights based on factors like this would inevitably fail to consider the wider public interest in a balanced way. Even more importantly, the proposal to exclude people from being able to access certain rights based on certain behaviours is contrary to the very principle of human rights protections and would consequently be unjust and discriminatory. Linking this denial of rights to length of prison sentence would also have a discriminatory and disproportionate impact on black, Asian and minority ethnic defendants who already receive longer sentences for the same crimes as their white counterparts.[7]

  5. As raised in the introduction, JCWI is also extremely concerned that the proposal to introduce a ‘cut-off point’ for denying people rights would interact with new provisions currently passing through parliament in the Nationality and Borders Bill. Under the provisions of the Bill, anybody who remains in the UK beyond the terms of their visa could be liable to a criminal sentence and face up to four years in prison. This would potentially see them considered serious offenders who have served long enough sentences to preclude them from the protection of their Article 8 rights.

  6. This is plainly unjust. As JCWI’s research shows,[8] the vast majority of people who overstay a visa have no meaningful links whatsoever to criminality. Instead, they are a group of men, women and children of all ages including long-term residents of the UK with close family ties and people who have lived here since they were young children. Generally, people overstay their visa because they are unable to afford the renewal fees or they experience some form of crisis, whether in health, family or other, which means that they are unable to complete an application in time. It is plainly disproportionate and contrary to the public interest to criminalise such people and it would further compound this injustice to then deny them the possibility to defend their Article 8 rights on the basis of that criminalisation.

  7. Below we include two case studies from JCWI’s work with people who have challenged their deportation on Article 8 grounds, that illustrate the exceptional circumstances that must be demonstrated in order to overturn the public interest test in such cases. It is JCWI’s firm opinion, based on these and countless other examples in our experience, that it is already extremely difficult to avoid deportation by relying on family and private life protections and it would be wholly inappropriate and unnecessary to increase the burden on individuals such as these.

Case Study: U

U came to the UK from Nigeria in 1998 and had three children born in the UK who are British citizens. U’s eldest child was diagnosed shortly after birth with a rare congenital heart defect and underwent multiple open-heart surgeries.

In 2009, U and his partner were convicted of offences related to the falsification of applications of leave to remain in the UK. U was sentenced to five years and six months in prison and his partner to 18 months. Following his prison sentence, U and his partner and children were served with a deportation order. It was held that his eldest child could voluntarily relocate with his parents to Nigeria in order to maintain his family life and that he would be able to avail himself of treatment for his heart condition there.

On appeal, it was found that it would be unduly harsh to force U’s child, a British citizen, to relocate to Nigeria, so U’s children and partner’s deportations were halted. However, it was found that there were no compelling reasons that override the public interest for U himself to be allowed to remain in the UK with his family. He was deported to Nigeria.

U appealed from Nigeria to the ECtHR, where it was found that not only the length of a sentence, but the nature of the circumstances of the offence and its impact on society as a whole ought to be taken into consideration. The court concluded that the offences were not harmful enough to outweigh the consideration of the best interests of the child, and so U’s deportation had violated his child’s Article 8 rights.

Tragically, U passed away in Nigeria shortly after the court’s decision was issued, before he was able to be reunited with his family in the UK.

Case Study: S

S was brought to the UK from Jamaica at the age of four years old. S completed his schooling in the UK, but did not register as a British citizen as he would have been entitled to after ten years because the fees were too high and his family could not afford it. He lived with his mother and assisted her as a carer for his younger siblings.

In 2018, S was convicted of possession with intent to supply cannabis. He was sentenced to 15 months in prison and subsequently to be deported to Jamaica. The First Tier Tribunal (FTT) judge dismissed the challenge to automatic deportation saying, “the fact that the appellant is socially integrated in the UK is not a factor which by itself can be put forward as a compelling circumstance” to override the public interest in his deportation.

S appealed against the FTT decision, arguing that his relationship as a carer for his younger siblings had not been sufficiently taken into account. It was noted that while S was in prison, his younger brother, with whom he had a relationship more akin to that of a father and son, had suffered. The younger sibling had exhibited behavioural problems, which were resolved when S returned to the family home. It was established that S’s mother’s mental health had also suffered as a result of being separated from S and that she would be unable to care on her own for his younger siblings without his support. Evidence was further presented about the efforts at rehabilitation that S had made, including ending the misuse of cannabis and the conclusion that he was at low risk of reoffending.

On this basis, taking into account the best interests of S’s siblings who were children, the fact that he had lived almost his entire life in the UK, and the low-level nature of the offences he had committed, S’s deportation order was successfully overturned. 

Question 25: While respecting our international obligations, how could we more effectively address, at both domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration?

  1. This question contains a logical inconsistency as it frames the international obligations that we are duty-bound to respect as impediments to tackling irregular migration. JCWI does not recognise the prohibition on refoulement and other fundamental human rights protections as impediments to the good governance of migration in the UK. Rather, these protections underpin the necessary rights for the operation of a fair and democratic immigration system. Insofar as the Government has declared its commitment to remaining a signatory to the ECHR, we are concerned that the proposals in the consultation will result in a divergence in protections at the domestic level and at Strasbourg, which in turn may lead to more adverse findings against the UK.

  2. It must be noted again, that under the provisions of the Nationality and Borders Bill, extreme measures are under consideration that would, if enacted, violate international legal obligations, including the interception of asylum seeker vessels at sea, which is plainly contrary to the law of the sea.[9] Under such circumstances a renewed commitment to international law is of the utmost importance. Instead, this question runs in opposition to this, hinting at a risk that such laws, where characterised as ‘impediments’, may not be respected in the UK. This must be avoided.

  3. The reason that refugees are protected from being treated as irregular or illegal immigrants under the Refugee Convention is that it is increasingly often impossible for them to reach a country of sanctuary through regular means. This is caused by the UK’s restrictive visa policies, in particular regarding refugee-producing countries.

  4. The government has at its disposal a wide body of research that proposes rights-based approaches to migration management that would enable it to reduce the need for asylum seekers to make irregular journeys to the UK and to reduce the number of people who live in the UK without an official immigration status. These would include evidence-based measures such as providing safe routes to enter the UK for the purpose of seeking asylum,[10] reducing the length of time before migrants are able to obtain permanent settlement, and better, more accessible routes to regularisation for those who lose their status.

  5. In reality, the growing estimated undocumented population in the UK and the falling number of removals that has been observed over recent years are not due to ‘impediments’ created by human rights law. Rather, evidence suggests that these conditions are due to the Home Office having effectively attempted to outsource the enforcement of immigration rules to untrained and inappropriate parts of society via its ‘Hostile Environment’ policies. These policies are intended to prompt people who do not have a formal immigration status to leave the country of their own accord by making it difficult for them to access vital services such as the right to rent property, work, obtain a drivers’ licence or bank account or access the NHS. There is no evidence that this approach has been effective,[11] but there is very significant evidence that it produces negative outcomes in our society, including racist discrimination,[12] and that it was at the root cause of the Windrush scandal.[13]

  6. In order to more effectively address the challenges posed by irregular migration while respecting our international human rights obligations, the government should consider reversing its ‘Hostile Environment’ policies and implementing an evidence-based approach to migration management aimed at harm reduction.

Question 29: We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular:

a. What do you consider to be the likely costs and benefits of the proposed Bill of Rights? Please give reasons and supply evidence as appropriate;

b. What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform? Please give reasons and supply evidence as appropriate; and

c. How might any negative impacts be mitigated? Please give reasons and supply evidence as appropriate.

  1. It is regrettable that the Ministry of Justice has failed to undertake and publish a thorough Equalities Impact Assessment of the proposals contained in the consultation papers for respondents to consider. It is highly inappropriate to instead attempt to outsource an evaluation of the equalities impacts of the proposed measures to respondents through this question. The consultation document itself dedicates less than two pages to consideration of the potential impact of its proposals on people with protected characteristics. This is plainly insufficient. It is the government, and not the academic or civil society representatives likely to respond to this consultation, who have the resources and access to the appropriate data in order to undertake this exercise.

  2. Every point to which JCWI has provided a response in this document will have a more severe impact on people with protected characteristics who already experience significant additional barriers to obtaining support and representation. In JCWI’s estimation there is a serious risk that the proposals will produce both direct and indirect discrimination creating a disproportionate impact on black and minority ethnic people and people who experience mental health difficulties severe enough as to constitute a disability.[14]

  3. The most obvious way to mitigate these negative impacts would be to abandon the proposal to replace the HRA with a Bill of Rights. The exercise, as has been discussed throughout this response, is unnecessary and will result in a significant reduction in access to justice, matched by an increase in litigation to clarify poorly defined concepts outlined here and a reduction in efficient use of judicial time and resources.

For more information please contact:

Zoe Gardner
Policy & Advocacy Manager, JCWI

End notes

[1] Hansard, House of Lords, February 2022, https://hansard.parliament.uk/Lords/2022-02-01/debates/27B38534-29F7-4BAB-A06F-3D76133377EE/NationalityAndBordersBill

[2] UNHCR Legal Opinion on the Nationality and Borders Bill, October 2021, https://www.unhcr.org/publications/legal/615ff04d4/unhcr-legal-observations-nationality-and-borders-bill-oct-2021.html

[3] Liberty, March 2022, https://www.libertyhumanrights.org.uk/issue/disabled-people-excluded-from-human-rights-review-mps-and-campaigners-warn/

[4] Freedom from Torture, September 2019, Lessons Not Learned, https://www.freedomfromtorture.org/sites/default/files/2019-09/FFT_LessonsNotLearned_Report_A4_FINAL_LOWRES_1.pdf

[5] IHRAR [3.2].

[6] Quila v SSHD, 2011, UKSC 45, https://www.supremecourt.uk/cases/docs/uksc-2011-0022-judgment.pdf

[7] Ministry of Justice Analytical Services, 2015, Analysis of ethnicity and custodial sentences, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/479874/analysis-of-ethnicity-and-custodial-sentences.pdf

[8] JCWI, April 2021, We Are Here: Routes to regularisation for the UK’s undocumented population https://www.jcwi.org.uk/we-are-here-routes-to-regularisation-for-the-uks-undocumented-population

[9] Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill (part 3), November 2021, https://committees.parliament.uk/publications/8021/documents/83303/default/

[10] JCWI, August 2020, Briefing: Safe Routes to the UK, https://www.jcwi.org.uk/briefing-safe-routes-to-the-uk

[11] National Audit Office, June 2020, Immigration Enforcement, https://www.nao.org.uk/report/immigration-enforcement/

[12] JCWI, Passports Please, February 2017, https://www.jcwi.org.uk/passport-please

[13] Wendy Williams, Windrush Lessons Learned Review, July 2018, https://www.gov.uk/government/publications/windrush-lessons-learned-review

[14] JCWI, Evidence to Women & Equalities Committee on Fairness in Asylum Procedures, November 2021, https://www.jcwi.org.uk/submission-to-the-women-and-equalities-committee-inquiry-into-the-uk-asylum-process-for-people-with-protected-characteristics

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