International Framework

Asylum is a fundamental right, and granting asylum is an international obligation which was first recognised in the 1951 Refugee Convention on the protection of refugees. Two pieces of international law define who is considered a ‘refugee’ and outline the rights of displaced people and the legal obligations of states to protect and support them. These can be used to support an asylum application in the UK and are:

● The 1951 Refugee Convention, and the 1967 Protocol which expanded the scope of protection offered by the 1951 Convention

● The European Convention on Human Rights (ECHR)

Retained European Union law can also be used to support an asylum application in the UK.

The 1951 Refugee Convention

Article 1 of the 1951 Refugee Convention defines a refugee as someone who:

“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country”[1]

The UNHCR explains that:

“The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.”[2]

The asylum process is determined by future risk. This means that no matter how badly an asylum applicant has been treated in their country of origin before they arrived in the UK, if there is a way for them to return and live in safety somewhere in their country of origin, then they may be refused refugee status. This applies even if they have to relocate within that country. However, the fact that they have been persecuted previously is usually considered a good indication that they would be persecuted in the future unless there are good reasons to the contrary.

In the UK, a person is recognised and referred to as a refugee only when their application for protection (their asylum claim) has been accepted by the Home Office or Court. An asylum seeker is the term for someone who has made an asylum claim but has not yet received a final decision in their case.

European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR)

The 1950 European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe. It contains a number of Articles setting out protected rights, such as Article 5 (the right to liberty and security) or Article 6 (the right to a fair trial).

The UK, as a member of the Council of Europe, is a party to the ECHR. It gave effect to the rights and freedoms in the ECHR through the Human Rights Act (HRA) 1998, which means that these protected rights can be invoked in our domestic courts. As a signatory to the ECHR, the UK has also agreed to take into account ECtHR judgments. ECtHR decisions cannot directly change UK law, but the UK government may be required to ask parliament to change the law in order to comply [3].

Key ECHR Articles from an asylum, immigration and detention perspective are:

• Article 3 Prohibition of torture - “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”

• Article 5 Right to liberty - "You have a right to your personal freedom. This means no one shall be detained or imprisoned without good reason."

• Article 8 Right to respect for family and private life - "Everyone has the right to respect for his private and family life, his home and his correspondence."

It is possible for a person to apply to remain in the UK if removing them to their country of origin would be in breach of their rights under the European Convention on Human Rights. This is known as a ‘human rights claim’. A human rights claim can be part of an asylum claim under the 1951 Refugee Convention, or a standalone claim. Most human rights claims in the UK invoke Article 3 (the prohibition of torture) or Article 8 (the right to respect for private and family life).

The Convention also established the European Court of Human Rights (ECtHR). A person who considers that a state party has failed to protect his or her rights under the Convention can make an application to the Court. There is now a body of case law by the European Court of Human Rights relating in particular to Articles 3, 5, 8 and 13 of the ECHR. Getting a case considered by the ECtHR generally requires that the claimant has exhausted all domestic remedies (all relevant courts and complaint procedures in the UK) and has suffered ‘significant disadvantage’. It is a complex process that may take years to conclude [4]. Some people detained bring cases to the ECtHR as litigants in person, and the process is designed to be accessible to people without the resources of a state, but a positive outcome is more likely with a legal team.

Example Legal Case

An example of an immigration detention related case brought before the European Court of Human Rights.

Abdi v United Kingdom (European Court of Human Rights, Application 2770/08, judgment 9 April 2013) in which the ECtHR considered the United Kingdom’s administrative detention of “foreign national offenders” for the purpose of deportation.

The ECtHR press release explains the case as follows:

“The case concerned a complaint by a Somali national that he was kept in detention for more than three years, pending his proposed deportation to his country of origin.

The Court found in particular that, where lawfulness of detention is in issue, the European Convention refers essentially to national law, laying down the obligation to conform to rules of national law. In Mr Abdi’s case, it held that his detention from 3 December 2004 to mid-April 2007 was not lawful under domestic law because the regular reviews required by the Secretary of State’s published policy on the detention of foreign national prisoners were not carried out. Indeed, the British Government had accepted the unlawfulness of Mr Abdi’s detention following the Supreme Court’s judgment in another similar case.

It also struck out Mr Abdi’s complaint under Article 3 (prohibition of inhuman and degrading treatment) that his removal to Somalia would put him at risk of ill treatment and therefore decided to lift its indication to the United Kingdom Government (made under Rule 39 of the Rules of Court – interim measures) that Mr Abdi should not be expelled until further notice.”

Available at http://bit.ly/2kPKme4

Future Watch

Any new proposals for the repeal of the Human Rights Act and a new British Bill of Rights of similar legislation.

Retained EU Law

The UK left the European Union on 31 January 2020 following the outcome of the 2016 EU referendum. The transition period, during which EU law continued to apply, ended at 11pm on 31 December 2020 (the ‘specified date’). The rules governing the new relationship between the EU and UK took effect on 1 January 2021. Whilst several parts of EU law have been repealed following the specified date, others have been “retained” through primary UK legislation.

The EU (Withdrawal Act) 2018 retained the Asylum Seekers (Reception Conditions) Regulations 2005, the Refugee or person in Need of International Protection (Qualification) Regulations 2006 and the Asylum (Procedures) Regulations 2007. The Nationality and Borders Act 2022 (s.30(4)) then repealed the Refugee or person in Need of International Protection (Qualification) Regulations 2006 but incorporated their substance into s.31-36 (these sections set out the key considerations when determining whether an applicant ought to qualify for asylum).

EU-law derived rights, obligations, restrictions, remedies and procedures can now only be relied upon if they are not inconsistent with or, otherwise capable of affecting the interpretation of, application or operation of the Immigration Acts (including the Immigration Rules).[5] The Directives may also only be relied on where certain rights were recognised by the European Court or any UK court or tribunal in the UK before the specified date.[2] The UK Court of Appeal and Supreme Court can now also depart from the case law of the Court of Justice of the European Union when interpreting retained EU Law.

The EU Charter of Fundamental Rights is also no longer part of UK law but fundamental rights and principles recognised in case law do form part of retained EU law.[6] The Dublin III Regulation (which allowed the transfer of people seeking asylum to the EU country responsible for considering and determining their asylum claim) has been repealed in its entirety. However, the government is attempting to transfer asylum seekers out of the UK for their asylum claims to be processed in line with the Nationality and Borders Act 2022 and The Illegal Migration Act 2023. At present, the plan to send asylum seekers to Rwanda has been deemed unlawful by the Supreme Court. The government is trying to push through the Rwanda Bill in order to legislate that Rwanda is a safe country. Other third countries could also be considered under these provisions, if the UK government is able to make an agreement with those countries.

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1. UNHCR, Convention and Protocol Relating to the Status of Refugees. Text of the 1951 Convention Relating to the Status of Refugees, Text of the 1967 Protocol Relating to the Status of Refugees Resolution 2198 (XXI) adopted by the United Nations General Assembly with an Introductory Note by the Office of the United Nations High Commissioner for Refugees. See Article 1 “Definition of the term “refugee”. Available at http://www.unhcr.org/uk/3b66c2aa10
2. UNHCR website, The 1951 Refugee Convention. Available at http://www.unhcr.org/uk/1951-refugee-convention.html
3. The Council of Europe oversees how the UK government gives effect to the rulings of the ECtHR. NB: The Council of Europe (47 members) is entirely separate from the European Union (28 members in 2016). https://fullfact.org/europe/eu-and-human-rights/
4. See ‘Protecting migrants under the European Convention on Human Rights and the European Social Charter: A handbook for legal practitioners’, (2013) Council of Europe. http://www.coe.int/t/democracy/migration/Source/migration/ProtectingMigrantsECHR_ESCWeb.pdf
5. Sch 1, para 6, Immigration and Social Security Coordination (EU Withdrawal) Act 2020

6. (s.4(2)(b), EU (Withdrawal Act) 2018)

7. s5(4) EU (Withdrawal Act) 2018)