What You Need To Know About Proposed Human Rights Act Repeal

Last week it was reported that David Cameron has ruled out withdrawing from the European Convention on Human Rights (ECHR) despite objections from Michael Gove, the Justice Secretary, and Theresa May, the Home Secretary. This move has been seen as the first major split in the Conservative Government since the election, as both Mr Gove and Ms May believe that withdrawal from the ECHR is the only way to allow British courts to ‘re-establish supremacy’ over the European Court of Human Rights.

In this article we will outline all you need to know about the proposed repeal of the Human Rights Act 1998, the protection it currently gives to Immigration applications and appeals for migrants both inside and outside the European Economic Area (EEA) and the potential threat to these protections the proposed reforms to the Human Rights Act proposes.

What is the ECHR?

The ECHR is an international treaty, designed to protect Human Rights and freedoms. It predates the formation of the European Union by 40 years; rather, it was a product of the aftermath of the atrocities occurring before, during and after the Second World War. The initiative was led by Britain and the Conservative MP Sir David Maxwell-Fyfe chaired the committee that drafted the convention.

All European countries (except Belarus – Europe’s last military dictatorship) have ratified the ECHR. Included are countries on Europe’s periphery such as Turkey and Russia. You do not need to be a member of the European Union to sign the convention.

An application under Human Rights, can contain any of the seventeen key articles relating to rights and freedoms that all signatory states must protect.
These include:

• Article 2 - the right to life;

• Article 3 - prohibition of torture;

• Article 4 - the prohibition of slavery and forced labour;

• Article 5 - the right to liberty and security;

• Article 6 - the right to a fair trial;

• Article 7 - no punishment without law;

• Article 8 - the right to respect for private and family life;

• Article 9 - freedom of thought, conscience and religion and

• Article 10 - freedom of expression.

To apply for leave to remain, settlement or to challenge a decision by appeal on Human Rights grounds, your application will be one that is outside of the Immigration rules and may succeed if one of the following conditions are met by the applicant:

• The applicant must have resided continuously in the UK for at least 20 years; or

• The applicant must be under the age of 18 years of age and have resided continuously in the UK for at least seven years; or

• The applicant must be aged 18 years or above but under 25 years and have spent at least half of their life residing continuously in the UK; or

• The applicant must be aged 18 years or above and have resided continuously in the UK for less than 20 years and have no social, cultural or family ties with their country of origin.

There are also two main articles in the Human Rights Act 1998 that can assist with Immigration application and appeals on grounds of Human Rights. These are:

• Article 3 which prohibits the use of torture. Therefore, if a person believes they will be subject to torture or punishment if they are deported to their home country then they can appeal the deportation on this ground

• Article 8 protects the right to private and family life. If an application is declined and it results in the applicant or a member of their family being separated or deported to a country where they have no support or ties, then they may well have grounds for an appeal under Article 8.

How Does the UK Human Rights Act 1998 link with the ECHR?

The Human Rights Act 1998 was one of the major pieces of legislation passed by Tony Blair’s Labour Government. It came into force in October 2000 and had the effect of codifying the Articles contained in the ECHR into UK law. In practice t the judiciary must read and interpret legislation in accordance with the rights set out in the ECHR and all UK public bodies must adhere to the rights when carrying out their duties. This of course includes the Home Office, which manages Immigration in the UK.

What is the Role of the European Court of Human Rights?

Based in Strasbourg, The European Court of Human Rights is an international court which was set up in 1959 and implements the ECHR. Around 800 million Europeans in the 47 Council of Europe member states that have ratified the Convention are protected by the court. The court has made many controversial rulings including:

• Ruling that disallowing the voting rights of prisoners is unlawful and a breach of their Human Rights (this ruling has yet to be implemented and David Cameron has been quoted as saying the decision made him feel “physically ill”

• Blocking the deportation of radical cleric Abu Qatada to Jordan, because of fears that evidence obtained under torture would be used against him in his home country.

• Stating that a whole-life prison sentence breached Article 3 of the Convention, which prohibits torture.

The European Court of Human Rights has been called “the conscience of Europe”, and remains a beacon of hope for many individuals, especially migrants fighting to remain in one of the EU member states. It is interesting to note that over 90 per cent of applications to the court are declared inadmissible because applicants have failed to exhaust all domestic remedies, or their case is considered unfounded. In 2012, less than 3 per cent of applications from Britain were considered admissible and of those, just half succeed. That year the court dealt with 955 applications from the UK, of which only 19 were considered admissible, and only eight were ruled a violation of the convention.

Why Does the Conservative Party Want To Scrap The Human Rights Act and Replace it with the British Bill of Rights?

Many members of the Conservative Party and the right-leaning media have long been critical of the European Court of Human Rights and its decisions. Mr Cameron’s aim in repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights (whilst still being part of the ECHR) is to make it more difficult to bring a case to the European Court of Human Rights, thereby ensuring that in most cases, the UK Supreme Court is the final court of appeal on Human Rights matters in Britain.

The other main goal of the British Bill of Rights is to:

“...stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious Human Rights arguments to prevent deportation.”

This particular objective is obviously in response to the rather humiliating situation both the Labour Party and the Conservatives found themselves in when, despite all their blustering, found they could not deport the radical Muslim cleric Abu Qatada for over ten years.

However, critics of the British Bill of Rights state, quite correctly, that now that the government has confirmed that Britain will stay part of the ECHR, there is nothing stopping the a rerun of an Abu Qatada like saga in the future, because the road to the European Court of Human Rights will remain open.

Are There any Other Criticisms of the Proposed Changes?

There are many critics of the proposed changes to Human Rights legislation in the UK. Arguments in favour of maintaining the Human Rights Act 1998 include:

• Supporters of the Human Rights Act say many cases have involved victims challenging governments for failing to protect them. Having a system of rights protected by a higher authority (such as the European Court of Human Rights) means countries cannot pick and choose on a whim which rights they wish to protect.

• Some argue that deporting terrorists works against the UK’s national security interests. Amnesty International argues it is safer to prosecute in the UK, and if found guilty, to imprison the individual here. Although Abu Qatada was finally deported to Jordan in 2013, he was found not guilty of terrorism charges relating to an alleged 1998 plot and cleared of being involved in a 2000 plot last year.

• In most cases, the Human Rights Act 1998 does not prevent the deportation of people who threaten the UK's national security. It simply prevents the government from deporting them to countries where the individual will likely face torture or inhuman treatment.

• Scrapping the Human Rights Act could reduce the UK's authority to speak out about Human Rights abuses elsewhere.

• Contrary to popular myth, the UK is not bound to follow judgements of the European Court of Justice; it only has to take its decision into account. Supporters of the Human Rights Act 1998 argue that repealing the Act would deny Strasburg judges the opportunity to consider Britain’s interpretation of the ECHR.

Whilst it is clear that David Cameron wants to restrict Immigration both from inside and outside the EEA, it is important to remember that:

1. The ECHR and the European Court of Human Rights both pre-date the EU and are completely separate issues for the government. Mr Cameron’s commitment to holding an in-out referendum and re-negotiate Britain’s relationship with the EU will not affect this countries responsibilities under the ECHR

2. Any repeal of the Human Rights Act 1998 has been removed from the political agenda for the time being, and the consultation process to begin in September could take years to complete

3. Whilst any EU renegotiation is almost guaranteed to include a restriction on EEA migrants, individuals can still claim Asylum to stay in the UK as refugees if they meet certain requirements. At the time of writing, there have been no announcements that these rules are to change.

With so much opposition to the proposed scrapping of the Human Rights Act 1998 (including the now powerful SNP Party) it is unlikely that Michael Gove and Teresa May have an easy road ahead to garner support for the British Bill of Rights. It remains to be seen if the plan comes to fruition, or is resigned to political oblivion.

To find out more about UK Human Rights and how they affect immigrations Human Rights application, EEA Applications, Settlement or appeals, please phone our London immigration solicitors on 0207 936 9960 to speak to one of our UK based Immigration Solicitors.