Joint Committee On Human Rights Appendices to the Minutes of Evidence

48.  Memorandum from the Refugee Legal Centre

  I write to place before the Joint Committee on Human Rights the Refugee Legal Centre's reasons for supporting the proposal that a Human Rights Commission be established.

  1.  The Refugee Legal Centre (RLC) provides advice and representation for individuals seeking asylum and those fleeing human rights abuses. Since the incorporation of the Human Rights Act into domestic law on 2 October 2000, individuals have had a right of appeal[67] against their removal on the basis that their human rights would be breached.

  2.  The RLC is concerned that, in the recent past, a number of its clients have been denied access to their human rights appeal rights in that they have been removed from the UK without being afforded a meaningful opportunity to raise objections on human rights grounds nor invoke their section 65 appeal rights. These removals may therefore have been in breach of the European Convention on Human Rights. This practice has been the subject of a recent letter of complaint by the RLC and the Immigration Law Practitioners Association (ILPA) to the President of the Immigration Appeals Tribunal. In practice, it has been difficult to challenge Home Office procedures as, once removed, individuals are often not contactable and thus beyond the reach of the UK courts. It is our view that a Human Rights Commission would be invaluable in promoting good practice and due observance by the Home Office of the human rights protection mechanisms which now exist, such as those provided for in section 65 appeals.

  3.  An additional concern of the RLC has been the quality of the initial decision-making by Home Office officials, in that decision-makers have refused applications for leave to remain in the UK on bases which appear to disregard established Strasbourg principles. For example, it is the Home Office's stated view that only Article 3 of the European Convention on Human Rights has any extra-territorial applicability and this argument has been used as justification for rejecting applications to remain on human rights grounds. This position has not been explained by any reference to existing Strasbourg jurisprudence. In a recent appeal[68], the Immigration Appeals Tribunal considered the scope of Article 8 and robustly rejected the Home Office's argument that it had no extra-territorial effect, noting that their position was "plainly contrary" both to Strasbourg and UK case law. A Commission would be in a position to provide bodies such as the Home Office with independent and expert advice on points of principle, thus lessening the need for litigation as a means of establishing a correct interpretation for new or difficult issues.

  4.  The RLC also considers that a Human Rights Commission could fulfil an important mediatory and supervisory function vis-a"-vis the Home Office, helping to ensure that new immigration and asylum legislation is substantively compatible with the European Convention on Human Rights, thus avoiding the need to involve the courts in determining questions of compatibility. Where, however, declarations of incompatibility are made, the Commission would be ideally placed to intervene and obviate the need for individuals to petition Strasbourg as a means of obtaining a remedy.

  5.  It is, therefore, the RLC's unequivocal view that a Human Rights Commission could play a vital role in helping to ensure that:

    —  those seeking protection from human rights abuses have effective access to the appeal rights provided for by the 1999 Immigration and Asylum Act and the Human Rights Act;

    —  initial decision-making within the Home Office on human rights applications is consistent with, and has due regard for, established human rights principles;

    —  bodies such as the Home Office are able to seek guidance (other than from the courts) on issues of principle and approach;

    —  future immigration and asylum legislation is drafted with substantive ECHR requirements in mind;

    —  situations of incompatibility can be dealt with domestically without the need to have recourse to Strasbourg.

  I am grateful to the Committee for this opportunity to put forward our concerns and thank them for their consideration.

29 June 2001

67   Section 65 of the 1999 Immigration and Asylum Act 1999 provides that; "A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision . . ." Back

68   Nhundu; 1 June 2001 (01/TH/0613). Back

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