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In SAG & Ors v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), the High Court considered challenges to the Secretary of State’s determination of applications to remove no recourse to public funds (“NRPF”) conditions placed on the Claimants’ leave to remain. Each Claimant’s position was that they were at imminent risk of destitution. Several grounds of challenge were advanced:
1. The approach to the NRPF conditions was unlawful under common law
2. The approach to the NRPF conditions was a breach of s.55 of the Borders, Citizenship and Immigration Act 2009.
3. The approach to the NRPF conditions was incompatible with the Human Rights Act 1998 read with Article 3 of the European Convention of Human Rights.
This article considers the third ground of challenge under the Human Rights Act 1998.
The ECHR’s Additional Protocols 4, 7 and 12 have never been ratified by the UK and are not included in the schedule to the Human Rights Act 1998. This post suggests that the new government remedy this. It also sets out part of the history to the Additional Protocols, what the rights in those Protocols include, a summary of the relevant jurisprudence and a brief note of what effect they might have in the UK.
In the run up to the 1997 general election and during the drafting of the Labour Party’s policy on what was to become the Human Rights Bill there were discussions within the Shadow Cabinet about whether or not the remaining Protocols 4, 6 and 7 to the European Convention on Human Rights that, were not currently binding on the UK as a matter of international law, should be signed and ratified and, as a result, bind the UK at an international level.
At the time the Labour Government said ‘It will be possible to ratify Protocol 4 only if the potential conflicts with our domestic laws can be resolved. This remains under consideration but we do not propose to ratify Protocol 4 at present.’[1] The then government had concerns that Articles 2 and 3 of Protocol 4 may confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have a right to reside in the UK.[2] In a subsequent Joint Committee on Human Rights report, the Committee noted that the terms of Article 2 of Protocol 4 are ‘substantially similar to those of Article 12 ICCPR, which the UK has ratified subject to reservations regarding disciplinary procedures for members of the armed forces, and regarding nationals of dependent territories and the right to enter and remain in the UK and each of the dependent territories.’[3]
In contrast, it was eventually agreed by the new Labour Government that Protocol 7 should be ratified and added to Schedule 1 of the Human Rights Act:
“4.15 In general, the provisions of Protocol 7 reflect principles already inherent in our law. In view of concerns in some of these areas in recent years, the Government believes that it would be particularly helpful to give these important principles the same legal status as other rights in the Convention by ratifying and incorporating Protocol 7. There is, however, a difficulty with this because a few provisions of our domestic law, for example in relation to the property rights of spouses, could not be interpreted in a way which is compatible with Protocol 7. The Government intends to legislate to remove these inconsistencies, when a suitable opportunity occurs, and then to sign and ratify the Protocol.
4.16 The Secretary of State will be able to amend the Human Rights Act by Order so as to insert into it the rights contained in any Protocols to the Convention which the United Kingdom ratifies in future. The Order will be subject to approval by both Houses of Parliament. The Bill also enables any reservation to a Protocol to be added, but as with the existing reservation it will have to be reviewed every five years if not withdrawn earlier.”[4]
Changes which resulted in the ability to comply with the provision of equality between spouses in Article 5 of Protocol 7, were only made in 2010.[5] However, once these changes were made, the 2010 election came along and Labour was out of office. Protocol 7 remains unratified.
Procedural safeguards relating to the expulsion of aliens
Right of appeal in criminal matters
Compensation for wrongful conviction
Right not to be tried or punished twice
Equality between spouses
The right in Protocol 12
Any right set out in law shall be secured without discrimination
Protocol 4 and 7 add rights to the ECHR, at least in part, to make up for deficiencies in the ECHR itself when compared to the United Nations International Covenant on Civil and Political Rights (ICCPR) – the UN’s equivalent of the ECHR. The UK ratified the ICCPR in 1976 (and now 172 countries across the World have ratified it).
The right to free movement and the prohibition on the collective expulsion of aliens contained in Protocol 4 are also set out in Articles 19 and 45 of the EU’s Charter of Fundamental Rights. The prohibition against double jeopardy and the equivalence between men and women contained in Protocol 7 are set out in Articles 23 and 50 of the Charter and the general prohibition against discrimination in Protocol 12 is contained in Articles 20 and 21.
Currently, Protocol 4 of the ECHR has been signed and ratified by all bar four of the 46 Member States of the Council of Europe (Greece, Switzerland, Turkey and the UK have not ratified the Protocol). Protocol 7 has been signed and ratified by every one of the 46 Member States except for Germany, Netherlands and UK. If ratified, art.4 of Protocol 4 could be an important tool in challenging the effects of the Nationality and Borders Act 2022 and Illegal Migration Act 2023 domestically and in Strasbourg. Despite inconsistent applications of art.4 of Protocol 4, the Court’s jurisprudence is one of the few legal protections against European externalisation policies and a way for those affected to challenge domestic decisions.
Protocol 12, the general anti-discrimination provision, is also a right already contained in the ICCPR[7] but is missing from the main body of the ECHR itself. Article 14, in the main Convention, only prohibits discrimination where this relates directly to the other rights in the Convention. Protocol 12 is, however, a ‘stand-alone’ provision and has a much wider remit. Protocol 12 has been ratified by twenty Member States although it only came into force in 2005. It is accepted that it would have been more difficult for the UK to ratify in 2005. Concerns were raised regarding its potential breadth, though the Joint Committee on Human Rights considered that these concerns were unwarranted.[8] In addition, the Labour Government’s Equality Act of 2010 has now resolved many of any remaining difficulties with compliance. As a signatory to a wide variety of international human rights instruments concerning equality and non-discrimination, the United Kingdom has already accepted the main principles enshrined in Protocol 12.
As with all the Convention Rights, these rights come with protections and caveats to protect the wider public interest and the interests of society more generally. This is already clear from the fact that they are all tried and tested by being part of the ICCPR, ratified across the World and by the fact that so many countries in Europe have agreed to be bound by them.
It is also clear that, all these rights are all already largely protected by provisions of domestic law. Further, to assuage concerns regarding overreach, many of the rights in these Protocols are subject to limitations or restriction. For example, restrictions which:
“are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“may … be … imposed in accordance with law and justified by the public interest in a democratic society.”
“[are] necessary in the interests of public order or is grounded on reasons of national security.”
“shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
Many of the provisions impose important but relatively restricted ‘due process’ rights – rights to a fair procedure which is already largely set out in UK law or provided by the common law created, in large measure, by judicial review.
In relation to Protocol 12, the prohibition of discrimination, consistently with the Equality Act 2010, “distinctions for which an objective and reasonable justification exist do not constitute discrimination.”
Conclusion
The focus of protecting human rights in the UK must, at the very least, be the preservation of the Human Rights Act without any erosion of either the rights or the remedies it provides. Nevertheless, the threat to the Act will hopefully disappear now that the Labour Party is in government. It is, therefore, an important step to consider adding the further protections that are set out in Protocols 4, 7 and 12 and to bring the UK in line with most of the rest of 46 countries of the Council of Europe and the 172 countries that have ratified the ICCPR.
In the context of more the authoritarian rhetoric in politics[9] and, particularly, the regressive steps taken by the previous Government towards those seeking asylum and refuge in the UK and increasing isolation from Europe, the new Government should, at least, send a clear signal that there is a new approach being developed and indicate this by ratifying Protocols 4, 7 and 12. This will hopefully provide a way to rectify some of the damage done by recent legislation and pre-empt further attacks on human rights.
John Wadham is Human Rights Advisor to the Northern Ireland Policing Board
Fiona Byrne is an Independent Human Rights Consultant and previously Human Rights Officer at the Northern Ireland Policing Board
The views expressed are those of the authors alone.
[1]Rights Brought Home, October 1997, CM 3782, para 4.11
[2] Department of Constitutional Affairs, Report of the Outcome of an Interdepartmental Review Conducted by the Department of Constitutional Affairs, July 2004, p. 40
[3] Joint Committee on Human Rights, Review of International Human Rights Instruments, Seventeenth Report of Session 2004-05, para 38
[4]Rights Brought Home, October 1997, CM 3782, paras 4.15 and 4.16
[5] By sections 198 to 201 of the Equality Act 2010.
[6] For more detailed analysis of this provision and the applicability on legislation such as the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, see John Wadham, Fiona Byrne, More Human Rights: Protocols 4, 7 and 12 of the European Convention on Human Rights and the Human Rights Act 1998, European Human Rights Law Review 2023, Issue 6.
[8] Joint Committee on Human Rights, 17th Report (2005–2006), HL 99, para 33
[9] For example, in 2023, the UK has been downgraded from ‘narrowed’ to ‘obstructed’ civic freedoms in a new report by the CIVICUS Monitor, a global research collaboration that rates and tracks fundamental freedoms in 197 countries and territories: https://monitor.civicus.org/country-rating-changes/uk/
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] EWCA Civ 745
The Claimants in this case are 10 individual asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania who entered the UK irregularly by crossing the English Channel in small boats, together with one charity, Asylum Aid.
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
Yesterday, the Divisional Court (Lewis LJ and Swift J) held that, in principle, the relocation of asylum seekers to Rwanda was consistent with the Refugee Convention and other legal obligations on the government, including those imposed by the Human Rights Act 1998. However, the Court also held that Home Secretary had failed to properly consider the circumstances of eight individual claimants to decide whether there was anything which meant that their asylum claim should be determined in the UK or they should not be relocated to Rwanda. Therefore, the decisions in those cases were set aside and referred back to the Home Secretary for her to consider afresh.
The Court’s judgment is detailed and addresses a number of issues. In this post, the focus will be on the general challenge made to removal to Rwanda in principle and what can be expected in the (likely) event that this aspect of the case is appealed further.
The Appellant in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56 was assigned female at birth, however during and after puberty they felt revulsion at their body and underwent surgery in 1989 and 1990 to alleviate those feelings. The Appellant who identifies as non-gendered, is a campaigner for the legal and social recognition of this category. The provision of “X passports” are a focal point of the Appellant’s campaign.
The question of how to determine whether or not the deportation of a foreign national convicted of criminal offending is a disproportionate interference in the family life that they may share with their partner or child has been explored in a series of cases, including the leading decisions of KO (Nigeria) (Appellant) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) [2020] EWCA Civ 1176 and has been discussed in detail on this blog here, here and here.
Do they have anything in common? Relatively little, says Nicola Barker, Professor of Law at the University of Liverpool.
When the IHRAR was announced by Robert Buckland in December 2020, it was accompanied by some of the usual rhetoric about the courts “rewriting” legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The Terms of Reference given to the IHRAR were relatively narrow and the Call for Evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.
However, in its consultation document, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184). In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the ‘living tree’ doctrine.
Given that the Review was only commissioned a year ago it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to section 6. The government propose to expand the exception in section 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that section 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142). It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK.
The more substantive questions of the balance between speech and privacy, between rights and responsibilities, limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.
The table below maps the government’s proposals for a new Bill of Rights on to the recommended and not recommended/rejected options in the IHRAR report. The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. Green text indicates where the government’s proposals broadly match a recommendation of the IHRAR, while red text indicates that the government are proposing something that the Review explicitly or implicitly cautioned against. Sometimes the proposals do not map in exactly the terms recommended or rejected by the Review, but I have matched them as closely as possible with the language used by each. For example, where the government proposals refer to ‘enabling’ UK courts to take account of case law from other jurisdictions and international bodies (a power they already can and do exercise), the Review did not consider affirming this existing power but rejected ‘requiring’ them to consider such case law. As the table illustrates, the government’s proposals bear little resemblance to the recommendations made by the IHRAR panel. More of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its Terms of Reference.
The Independent Review recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the Courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals.
Salvato v Secretary of State for Work and Pensions [2021] EWCA Civ 1482 — read judgment
The Court of Appeal has allowed the Secretary of State’s appeal against a ruling that the system of calculating childcare for Universal Credit indirectly discriminates against women. The judgment below was reported in the blog here.
Childcare costs under Universal Credit
This is a case about the payment of childcare costs under Universal Credit. Universal Credit claimants can claim an element reimbursing them up to 85% of the costs of childcare while they go to work.
Ms Salvato, a lone parent, claimed that the system for calculating childcare costs indirectly discriminated against her on grounds of sex contrary to Article 14 when read with Article 1 Protocol 1 of the European Convention on Human Rights. Her complaint related to the way in which childcare costs are calculated. Unlike other elements of Universal Credit, such as the housing costs element, the childcare costs element is only payable after the claimant has already paid the costs of the charges, rather than merely incurred them (Ms Salvato’s legal representatives dubbed this requirement the ‘Proof of Payment’ rule). She maintained that the rule placed her (and other women in her position) at a disadvantage, because unlike many men she could not afford to pay the childcare costs upfront.
The Claimants sought a declaration of incompatibility under section 4 of the Human Rights Act in respect of section 1(1)(d) of the 1967 Act. It was their contention that this section is incompatible with Articles 2, 3, 8 and 14 of the ECHR. The Court dismissed the claim in its entirety.
The Claimants
The First Claimant was a 25-year-old woman with Down’s syndrome. The Second Claimant was the mother of the Third Claimant. At 35 weeks’ gestation, the Third Claimant was identified as being very likely to have Down’s syndrome and the Second Claimant’s evidence was that during her pregnancy that she had been made to feel that a life with Down’s syndrome was of no value. The Third Claimant is now two years old has met all his developmental milestones.
The Legal Framework
As is now in force, s.1(1) of the 1967 Act provides that there may be a medical termination of a pregnancy if two medical practitioners are of the opinion that, inter alia, “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped” (under subsection (d)).
Whereas Parliament has set a general upper time limit for abortions at 24 weeks, this does not apply to abortions on grounds of foetal abnormality.
Whilst there is guidance from public medical authorities on the various factors influencing the severity of a “handicap”, the guidance does not offer a legal definition of “substantial risk” or “serious handicap”.
This post, along with those before it, summarises some of the main points of interest arising from the ALBA Conference 2019.
‘Reith Lecture (Judicial Power) Response’ – Chair: Mrs. Justice Thornton; Speakers: Lord Dyson, Sir Stephen Laws, Prof Vernon Bogdanor, Prof Meg Russell, Lord Falconer of Thoroton QC
A prestigious panel offered its response to Lord Sumption’s Reith Lectures, followed by a reply from Lord Sumption himself.
In his lectures for the BBC, Lord Sumption argued that judges have excessively increased their power and invaded into the political sphere. The Human Rights Act 1998 and Judicial Review attracted particular criticism.
Lord Sumption’s original lectures are available from the BBC here. A recording of the full discussion is available on LawPod here, so this post draws out some of the key points.
Lady Hale has thrown her wig into the debate on whether the law, represented by the courts, is gaining power while politics in Parliament is losing it. She is not the first to critique Lord Sumption’s Reith Lectures, as they were covered at ALBA’s Annual Conference too (see Law Pod UK episodes 88, 89, and 91).
This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.
This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.
The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.
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