Judges reined in on using human rights laws to block deportations

Edward Malnick
·4-min read
The Home Office is drawing up a legal definition intended to restrict the ability of judges to make "subjective" decisions about the conditions potential deportees would face in foreign countries.   
The Home Office is drawing up a legal definition intended to restrict the ability of judges to make "subjective" decisions about the conditions potential deportees would face in foreign countries.

Judges will be told what constitutes "inhuman or degrading treatment", under plans being considered by Priti Patel to curb the use of human rights laws to block deportations.

The Home Office is drawing up a legal definition intended to restrict the ability of judges to make "subjective" decisions about the conditions potential deportees would face in foreign countries.

Under the plans, the Government's Fair Borders Bill would define "inhuman" or "degrading", in cases in which foreign criminals or failed asylum seekers say they would suffer from such treatment if they were deported to a foreign country.

Article Three of the European Convention on Human Rights states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Senior Tories say the clause derived from horrors perpetrated by the Nazis during the Second World War, and has since been interpreted too widely by judges, and abused by those seeking to avoid deportation from the UK.

The move comes after Ms Patel warned of "legal and practical problems" with the "broken" asylum system.

In her Conservative Party conference speech earlier this month, the Home Secretary pledged to introduce a new system that was "firm but fair", stating: "We will stop the abuse of the system ... we will stop those who come here illegally making endless legal claims to remain in our country at the expense of the British public ... we will expedite the removal of those who have no legitimate claim for protection."

Staff are seen at the Penally Training Camp which was transformed to a temporary camp for asylum seekers arriving in the UK, outside the village of Penally near Tenby, Wales, last month - REUTERS/Rebecca Naden
Staff are seen at the Penally Training Camp which was transformed to a temporary camp for asylum seekers arriving in the UK, outside the village of Penally near Tenby, Wales, last month - REUTERS/Rebecca Naden

Judges in UK courts and the European Court of Human Rights have generally interpreted the meaning of Article Three on a case-by-case basis, with the definition of inhuman or degrading treatment depending on all the circumstances in each case.

A Whitehall source said ministers wanted to remove "ambiguity" around the application of Article Three rights, and "reduce the scope for judges to answer philosophical questions".  

A second Whitehall source confirmed that the plan was "being discussed", but added: "A decision hasn't been made".

Under the plans, the Fair Borders Bill, which will overhaul the current asylum system, would introduce a legal clarification of Article Three of the ECHR, which senior Government figures believe is being abused by would-be deportees attempting to remain in Britain.

Before entering government, Dominic Raab, now the Foreign Secretary, insisted that the interpretation of Article Three has "expanded too far" through judgments at the European Court of

Human Rights in Strasbourg. He added that the Human Rights Act, which allows UK courts to apply the ECHR in this country, had "made the situation worse for Britain".

In 2014, David Cameron's Immigration Act introduced equivalent curbs on the use of Article Eight of the ECHR - the right to family life. Mr Cameron's legislation required judges to weigh up the "British public interest" against Article Eight rights.

Ms Patel's changes would risk putting the UK on a collision course with international law.

One lawyer said that the Government would have to decide how it would respond if individuals took their cases to the European Court of Human Rights in Strasbourg, which could then order a temporary halt to any deportations its judges examined.

 The building of the European Court of Human Rights in Strasbourg - REUTERS/Vincent Kessler/File Photo
The building of the European Court of Human Rights in Strasbourg - REUTERS/Vincent Kessler/File Photo

In August, a Home Office-chartered plane with 23 migrants due on board was grounded by successful last-minute legal actions by human rights lawyers.

At the time a Home Office source said: “The British people will be outraged that despite her best efforts the Home Secretary can’t legally return failed asylum seekers to Spain thanks to spurious grounds spun by activist lawyers.”

Last month The Sunday Telegraph previously revealed that the Government has been considering opt-outs of the ECHR in areas where judges are seen to have "overreached".

Plans under discussion also include protections for British soldiers against claims relating to overseas operations. A survey of 1,500 Conservative voters found that  54 per cent would support the UK curbing European human rights laws after Brexit, while 12 per cent would oppose such a move.

The Government's plans have set up a major new confrontation with the EU, which has been demanding that the UK commits to remaining signed up to the European Convention on Human Rights and keep the Human Rights Act, which allows British judges to apply the ECHR, as the price of future "law enforcement cooperation"  with the bloc.