Do human rights treaties help asylum-seekers? Lessons from the United Kingdom.

• Author: Meili, Stephen
• Position: V. Quantitative Data Analysis through Conclusion, with footnotes, p. 150-177

5. QUANTITATIVE DATA ANALYSIS

   1. Descriptive Findings

      The quantitative data gathered for this study confirms both a pessimistic and optimistic view of the extent to which human rights treaties assist applicants in obtaining relief. (115) Each of these perspectives is described in the findings reported below.

      1. The only treaty provisions regularly referenced by UK judges are those which have been effectively incorporated into UK domestic law. Treaties not incorporated are rarely referenced.

         As Table 1 illustrates, the only treaty provisions which UK judges have regularly referenced in published asylum decisions over the past two decades are articles 3 and 8 of the ECHR. They constitute 85 percent of all treaty references during that period.

         Given that the ECHR is the only treaty in this study to be effectively incorporated into UK domestic law, these data highlight the importance of the incorporation of treaties as a factor determining the impact of treaties on domestic jurisprudence. (116) On the other hand, incorporation does not guarantee impact, as the other ECHR articles included in this study (articles 2 and 6) were referenced only occasionally. One can assume that they were not as germane to as many asylum cases as articles 3 and 8. (117)

         Viewing references over time demonstrates even more graphically the importance of incorporation in determining the prevalence of treaties in domestic court refugee jurisprudence. Graph 1, below, tracks the number of domestic court references to all of the treaties in this study, as well as to ECHR articles 3 and 8 (by far the two most referenced treaty provisions) since the early 1990s.

         The data in Graph 1 and Chart 1 are consistent with comments from lawyers interviewed for this Article. Nearly all indicated that they routinely invoke the ECHR, particularly articles 3 and 8, in their submission to the tribunals and appeals courts. The following interview excerpts illustrate this strategy:

         * The European Convention is [the] bedrock of submissions. It would be very rare that I would ever run a case in the First-tier Tribunal which ... doesn't rely on Article 8 at the very least and routinely Article 3 as well. (118)

         * [W]e have always used the ECHR, always.... [I]t's relatively easy to incorporate the ECHR because it's now part of British law so you know it's easy. (119)

         Moreover, as Graph 1 vividly demonstrates, prior to 2000 (when the HRA had become effective throughout the UK (120)) references to human rights treaties were virtually nonexistent. (121) The following comments from lawyers confirm this phenomenon:

         * There is no doubt that if you think back before the HRA there would be a lot of diffidence about engaging with human rights law. That has changed. Judges are much more open than they would have been 20 years ago. (122)

         * [B]efore 1998, there were two schools of thought: ... they both ... felt that our common law was capable of delivering the same principles without tying us down to a particular treaty. (123)

         These reflections on judicial attitudes demonstrate why lawyers rarely invoked the ECHR, or any other human rights treaty, in UK domestic courts prior to enactment of the HRA and, conversely, why the ECHR has become commonplace since then. They also reinforce the findings from the quantitative data (reflected in Table 1 and Chart 1) about the importance of incorporation in determining the frequency with which treaties are referenced in published asylum decisions.

      2. References to treaties increased sharply in the first half of the 2000s and have gradually declined since.

         As Graph 1 illustrates, the early 2000s saw a tremendous increase in treaty references in published Upper Tribunal and appeals court decisions, followed by a precipitous decline that has leveled off somewhat in the last few years. This pattern is mostly attributable to ECHR Articles 3 and 8, which followed a similar pattern of a sharp increase early in the decade followed by a steady decline through 2012, although article 8's was not as dramatic in either its rise or fall. (124)

         This pattern is likely attributable to a combination of factors. Most obvious, the tremendous spike in references to articles 3 and 8 followed the promulgation of the HRA in the early 2000s. As noted above, since that time lawyers have regularly invoked the ECHR, which has forced judges to apply it to the facts of the case and, thus, reference it in their decisions.

         The steady decline in treaty references in the latter part of the 2000s is a bit more puzzling. One possible explanation is a decrease in refugee protection claims, which would presumably result in a declining number of treaty references in published decisions. However, although the number of asylum claims has, indeed, declined over the past decade, there is no indication that the annual number of published opinions, from which the data for this study were collected, has experienced a similar decline. (125)

         Another possible explanation is what I have referred to elsewhere as judicial fatigue with human rights-based arguments. (126) Several lawyers noted that judges become exasperated by repeated invocations of treaty-based arguments and see them as signs of desperate attempts to obfuscate a weak case:

         * People feel they have to throw everything in.... I've sat at the back of the court lots of times and watched judges say 'What does this add to your argument?' Why be put in that position? (127)

         * One sign of a weak advocate is to fail to distinguish between strong points and weak points. It's not unusual for weak advocates to make barnstorming arguments based on human rights, which just irritate the judge, which means that the judge will be distracted from stronger arguments. (128)

         * There are some article 3 and 8 arguments that are bad points. They are fall back points.... Those arguments don't work and diminish the force of their real argument. It undermines your good points. (129)

         * [Judges are] weary. They've had it up to there with article 8 in particular. It is overused in weak cases, with people desperate not to be removed. (130)

         * J]udges can get impatient about being told to read very soft law in producing a hard answer. Kind of the classic advocate's difficulty that you miss, you divert attention from the crunch point on which you might well win. (131)

         These comments suggest that refugee lawyers in the United Kingdom (and elsewhere) should use human rights-based arguments judiciously, lest they alienate the judge. (132) They also suggest that judges inclined to view treaty-based arguments as simply superfluous add-ons, as "overegging the pudding" (as one lawyer put it (133)), might be inclined to ignore them in their decisions. As a result, fewer references to treaties are likely to appear in judicial decisions over time.

         An additional possible explanation for the decline in references to treaties over the past decade is what Catherine Dauvergne describes as a "learning effect" among judges. (134) Writing about a decline in treaty references in published tribunal decisions over the past decade in Canada, Dauvergne argues "that decision makers are more likely to discuss international norms when the norms are newly relevant." (135) As time passes, these decision makers may feel less of a need to reference norms that have become an accepted part of asylum jurisprudence. (136) Moreover, as the judiciary in general becomes more comfortable interpreting a particular treaty, the decisions in which it is referenced may meet the criteria for publication (for example, a novel argument) less often. (137)

         A related explanation is that the spike in references in the early 2000s reflects the lack of domestic case law on various treaty-related points to help guide the First-tier Tribunal. Once the Upper Tribunal and appellate courts had established precedent regarding how the treaties should be applied, there was most likely a decreased need for appellate review. (138) This is a generally common pattern: when a law changes or a new type of case emerges, there is an increase in appeals as courts determine the meaning and scope. Once the law is clarified, the number of appellate cases in that area drops off. (139)

         A final possible explanation for the decline in references is the more sophisticated use of treaty-based arguments by refugee lawyers over time. Whereas lawyers might have been inclined to "overegg the pudding" soon after the HRA came into effect, they may have learned

         to invoke those treaties a bit more discreetly. For example, one barrister told me that because of the government's efforts to limit its scope, he considers article 8 to be "dead." (140) Others noted that it was unnecessary to invoke article 3 in a case strong enough to succeed on Refugee Convention grounds alone. (141) A more selective use of article 3, in particular, would help to explain the overall decline in treaty references, given that it is the treaty most responsible for the steep drop in references overall in the latter half of the 2000s. (142)

      3. References to treaties other than ECHR articles 3 and 8 increased slightly throughout the 2000s.

         As noted above, the treaty most responsible for the decline in treaty references in recent years is the ECHR, specifically articles 3 and 8. While the other treaties in this study were not referenced nearly as frequently, Graph 2, below, demonstrates that the number of those references has gradually increased in recent years.

         The treaty most responsible for the modest increase in judicial references in the later 2000s is the CRC, which received more judicial references than any other non-ECHR treaty during the two decades analyzed for this study. (143) The CRC was rarely referenced prior to the late 2000s, when two events brought the notion of the best interests of the child (one of the key elements of the CRC) into mainstream UK refugee law. The first was Section 55 of the UK Borders, Citizenship and Immigration Act 2009...