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

• Author: Meili, Stephen
• Position: Introduction through IV. Methodology, p. 123-150

ABSTRACT

This Article analyzes the circumstances under which international human rights treaties have helped or hurt asylum-seekers in the United Kingdom since 1991. Combining a database of nearly two thousand asylum decisions and fifty-one interviews with U.K. refugee lawyers, it identifies several factors which help determine the impact of human rights treaties in individual cases. It focuses on the United Kingdom because that country has ratified or otherwise adopted numerous human rights treaties over the past three decades, and U.K. refugee lawyers regularly invoke those treaties in representing their clients.

This Article fills a gap in the treaty effectiveness literature by addressing the extent to which domestic courts rely on or otherwise reference human rights treaties in asylum litigation. It posits that the impact of such treaties in any given case depends on several factors, including the extent to which the treaty has been incorporated into domestic law and the gender of the applicant. This Article also demonstrates that while such treaties help asylum-seekers in some cases, in others they may do more harm than good.

TABLE OF CONTENTS I. INTRODUCTION II. THEORETICAL EXPLANATIONS III. THE UK ASYLUM ADJUDICATION IV. METHODOLOGY A. Quantitative Data: Case Law Database B. Qualitative Data: Lawyer Interviews V. QUANTITATIVE DATA ANALYSIS A. Descriptive Findings 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 2. References to treaties increased sharply in the first half of the 2000s and have gradually declined since 3. References to treaties other than ECHR articles 3 and 8 increased slightly throughout the 2000s. 4. The vast majority of treaty references in judicial opinions do not help applicants obtain protection, and the percentage of such helpful references has been declining in the past half-decade. 5. To the extent that the treaty references are helpful, the majority form the basis for a grant of protection, as opposed to merely buttressing a grant of protection reached on other grounds B. Testing of Key Variables 1. Gender of Applicant 2. Gender of Judge 3. Level of the Adjudication: Upper Tribunal or Appellate Court 4. Country of Origin of Applicant VI. CONCLUSIONS VII. APPENDIX A. KEY WORDS, PHRASES, AND CASES FOR CODING HUMAN RIGHTS TREATIES VII. APPENDIX B. CODING REFERENCES TO ALL TREATIES I. INTRODUCTION

For more than half a century, the primary international law assisting persons fleeing persecution in their home country has been the 1951 Convention relating to the Status of Refugees. (1) In order to obtain relief under the Refugee Convention, a claimant must demonstrate a well-founded fear of persecution in her home country on account of at least one of five enumerated grounds: race, religion, nationality, political opinion, and membership in a particular social group. (2) In addition to the Refugee Convention, several international human rights treaties offer protection to those who flee harm for reasons that do not fit within one of the Refugee Convention's five enumerated grounds. (3) Thus, treaties such as the Convention on the Rights of the Child (4) and the European Convention on Human Rights (5) offer complementary or subsidiary protection to noncitizens, providing a source of relief from persecution independent of the protection offered by the Refugee Convention. (6) Such treaties can assist refugees in at least two other ways: they include procedural protections not available under the Refugee Convention; (7) and they are used as interpretative aids by courts considering claims under the Refugee Convention. (8) This Article focuses on the extent to which human rights treaties have provided an independent basis for relief for refugees in the United Kingdom and have assisted UK domestic courts interpreting the Refugee Convention. (9)

There is scant empirical evidence regarding the extent to which domestic courts in various countries rely on or otherwise reference human rights treaties in adjudicating claims for refugee protection. (10) We also know little about how frequently refugee lawyers utilize those treaties in advocating for their clients in domestic courts. (11) Indeed, scholars who study the effectiveness of human rights treaties acknowledge that measuring the impact of human rights treaties in the litigation context is challenging because litigation proceeds on a case-by-case basis with unique facts and procedural postures in each instance. (12)

This Article begins to fill this gap in the treaty effectiveness literature. It utilizes a mixed-method empirical approach that includes analysis of published asylum (13) decisions by UK tribunals and appellate courts over the past two decades, as well as interviews with UK lawyers who specialize in refugee law. Through this methodology, this Article identifies those circumstances under which human rights treaties have helped refugees obtain asylum or complementary protection in the United Kingdom and when they have been unhelpful and even counterproductive.

The United Kingdom is an ideal site for such an inquiry because of the numerous international human rights instruments it has adopted in one way or another over the past two decades. (14) Most prominent among these is the European Convention on Human Rights (ECHR), which the United Kingdom ratified in 1951 and effectively incorporated into its domestic law through the Human Rights Act (15) in the late 1990s and 2000. (16) The two ECHR provisions most frequently utilized by UK refugee lawyers in UK domestic courts are articles 3 and 8. (17) Article 3 prohibits torture and other forms of inhuman or degrading treatment or punishment, regardless of the purported justification; that is, the torture need not be tied to one of the five Refugee Convention grounds to justify relief. (18) Article 8 protects the right to family and private life. (19) UK domestic courts have relied on article 8 in granting complementary protection in two situations: the most common is the so-called "times and ties" scenario, where the claimant has established links to the United Kingdom through family or private life. (20) The second scenario occurs where article 8 is invoked in relation to conditions in the claimant's country of origin. (21)

The empirical data gathered for this Article suggest that international human rights treaties like the ECHR have assisted many refugees in obtaining asylum or complementary protection in the United Kingdom. The data also show, however, that other international instruments, including human rights treaties which the United Kingdom has ratified, have had little positive impact on individual asylum claims. Moreover, the extent to which any human rights instrument, including the ECHR, has assisted asylum-seekers has declined in the past half-decade.

Why have certain human rights instruments assisted asylum applicants in the United Kingdom while others have not? And why have such instruments generally become less helpful to applicants in recent years? These are the questions this Article analyzes. Part II discusses the inability of the treaty effectiveness scholarship to adequately explain the circumstances under which human rights treaties assist asylum-seekers in the litigation context. Part III provides a summary of the asylum determination process in the United...