Introduction

The Illegal Migration Bill contains provisions, the use of which would frustrate the effect of interim measures from the European Court of Human Rights (ECtHR) in Strasbourg. In practice this means that such interim measures would have limited or perhaps no legal effect in stopping the Home Secretary removing from the UK persons subject to immigration control, including those seeking asylum.

This is no need for this measure. Needlessly it cuts into the power of judges to make decisions on a case-by-case basis. It is not simply a restriction of individual rights; it also disturbs the relationship between the Government and the judiciary. In so doing, it is yet another pressure upon the constitutional principle of the separation of powers, intruding as it does on the Court’s functions of deciding questions of law and of protecting fundamental rights. If that were not serious enough, additionally, it puts the UK on a course for mass non-compliance with the interim measures of the ECtHR and thus puts the UK on a course to breach its international commitments.

The offending clause

A clause in the Bill (currently clause 51) contains a power for the Home Secretary to make regulations to make provision about interim measures indicated by the ECtHR, as they relate to the removal of persons from the UK. Among other things, regulations may make provision about interim measures as they relate to the Bill’s duty on the Home Secretary to make arrangements for the removal of persons from UK; the Bill’s power for the Home Secretary to remove unaccompanied children; and the Bill’s power for family members to be removed.

Only when the Bill comes into force as an Act will the regulations be made. This frustrates top-line Parliamentary scrutiny of the particular detail of the provisions and how they are intended to operate in practice. That matters not least as the commencement of the Home Secretary’s duty to make arrangements for the removal of persons arriving in the UK without permission (clause 2 of the Bill) can only happen once regulations have been made to restrict ECtHR interim measures (see clause 59).

Thus, a central part of the Bill’s operation depends upon these regulations being made. Without those regulations frustrating interim measures from the ECtHR, a person who the Home Secretary was duty-bound to remove could seek an interim measure from the ECtHR. Further, those persons in a look-a-like position could seek to rely on an interim measure granted to one person as a material factor when seeking interim relief in domestic courts in their own case.

As things stand, the precise effect in domestic law of the proposed regulations on a person who obtains an interim measure from the ECtHR, as well as those who seek look-a-like interim relief in domestic courts where similarly situated, is unclear. The position is wholly unsatisfactory.

Human rights protection

As it well known, the UK is a member state of the Council of Europe (CoE) and the European Convention on Human Rights (ECHR) is one of a number of CoE agreements that the UK has signed and ratified. Under the ECHR, the ECtHR provides both a judicial forum for individuals to obtain redress against a state as well as a measure of protection. The ECtHR’s judgments are binding on the state concerned.

Further, as is well known also, the UK makes provision for some ECHR rights to be given effect and to be available in its domestic law via the Human Rights Act 1998. A person who is unsuccessful in securing human rights protection and/or redress in domestic proceedings may seek protection and/or redress from the ECtHR.

Rule 39 of the ECtHR’s Rules of Court provides for the interim measures that are the subject of the Bill:

1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.

In an immigration case, a Contracting State’s failure to give effect a Rule 39 measure will occasion a breach of Article 34 ECHR, which provides:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

In Mamatkulov and Askarov v Turkey (Applications nos. 46827/99 and 46951/99) 41 EHRR 494 the Grand Chamber of the ECtHR held:

128. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34.
129. Having regard to the material before it, the Court concludes that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.

Thus, regulations made under Clause 51, insofar as they frustrate the effect of Rule 39 interim measures, could lead to the UK disrespecting the ECtHR and breaching the Article 34 ECHR in the result.

Clause 51 revisited

As noted above, the clause is an unnecessary and unwarranted intrusion into the role of the courts as a distinct branch of government in the constitutional order, as well as a provision that jeopardises the UK’s compliance with its international commitments.

First, it is unnecessary as there is no evidence of abuse. The fact that interim measures are occasionally obtained from the ECtHR by persons resisting removal from the UK does not by itself demonstrate that the supervisory system of the ECtHR is being exploited or would be exploited. No evidence of any abuse has been advanced.

Second, in considering the effect of an interim measure for one person in another case brought by another person domestically, courts have the necessary expertise to weigh up the factors bearing on whether to exercise discretion and grant interim relief. It does not follow necessarily that interim relief must be granted by a domestic court merely because another person in a superficially similar situation obtained an interim measure from the ECtHR, see the discussion in the Court of Appeal case of AR v Secretary of State for the Home Department [2011] EWCA Civ 857.

Third, the provision creates the risk that matters material to consideration of ECHR rights protection (including the reasons given by the ECtHR on the evidence before it when making an interim measure in one case) will go unconsidered by a domestic court that ought properly to be seized of them when considering to grant interim relief in another case.

Fourth, the proposed provision displays a lack of respect for the legal order (including the role of courts internationally and domestically) by which the UK has chosen to be bound in applying the ECHR and creates additional risk of non-compliance.

In the result, clause 51 ought not to stand part of the Bill.