Equality and Human Rights Commission

This guide provides practical information about human rights, and their relevance for refugees and asylum seekers. It is written directly for refugees and asylum seekers but will also be useful for people working in the asylum and immigration sector. It is written in non-legal language and contains examples based on legal cases. The guide explains how human rights affect (i) decisions about whether an asylum seeker can stay in the UK, and (ii) how they are treated while they are in the UK. It refers to the Human Rights Act, the European Convention on Human Rights and the Refugee Convention. The guide is not intended to provide detailed information on claiming asylum in the UK, and nor does it constitute legal advice. It is out of date with regard to some aspects of law and policy, but contains a comprehensive directory of contacts and sources of current advice.

• Human rights belong to everyone. They place authorities - including the Government and immigration officials - under an obligation to treat people with fairness, equality, dignity and respect.
• Human rights can in some circumstances provide asylum seekers with extra protection to allow them to remain in the UK.
• Human rights also give asylum seekers protection in terms of how they are treated while they are in the UK.
  

Legal and policy context

The opening statement of this guide is particularly apposite in the context of asylum: 'Human rights belong to everyone'.

The guide explains that public authorities in the UK - including the government and immigration officials - are under an obligation to treat asylum seekers with fairness, equality, dignity and respect.

The Human Rights Act (HRA) 1998 gives domestic effect to most of the rights in the European Convention on Human Rights (ECHR). These human rights laws work alongside the 1951 Refugee Convention, providing an extra source of protection for asylum seekers.

Human rights and remaining in the UK

If you are a refugee according to the Refugee Convention, you cannot return to your country of origin because of a well-founded fear of persecution for reasons of:

• race
• nationality
• membership of a particular social group
• religion, or
• political opinion.

Human rights may strengthen an asylum claim by, for example, helping to explain what is meant by 'persecution' under the Refugee Convention.

The guide explains that if an asylum seeker does not meet the refugee criteria, but is able to show that removing them from the UK to another country will breach their human rights, they may still be allowed to remain in the UK - at least temporarily, and in some cases permanently.

It notes that the two most commonly invoked rights of asylum seekers are:

• the right not to be tortured or treated in an inhuman or degrading way - this is an 'absolute' right which means that it must never be limited or restricted in any way
• the right to respect for private and family life - this is a 'qualified' right which means that it may be restricted, for example, to protect the rights of others or the interests of the wider community. The restriction must be lawful, necessary and proportionate - that is, appropriate and not excessive in the circumstances.

For each right, the guide explains commonly used terms and concepts and the types of practice or treatment that might infringe the right.

Case example
The UK government wanted to expel an Indian man. They argued that he was a suspected terrorist. The European Court of Human Rights said that the UK government could not expel him, because there was a real risk that he would be tortured if he was returned to India. The fact that he was a suspected terrorist was irrelevant. The ban on torture, inhuman and degrading treatment applies to everyone regardless of their circumstances.
Source: Your Human Rights - a guide for refugees and asylum seekers, p.17

Case example
A sixteen year old fled Kosovo after his father was killed and his mother and sister disappeared. He travelled to the UK and claimed asylum. In accordance with Government policy at the time, his application was not processed until after he turned 18. By this time the war in Kosovo was over. His asylum application failed because he no longer faced persecution. For over three years the young man had lived in the UK with his aunt and uncle, who treated him like a son. He had no surviving family in Kosovo. The UK courts found that because his removal would effectively bring his family life to an end, this was an 'exceptional' case. Returning him to Kosovo would not be proportionate and would breach his right to respect for his family life. He was therefore allowed to remain in the UK.
Source: Your Human Rights - a guide for refugees and asylum seekers, p.22

Treatment of asylum seekers in the UK

In addition to the two rights mentioned above, the right to liberty is important for people seeking asylum.

The right to liberty is a 'limited' right. The ECHR sets out specific circumstances in which certain rights can be limited; for example, public authorities may limit the right to liberty if a person is legally detained in a removal centre for immigration purposes

The guide explains that the government cannot detain people at random - it needs to be able to justify its decision. If a person seeking asylum has serious disabilities, is elderly or pregnant, they should only be detained in exceptional circumstances. The guide offers sources of up-to-date advice on matters relating to detention.

The guide also contains practical information about the provision of support to asylum seekers and the ways in which human rights come into play in decisions about financial support and accommodation.

Related equality messages (if applicable):

The guide notes that severe discrimination based on race or other grounds may in some circumstances amount to degrading treatment.

Other important information:

This guidance is written primarily for asylum seekers and their advocates, rather than for public authorities. It is out of date with respect to some aspects of law and policy. It was written before the UK Border Agency assumed responsibility for asylum and asylum support) in the UK.

Date of review

April 2011

• Social Care Institute for Excellence (2010) Good practice in social care with refugees and asylum seekers
  http://www.scie.org.uk/publications/guides/guide37/files/guide37.pdf

We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.