1 One of the first headlines was ‘He has AIDS and convictions for drugs and violence. But the asylum seeker has a human right to be in Britain, says a judge. And we can’t even name him.’ This headline took up a third of a page in the Daily Mail (25 October 2000).
2.
2 Hansard HC 16 February 1998, col. 769.
3.
3 Ibid., HL, 3 November 1997, col. 1228.
4.
4 Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden and the UK. As of the end of 2000, there were forty-one member states: Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, former Yugoslav Republic of Macedonia, Turkey, Ukraine and the UK.
5.
5 Statute of the Council of Europe, 1949 (Cmd 7778).
6.
6 Lester and Pannick, Human Rights Law and Practice (London, Butterworths, 1999), para 1.15.
7.
7 Protocol 4 of the Convention. Only British citizens under the 1981 British Nationality Act have the ‘right of abode’ in the UK; other British nationals, such as British Overseas Citizens, British Nationals (Overseas) and British Subjects do not, and are subject to immigration control. The distinction between ‘first-class’ and ‘second-class’ British nationals was on grounds of UK ancestry (i.e., race), and originated in Labour’s Commonwealth Immigrants Act of 1968, which deprived UK and Colonies citizens of Asian descent of their right to enter the UK.
8.
8 Complaints were addressed to the Commission, which decided if they were admissible (for which there were procedural hurdles such as time limits and exhaustion of domestic remedies, and substantive screening), invited governments to respond, reported its opinion on whether the Convention had been violated and, if the relevant government did not offer to settle, referred cases on to the Court. The Commission was abolished in 1999 and the Court performs all the functions itself.
9.
9 For the full text of the letters from the UK government, see (1966) 15 ICLQ 539.
10.
10 Hansard HC 5th series, 20 November 1950.
11.
11 HC Official Report (5th Series) 23 May 1960 col. 174.
12.
12 Ibid., col. 180.
13.
13 See Lester and Pannick, op. cit., para 1.21ff.
14.
14 Macdonald and Blake, Immigration and Nationality Law and Practice (London, Butterworths, 1995), 4th ed., p. 432-432.
15.
15 The case was brought in 1971 and is reported in the European Human Rights Reports (EHRR) (Vol. 2, 1978), p. 25.
16.
16 Series A No 145B, 11 EHRR 117.
17.
17 Application 2991/66, Alan v UK (1967) The Times (12 October 1967), relating to the refusal to allow a 12-year-old boy to join his father in the UK. It led to a friendly settlement.
18.
18 East African Asians v UK, published in Human Rights Law Journal (1994), p. 215-215.
19.
19 Cases could take up to seven years to get to the Court and could cost up to £100,000. The Commission could grant legal aid in appropriate cases.
20.
20 Golder v UK (1975) Series A, No 18, 1 EHRR 524.
21.
21 Soering v UK (1989) Series A No 161; 11 EHRR 439.
22.
22 Chahal v UK (1996) 23 EHRR 413.
23.
23 By the Special Immigration Appeals Commission Act 1997.
24.
24 HLR v France (1997) 26 EHRR 29.
25.
25 DvUK (1997) 24 EHRR 423.
26.
26 Berrehab v Netherlands (1988) Series A No 138; 11 EHRR 322.
27.
27 See for example Beldjoudi v France (1992) Series A No 234A, 14 EHRR 801; Moustaquim v Belgium (1991) Series A No 193; 13 EHRR 802; Lamguindaz v UK (1994) 17 EHRR 213.
28.
28 McCann, Farrell and Savage v UK (1996) 21 EHRR 97.
29.
29 Murray v UK (1995) 19 EHRR 193.
30.
30 In the later English case of Condron and Condron v UK (2000), the Court held that the system in England, where the judge tells the jury that an accused’s silence in the face of apparently incriminating evidence may be evidence of guilt, violated the principle that a person is innocent until proven guilty, protected by Article 6 of the Convention.
31.
31 Fox, Campbell and Hartley v UK (1990) Series A No 142; 13 EHRR 157.
32.
32 Aksoy v Turkey (1996) 23 EHRR 513; Assenov v Bulgaria; Kurt v Turkey (1999) 27 EHRR 373.
33.
33 Osman v UK (1999) Family Law Reports (FLR) 1, p. 193, where a deranged teacher had become obsessed with a boy and had killed his father and seriously injured the boy, after a series of escalating threats. The Court held that the state had a duty to protect people against known threats, although the duty was not absolute. See also AvUK (1999) 27 EHRR 611, where the government was held liable for a step-father’s beating of his young stepson because the criminal law did not adequately protect the child.
34.
34 Environment minister John Prescott issued a statement that ‘I am unable to make a statement that the provisions of this Bill are compatible with the Convention’ after the House of Lords defeated a government attempt to repeal section 28 of the Local Government Act, a Tory measure which banned the promotion of homosexuality, resulting in local authorities and schools failing to tackle homophobia for fear of court action.
35.
35 By the Race Relations (Amendment) Act 2000.
36.
36 It failed to oppose the abolition of the right to silence, the cornerstone of criminal justice; it supported proposals to permit police to break in to people’s homes and journalists’ and lawyers’ offices and doctors’ surgeries to plant listening devices; it supported the proposal that the National Criminal Intelligence Service conduct surveillance on behalf of any law enforcement agency in the world; a Bill to criminalise foreign dissidents was supported by Labour’s front bench and only defeated when left-wingers forced a vote in an almost empty House of Commons; it supported a proposal to allow police to order 24-hour stop and search operations in any area where they suspected knives were being carried; it supported ‘two strikes’ sentencing. As shadow home secretary, Straw attacked ‘aggressive beggars and squeegee merchants’, proposed to curfew young people off the streets and to reduce the age of criminal responsibility, while Blair endorsed ‘zero tolerance’ policing.
37.
37 Terrorism is defined under the Terrorism Act 2000 as the use or threat of action to influence government or intimidate the public, to advance any political, religious or 94 Race & Class 43(2) ideological cause. The government or public concerned need not be in the UK. ‘Action’ includes serious violence to property, serious risk to the health or safety of the public or a section of it, and serious interference with an electronic system. It is an offence to incite terrorism abroad or to collect information which might be useful to terrorists.
38.
38 Under the Regulation of Investigatory Powers Act 2000.
39.
39 See CARF (No. 40, October–November 1997), p. 5.
40.
40 In a case brought by the Joint Council for the Welfare of Immigrants, R v Secretary of State for Social Security ex parte JCWI, reported in the 1997 Weekly Law Reports (WLR) 1 at 275.
41.
41 See, for example, evidence given to the House of Commons Special Standing Committee on the 1999 Bill; see also ‘Token gestures: the effects of the voucher scheme on asylum seekers and organisations in the UK’, a report by Oxfam GB, the Refugee Council and the Transport and General Workers’ Union, December 2000.
42.
42 See CARF (No. 49, April–May 1999); (No. 52, October–November 1999); (No. 54, February–March 2000); No. 57, August–September 2000); (No. 58, October– November 2000) for dispersal and vouchers and campaigns against them.
43.
43 Another Country: implementing dispersal under the Immigration and Asylum Act 1999 (London, Audit Commission, June 2000).
44.
44 See, e.g., ‘Refugees pour back to London: nowhere left to run’, Observer (31 December 2000).
45.
45 For example, there will be no appeal against a decision to give six months’ leave to someone entitled to a longer period or to indefinite leave. Appeals against removal of asylum seekers to ‘safe’ transit countries are not suspensive of removal unless they are on human rights grounds, and the secretary of state is given power to certify such appeals as manifestly unfounded, thereby guillotining them.
46.
46 ‘An effective protection response for the twenty-first century’, Jack Straw’s speech to the Institute of Public Policy Research (6 February 2001).
47.
47 Horvath v Secretary of State for the Home Department, reported in the Immigration and Nationality Law Reports (INLR) 2000, p. 239.
48.
48 R v Secretary of State for the Home Department ex parte Shafiq Ur Rehman, reported in INLR 2000, p. 531.
49.
49 The process of de-universalising these rights and according them on the basis of immigration status was begun with charges for visiting overseas patients in the NHS in the early 1980s, and continued piecemeal, culminating in the provisions of the 1999 Act taking immigrants out of the social welfare system completely.
50.
50 In Freedom, law and justice: the 1998 Hamlyn lectures (London, Sweet and Maxwell, 1999) pp. 45–6.
51.
51 Peter Mandelson, cited in Francesca Klug, Values for a godless age (Harmonds-worth, Penguin, 2000), p. 163. This reminds us that incorporation of the Convention was, during the 1960s, a right-wing project to use the judiciary to protect property rights against a socialist government which might want a radical redistribution of wealth.
52.
52 From ‘A new agenda for democracy: Labour’s proposals for constitutional reform’, NEC statement April 1993, cited in Klug, ibid.
53.
53 Straw has gone on record on a number of occasions to voice his opinion that no Czech or Slovak Roma are genuine asylum seekers, despite all the evidence of systematic racial persecution in those countries. See A. Sivanandan, ‘Refugees from globalism’ in CARF (No. 57, August–September 2000).
