5 UK immigration law, the 1951 Refugee Convention and other international treaties
Aside from the ECHR there are a number of other international instruments that are relevant to immigration law, including:
- 1951 Refugee Convention, discussed below
- Citizen’s Rights Directive (EU) – Directive 2004/38 EC (also commonly referred to as EEA Free Movement Directive (EU))
- Immigration (European Economic Area) Regulations 2006 and 2016 (EU).
Laws on refugees and asylum-seekers have a long history linked to the ancient custom of the right of asylum, where the international community would protect anyone forced to flee their home country. In the past 100 years, these rights have become more formalised under international law. International human rights law now refers to the duties owed by States to anyone fleeing persecution and serious harm. The most important of these pieces of international law is the 1951 Convention Relating to the Status of Refugees (commonly known as the Refugee Convention) and its 1967 Protocol.
The Refugee Convention broadened the criteria that States would use to grant asylum. Article 1A(2), as amended by the 1967 Protocol, states that the Convention includes not only those fearing persecution on traditional political grounds, but also anyone with a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group’ (UN, 1951/1967).
The UK has incorporated some of the rights found in the Refugee Convention into domestic law, including the right to lawful stay in the UK and then an associated right to work, study, claim housing and welfare benefits, and access free healthcare. Refugees also have a right to reunite their family under the refugee family reunion process. To become a refugee, an individual must first claim asylum.
(Chatham House, 2005), and it is not uncommon for asylum claims in the UK to be refused.
The ECHR and HRA can help to provide additional grounds for protection, especially in relation to removals. For example, if an asylum-seeker does not qualify for refugee status, the HRA can enable a UK court under Article 3 to prohibit removal where an asylum-seeker’s return to their home country would otherwise result in a ‘real risk’ of ill-treatment.
Climate change is expected to alter the pattern of migration and create climate change refugees. There is also the Convention on the Reduction of Statelessness, and you may have encountered the challenges that this presents to both individuals and States through news and media reports in the past decade.
Convention on the Reduction of Statelessness
This was adopted on 30 August 1961 and entered into force on 13 December 1975. It complements the 1954 Convention relating to the Status of Stateless Persons and was the result of more than a decade of international negotiations on how to avoid the incidence of statelessness.
Together, these two treaties form the foundation of the international legal framework to address statelessness, a phenomenon that continues to adversely affect the lives of millions of people around the world. The 1961 Convention is the leading international instrument that sets rules for the conferral and non-withdrawal of citizenship to prevent cases of statelessness from arising.
By setting out rules to limit the occurrence of statelessness, the Convention gives effect to Article 15 of the Universal Declaration of Human Rights, which recognises that ‘everyone has the right to a nationality’ (UN, 1961).
In summary, the Convention means that individuals cannot normally be returned to a country where they fear persecution for certain specified reasons. UK courts have been active in ensuring that refugees are not returned to a country where they would be at risk of persecution, or that might return them to another unsafe country.