The following blog post summarizes Do Human Rights Treaties Help Asylum-Seekers?: Lessons from the United Kingdom (48 Vand. J. Transnat’l L. 123 (2015)) by Stephen Meili.
Several international human rights treaties offer protection to refugees who flee their home countries to escape persecution.. While these treaties have been widely adopted, the effectiveness and consistency of their use in domestic courts by asylum-seekers varies. Why have some human rights instruments assisted asylum applicants more effectively than others? And why have they become less effective in recent years? Professor Meili answers these questions in his article, Do Human Rights Treaties Help Asylum-Seekers?: Lessons from the United Kingdom.
The European Convention on Human Rights (ECHR), which the United Kingdom ratified in 1951, has been a part of UK domestic law for the past two decades, since its incorporation in the Human Rights Act. During that period, UK refugee lawyers have often successfully used ECHR articles 3 (prohibiting torture and other forms of inhuman and degrading treatment or punishment) and 8 (protecting the right to family and private life) when seeking asylum or other forms of protection for clients. Asylum-seekers also use other international instruments, ratified by the United Kingdom but not necessarily incorporated into domestic law, in asylum claims with varied success rates. Interestingly, the effectiveness of all human rights instruments—including the ECHR—in asylum claims has declined over the past half decade.
Meili’s article uses empirical evidence to examine how human rights treaties have provided an independent basis of relief for refugees in the United Kingdom and assisted UK domestic courts interpreting the Refugee Convention. Utilizing a mixture of published decisions by UK tribunals and appellate courts and interviews with UK lawyers who specialize in refugee law, Meili determines what makes these treaties effective. He finds that key factors, such as whether treaties have been incorporated into domestic law, the gender of the applicant, whether lawyers utilize discretion when making arguments based on international instruments, and how the public perceives refugees, all play a role in an instrument’s effectiveness.
Finally, Meili suggests how refugee lawyers can utilize human rights treaties to become better advocates for their clients. For instance, invoking treaty references early in the advocacy process would increase the likelihood that such references will appear in published appellate decisions, which would provide precedent for judges in the future. Also, advocates should choose wisely when deciding whether to include an argument from a human rights treaty in an asylum claim, as injudicious use is frowned upon by judges. Finally, outside the litigation realm, lawyers should work to cast asylum-seekers in a positive light. The perceptions of the general public, the media, and the government all impact the long-term efficacy of international human rights instruments. Accordingly, lawyers responsibilities to their clients extend beyond the courtroom and into working with advocacy groups and NGOs to provide the public with an accurate portrayal of asylum-seekers as humans in need of help. If the public perceives asylum-seekers as drains on resources and security threats (which has long been the case in the United Kingdom), advocates face an even more arduous battle on their behalf.