Enforced Destitution of Asylum Seekers in the United Kingdom: The Denial of Fundamental Human Rights

International Journal of Refugee Law

Volumn 10, Issue 3, 1998, Pages 462-497

  Cholewinski, Ryszard ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

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EID: 0344795972     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/10.3.462     Document Type: Article

References (223)

1. 4 All ER 385, 401e. Hereinafter referred to as ex parte B.
2. See, for example, Joint Council for the Welfare of Immigrants (JCWI), Annual Report and Policy Review 1996, 2.
3. SI 1996 No. 50. Hereinafter referred to as the '1996 Regulations'.
4. The Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996, Report by the Social Security Advisory Committee under Section 174(1) of the Social Security Administration Act 1992 and the statement by the Secretary of State for Social Security in accordance with Section 174(2) of that Act, Cm 3062 (Jan. 1996), paras. 93-96 [hereinafter SSAC Report and Statement to the SSAC].
5. The Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996, Report by the Social Security Advisory Committee under Section 174(1) of the Social Security Administration Act 1992 and the statement by the Secretary of State for Social Security in accordance with Section 174(2) of that Act, Cm 3062 (Jan. 1996), paras. 93-96 [hereinafter SSAC Report and Statement to the SSAC].
6. Ss. 9, 10, 11 and Sch. 1.
7. Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 (CSR51); ratified by 132 States at 30 June 1998; Protocol Relating to the Status of Refugees, 31 Jan. 1967, 606 UNTS 267 (CSRP67); ratified by 130 States at 30 June 1998.
8. Hansard, H.C., 4 Dec. 1997, cols. 292-4 (written answer). At the time of writing, the results of the inter-departmental review had not yet been announced.
9. Statement to the SSAC, above note 4, para. 3.
10. However, this exception only applies if the Secretary of State issues a declaration of such upheaval and if the asylum claim is made within three months of this declaration. No declarations were issued by the previous Conservative government, but the Labour Home Secretary announced such declarations in regard to the Democratic Republic of the Congo (formerly Zaire) (16 May 1997) and Sierra Leone (1 July 1997). Hansard, H.C., 3 July 1997, col. 284 (written answer).
11. AIA 1996, s. 11(1) and Sch. 1, which reinstate the 1996 Regulations as if they had taken effect on the day of the entry into force of the AIA 1996 (24 July 1996).
12. The following non-contributory benefits have also been withdrawn: Family Credit, Disability Working Allowance, Attendance Allowance, Disability Living Allowance, Invalid Care Allowance, and Severe Disablement Allowance. It should be noted that prior to 5 Feb. 1996 all but the first two benefits were subject to a six month presence test and were therefore unavailable to many asylum seekers. See RASU, Asylum Seekers and Benefits: Effects of the Asylum and Immigration Act 1996, RASU/08.96/WR/15, para. H. In commenting on the government's original proposals, the Refugee Council observed that the 'removal of entitlement to these benefits will lead to hardship for disabled and other vulnerable asylum seekers'. Refugee Council, Representations to the Social Security Advisory Committee on The Social Security (Persons from Abroad) Miscellaneous Amendment Regulations (Nov. 1995) para. 10 [hereinafter Refugee Council Representations to the SSAC]. I am grateful to Nish-Muthoni Matenjwa, a Development Worker from the Refugee Advisers Support Unit (RASU), for sending me these representations as well as other Refugee Council documentation.
13. The following non-contributory benefits have also been withdrawn: Family Credit, Disability Working Allowance, Attendance Allowance, Disability Living Allowance, Invalid Care Allowance, and Severe Disablement Allowance. It should be noted that prior to 5 Feb. 1996 all but the first two benefits were subject to a six month presence test and were therefore unavailable to many asylum seekers. See RASU, Asylum Seekers and Benefits: Effects of the Asylum and Immigration Act 1996, RASU/08.96/WR/15, para. H. In commenting on the government's original proposals, the Refugee Council observed that the 'removal of entitlement to these benefits will lead to hardship for disabled and other vulnerable asylum seekers'. Refugee Council, Representations to the Social Security Advisory Committee on The Social Security (Persons from Abroad) Miscellaneous Amendment Regulations (Nov. 1995) para. 10 [hereinafter Refugee Council Representations to the SSAC]. I am grateful to Nish-Muthoni Matenjwa, a Development Worker from the Refugee Advisers Support Unit (RASU), for sending me these representations as well as other Refugee Council documentation.
14. Defined under s. 13(2) as 'a person who under the 1971 [Immigration] Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)'. This definition covers immigrants with conditions attached to their residence, such as those whose entry into the UK is subject to an understanding that they will have no recourse to public funds, and 'sponsored immigrants'. See R. Cracknell, Social Security Changes for Asylum Seekers and Other Persons from Abroad, H.C. Research Paper 96/9 (19 Jan. 1996) 8.
15. SI 1996 No. 1982 (19 Aug. 1996).
16. Section 10, brought into force on 7 Oct. 1996 (SI 1996 No. 2127).
17. See ss. 17, 20, and 24. See also RASU, The Asylum & Immigration Act 1996: What it means - Related measures - Timetable, RASU/09.96/As/9, 6 and Refugee Council Representations to the SSAC, above note 11, paras. 12.13-12.17. For reasons of space, the scope of this article is limited to the consideration of the impact of the measures withdrawing benefits from adult asylum seekers, who are arguably the most severely affected group.
18. See ss. 17, 20, and 24. See also RASU, The Asylum & Immigration Act 1996: What it means - Related measures - Timetable, RASU/09.96/As/9, 6 and Refugee Council Representations to the SSAC, above note 11, paras. 12.13-12.17. For reasons of space, the scope of this article is limited to the consideration of the impact of the measures withdrawing benefits from adult asylum seekers, who are arguably the most severely affected group.
19. Above note 10. Section 11(2), however, makes one concession by providing the Secretary of State with the power to issue regulations permitting asylum seekers to recover back-dated benefits if their claims for asylum are successful. During the passage of the Asylum and Immigration Bill, the government rejected a House of Lords amendment giving in-country asylum seekers a three days 'grace period' during which a claim for asylum after arrival in the UK could be made without loss of benefits. See A. Travis, 'Lords extend asylum grace', Guardian, 2 Jul. 1996, 3, A. Travis, 'Peers admit asylum bill defeat', Guardian, 23 Jul. 1996, 9 and 5 JCWI Bulletin No. 12 (1996) 2.
20. Above note 10. Section 11(2), however, makes one concession by providing the Secretary of State with the power to issue regulations permitting asylum seekers to recover back-dated benefits if their claims for asylum are successful. During the passage of the Asylum and Immigration Bill, the government rejected a House of Lords amendment giving in-country asylum seekers a three days 'grace period' during which a claim for asylum after arrival in the UK could be made without loss of benefits. See A. Travis, 'Lords extend asylum grace', Guardian, 2 Jul. 1996, 3, A. Travis, 'Peers admit asylum bill defeat', Guardian, 23 Jul. 1996, 9 and 5 JCWI Bulletin No. 12 (1996) 2.
21. Above note 10. Section 11(2), however, makes one concession by providing the Secretary of State with the power to issue regulations permitting asylum seekers to recover back-dated benefits if their claims for asylum are successful. During the passage of the Asylum and Immigration Bill, the government rejected a House of Lords amendment giving in-country asylum seekers a three days 'grace period' during which a claim for asylum after arrival in the UK could be made without loss of benefits. See A. Travis, 'Lords extend asylum grace', Guardian, 2 Jul. 1996, 3, A. Travis, 'Peers admit asylum bill defeat', Guardian, 23 Jul. 1996, 9 and 5 JCWI Bulletin No. 12 (1996) 2.
22. Judgment of 8 Oct. 1996, (QBD); The Times, 18 Oct. 1996 (transcript available on LEXIS).
23. Judgment of 8 Oct. 1996, (QBD); The Times, 18 Oct. 1996 (transcript available on LEXIS).
24. On this point, see M.K. Addo, 'The Legal Condition of Refugees in the United Kingdom', 7 Journal of Refugee Studies 96, 101 (1994). The difficulties of obtaining such employment are illustrated by the Refugee Council: 'Those [asylum seekers] whose work restrictions are lifted after six months find it very difficult to obtain employment due to language barriers, non-recognition of professional qualifications, unemployment levels and even discrimination by potential employers. There are also groups who are unable to work due to child care responsibilities, ill-health, or on grounds of age', Refugee Council Representations to the SSAC, above note 12, para. 9.6. A Home Office policy of preventing asylum seekers from working while awaiting the outcome of their appeals against a refusal of asylum was declared unlawful on the basis that it interfered with their appeal rights by depriving them of the opportunity of relieving their destitution and of obtaining sufficient funds to properly pursue their appeals. R v. Secretary of State for the Home Department, ex parte Jammeh, judgment of 31 Jul. 1997 (QBD), The Times, 11 Sept. 1997 (transcript available on LEXIS). As a result of this judgment, asylum appellants can now apply for permission to work, which should normally be granted. Permission to work, however, will not normally be granted to the dependants of asylum appellants unless there are exceptional circumstances. Home Office Letter to Susan Rowlands, Immigration Law Practitioners' Association (ILPA), 28 Aug. 1997.
25. On this point, see M.K. Addo, 'The Legal Condition of Refugees in the United Kingdom', 7 Journal of Refugee Studies 96, 101 (1994). The difficulties of obtaining such employment are illustrated by the Refugee Council: 'Those [asylum seekers] whose work restrictions are lifted after six months find it very difficult to obtain employment due to language barriers, non-recognition of professional qualifications, unemployment levels and even discrimination by potential employers. There are also groups who are unable to work due to child care responsibilities, ill-health, or on grounds of age', Refugee Council Representations to the SSAC, above note 12, para. 9.6. A Home Office policy of preventing asylum seekers from working while awaiting the outcome of their appeals against a refusal of asylum was declared unlawful on the basis that it interfered with their appeal rights by depriving them of the opportunity of relieving their destitution and of obtaining sufficient funds to properly pursue their appeals. R v. Secretary of State for the Home Department, ex parte Jammeh, judgment of 31 Jul. 1997 (QBD), The Times, 11 Sept. 1997 (transcript available on LEXIS). As a result of this judgment, asylum appellants can now apply for permission to work, which should normally be granted. Permission to work, however, will not normally be granted to the dependants of asylum appellants unless there are exceptional circumstances. Home Office Letter to Susan Rowlands, Immigration Law Practitioners' Association (ILPA), 28 Aug. 1997.
26. On this point, see M.K. Addo, 'The Legal Condition of Refugees in the United Kingdom', 7 Journal of Refugee Studies 96, 101 (1994). The difficulties of obtaining such employment are illustrated by the Refugee Council: 'Those [asylum seekers] whose work restrictions are lifted after six months find it very difficult to obtain employment due to language barriers, non-recognition of professional qualifications, unemployment levels and even discrimination by potential employers. There are also groups who are unable to work due to child care responsibilities, ill-health, or on grounds of age', Refugee Council Representations to the SSAC, above note 12, para. 9.6. A Home Office policy of preventing asylum seekers from working while awaiting the outcome of their appeals against a refusal of asylum was declared unlawful on the basis that it interfered with their appeal rights by depriving them of the opportunity of relieving their destitution and of obtaining sufficient funds to properly pursue their appeals. R v. Secretary of State for the Home Department, ex parte Jammeh, judgment of 31 Jul. 1997 (QBD), The Times, 11 Sept. 1997 (transcript available on LEXIS). As a result of this judgment, asylum appellants can now apply for permission to work, which should normally be granted. Permission to work, however, will not normally be granted to the dependants of asylum appellants unless there are exceptional circumstances. Home Office Letter to Susan Rowlands, Immigration Law Practitioners' Association (ILPA), 28 Aug. 1997.
27. On this point, see M.K. Addo, 'The Legal Condition of Refugees in the United Kingdom', 7 Journal of Refugee Studies 96, 101 (1994). The difficulties of obtaining such employment are illustrated by the Refugee Council: 'Those [asylum seekers] whose work restrictions are lifted after six months find it very difficult to obtain employment due to language barriers, non-recognition of professional qualifications, unemployment levels and even discrimination by potential employers. There are also groups who are unable to work due to child care responsibilities, ill-health, or on grounds of age', Refugee Council Representations to the SSAC, above note 12, para. 9.6. A Home Office policy of preventing asylum seekers from working while awaiting the outcome of their appeals against a refusal of asylum was declared unlawful on the basis that it interfered with their appeal rights by depriving them of the opportunity of relieving their destitution and of obtaining sufficient funds to properly pursue their appeals. R v. Secretary of State for the Home Department, ex parte Jammeh, judgment of 31 Jul. 1997 (QBD), The Times, 11 Sept. 1997 (transcript available on LEXIS). As a result of this judgment, asylum appellants can now apply for permission to work, which should normally be granted. Permission to work, however, will not normally be granted to the dependants of asylum appellants unless there are exceptional circumstances. Home Office Letter to Susan Rowlands, Immigration Law Practitioners' Association (ILPA), 28 Aug. 1997.
28. On this point, see M.K. Addo, 'The Legal Condition of Refugees in the United Kingdom', 7 Journal of Refugee Studies 96, 101 (1994). The difficulties of obtaining such employment are illustrated by the Refugee Council: 'Those [asylum seekers] whose work restrictions are lifted after six months find it very difficult to obtain employment due to language barriers, non-recognition of professional qualifications, unemployment levels and even discrimination by potential employers. There are also groups who are unable to work due to child care responsibilities, ill-health, or on grounds of age', Refugee Council Representations to the SSAC, above note 12, para. 9.6. A Home Office policy of preventing asylum seekers from working while awaiting the outcome of their appeals against a refusal of asylum was declared unlawful on the basis that it interfered with their appeal rights by depriving them of the opportunity of relieving their destitution and of obtaining sufficient funds to properly pursue their appeals. R v. Secretary of State for the Home Department, ex parte Jammeh, judgment of 31 Jul. 1997 (QBD), The Times, 11 Sept. 1997 (transcript available on LEXIS). As a result of this judgment, asylum appellants can now apply for permission to work, which should normally be granted. Permission to work, however, will not normally be granted to the dependants of asylum appellants unless there are exceptional circumstances. Home Office Letter to Susan Rowlands, Immigration Law Practitioners' Association (ILPA), 28 Aug. 1997.
29. See M. Feria, 'Commentaries on the Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations 1996', 10 INL & P 91, Annex, n. 4 (1996), referring to Health Circular HC(82)15.
30. In reporting on the original government proposals, the SSAC, above note 4, 21, para. 59, also anticipated the practical difficulties which asylum seekers without an address would face in registering with a family doctor.
31. See R v. London Borough of Hammersmith and Fulham, ex parte M, 30 HLR 10, The Times, 19 Feb. 1997.
32. See R v. London Borough of Hammersmith and Fulham, ex parte M, 30 HLR 10, The Times, 19 Feb. 1997.
33. There were 27,930 applications for asylum made in 1996 as compared with 43,965 in 1995. Hansard, H.C. Deb. on Asylum Seekers, 20 Feb. 1997, col. 1030 (Ms A. Widdecombe, former Home Office Minister).
34. Indeed, the statistics illustrate that asylum applications made after entry into the UK are likely to be more successful. In the four-year period 1992-95, 3,445 in-country claimants (or 71.3 per cent of all successful applicants) were granted asylum in comparison to 1,385 port claimants. See Amnesty International, Slamming The Door. The Demolition of the Right to Asylum in the UK, April 1996, 16. These figures clearly indicate that a significant number of in-country applicants are genuine (even by rigorous Home Office standards). Moreover, although only 4 per cent of appeals were successful in 1994, Amnesty has pointed out that this amounted to 95 men and women (including their dependants) and that to deny benefits for this group for the average 9.8 months that it takes between refusal of the asylum application and the determination of the appeal effectively nullifies their ability to pursue an appeal. Ibid. 19-20, citing statistics from Home Office Statistical Bulletin 15/95, Table 8.3 and Hansard, H.C., 8 Feb. 1996, col. 310 (written answer). As at 1 Jan. 1998, the average time for appeals to be determined was 10.3 months. Hansard, H.C., 26 Jan. 1998, col. 51 (written answer).
35. Indeed, the statistics illustrate that asylum applications made after entry into the UK are likely to be more successful. In the four-year period 1992-95, 3,445 in-country claimants (or 71.3 per cent of all successful applicants) were granted asylum in comparison to 1,385 port claimants. See Amnesty International, Slamming The Door. The Demolition of the Right to Asylum in the UK, April 1996, 16. These figures clearly indicate that a significant number of in-country applicants are genuine (even by rigorous Home Office standards). Moreover, although only 4 per cent of appeals were successful in 1994, Amnesty has pointed out that this amounted to 95 men and women (including their dependants) and that to deny benefits for this group for the average 9.8 months that it takes between refusal of the asylum application and the determination of the appeal effectively nullifies their ability to pursue an appeal. Ibid. 19-20, citing statistics from Home Office Statistical Bulletin 15/95, Table 8.3 and Hansard, H.C., 8 Feb. 1996, col. 310 (written answer). As at 1 Jan. 1998, the average time for appeals to be determined was 10.3 months. Hansard, H.C., 26 Jan. 1998, col. 51 (written answer).
36. Indeed, the statistics illustrate that asylum applications made after entry into the UK are likely to be more successful. In the four-year period 1992-95, 3,445 in-country claimants (or 71.3 per cent of all successful applicants) were granted asylum in comparison to 1,385 port claimants. See Amnesty International, Slamming The Door. The Demolition of the Right to Asylum in the UK, April 1996, 16. These figures clearly indicate that a significant number of in-country applicants are genuine (even by rigorous Home Office standards). Moreover, although only 4 per cent of appeals were successful in 1994, Amnesty has pointed out that this amounted to 95 men and women (including their dependants) and that to deny benefits for this group for the average 9.8 months that it takes between refusal of the asylum application and the determination of the appeal effectively nullifies their ability to pursue an appeal. Ibid. 19-20, citing statistics from Home Office Statistical Bulletin 15/95, Table 8.3 and Hansard, H.C., 8 Feb. 1996, col. 310 (written answer). As at 1 Jan. 1998, the average time for appeals to be determined was 10.3 months. Hansard, H.C., 26 Jan. 1998, col. 51 (written answer).
37. Indeed, the statistics illustrate that asylum applications made after entry into the UK are likely to be more successful. In the four-year period 1992-95, 3,445 in-country claimants (or 71.3 per cent of all successful applicants) were granted asylum in comparison to 1,385 port claimants. See Amnesty International, Slamming The Door. The Demolition of the Right to Asylum in the UK, April 1996, 16. These figures clearly indicate that a significant number of in-country applicants are genuine (even by rigorous Home Office standards). Moreover, although only 4 per cent of appeals were successful in 1994, Amnesty has pointed out that this amounted to 95 men and women (including their dependants) and that to deny benefits for this group for the average 9.8 months that it takes between refusal of the asylum application and the determination of the appeal effectively nullifies their ability to pursue an appeal. Ibid. 19-20, citing statistics from Home Office Statistical Bulletin 15/95, Table 8.3 and Hansard, H.C., 8 Feb. 1996, col. 310 (written answer). As at 1 Jan. 1998, the average time for appeals to be determined was 10.3 months. Hansard, H.C., 26 Jan. 1998, col. 51 (written answer).
38. Indeed, the statistics illustrate that asylum applications made after entry into the UK are likely to be more successful. In the four-year period 1992-95, 3,445 in-country claimants (or 71.3 per cent of all successful applicants) were granted asylum in comparison to 1,385 port claimants. See Amnesty International, Slamming The Door. The Demolition of the Right to Asylum in the UK, April 1996, 16. These figures clearly indicate that a significant number of in-country applicants are genuine (even by rigorous Home Office standards). Moreover, although only 4 per cent of appeals were successful in 1994, Amnesty has pointed out that this amounted to 95 men and women (including their dependants) and that to deny benefits for this group for the average 9.8 months that it takes between refusal of the asylum application and the determination of the appeal effectively nullifies their ability to pursue an appeal. Ibid. 19-20, citing statistics from Home Office Statistical Bulletin 15/95, Table 8.3 and Hansard, H.C., 8 Feb. 1996, col. 310 (written answer). As at 1 Jan. 1998, the average time for appeals to be determined was 10.3 months. Hansard, H.C., 26 Jan. 1998, col. 51 (written answer).
39. For example, in 1997, out of a total of 36,045 initial decisions, asylum was granted in only 3,985 cases (11 per cent). However, 3,115 applicants (9 per cent) were also granted exceptional leave to remain. Hansard, H.C., 19 Jan. 1998, col. 385 (written answer).
40. See SSAC Report, above note 4, 22, para. 63 . See also Slamming the Door, above note 23, 47 and Refugee Council Representations to the SSAC, above note 11, para. 4.2.
41. See SSAC Report, above note 4, 22, para. 63 . See also Slamming the Door, above note 23, 47 and Refugee Council Representations to the SSAC, above note 11, para. 4.2.
42. See SSAC Report, above note 4, 22, para. 63 . See also Slamming the Door, above note 23, 47 and Refugee Council Representations to the SSAC, above note 11, para. 4.2.
43. See above note 1 (Simon Brown and Waite LJJ; Neill LJ dissenting).
44. Section 6 and Sch. 2.
45. Above note 1, 402c.
46. 5 JCWI Bulletin No. 12, 6 (1996).
47. 29 HLR 147, judgment of 25 Jun. 1996 (CA); Neill, Simon Brown and Waite LJJ.
48. Judgment of 18 April 1996 (QBD); The Times, 1 May 1996 (transcript available on LEXIS).
49. Judgment of 18 April 1996 (QBD); The Times, 1 May 1996 (transcript available on LEXIS).
50. Ibid, (application of the ejusdem generis rule of statutory interpretation).
51. Section 9, which came into force on 19 Aug. 1996 (SI 1996 No. 1982). The Court of Appeal held that s. 9 does not have retrospective effect, with the result that asylum seekers provided accommodation by housing authorities under the homelessness legislation before 19 Aug. 1996 are entitled to continue to occupy that accommodation or alternative accommodation. The entry into force of the new legislation does not constitute a new circumstance, which a housing authority could regard as a reasonable ground for reconsidering its earlier decision. See R v. Hackney London Borough Council, ex parte K, judgment of 20 Oct. 1997, 30 HLR 760, The Times, 17 Nov. 1997.
52. Section 9, which came into force on 19 Aug. 1996 (SI 1996 No. 1982). The Court of Appeal held that s. 9 does not have retrospective effect, with the result that asylum seekers provided accommodation by housing authorities under the homelessness legislation before 19 Aug. 1996 are entitled to continue to occupy that accommodation or alternative accommodation. The entry into force of the new legislation does not constitute a new circumstance, which a housing authority could regard as a reasonable ground for reconsidering its earlier decision. See R v. Hackney London Borough Council, ex parte K, judgment of 20 Oct. 1997, 30 HLR 760, The Times, 17 Nov. 1997.
53. See above note 21; Lord Woolf, MR, Waite and Henry LJJ.
54. Indeed, two of the applications were lodged on the day of arrival, but after entry.
55. The central purpose of this piece of legislation was, in the view of Collins J at first instance, above note 17, 'to supersede the existing poor law [dating back to the 17th century] and to provide that those in need should have access to state benefits for the relief of poverty and to accommodation and other services to be provided by local authorities'.
56. Particular problems are faced by local authorities in London because of a concentration of asylum seekers in the capital. However, plans by some local authorities to move asylum seekers to cheaper hotel accommodation outside of London were effectively thwarted by the High Court judgment in R v. Newham London Borough Council, ex parte Medical Foundation for the Care of Victims of Torture and Others, judgment of 12 Dec. 1997, 30 HLR 955, The Times, 26 Dec. 1997. In this case, Mr Justice Moses held that board and other services provided by local authorities in connection with 'residential accommodation' under s. 21 did not have to be provided with the residential accommodation itself, thus defeating the Council's claim that it had run out of bed and breakfast accommodation and therefore had to resort to making use of such accommodation outside of the Borough.
57. Particular problems are faced by local authorities in London because of a concentration of asylum seekers in the capital. However, plans by some local authorities to move asylum seekers to cheaper hotel accommodation outside of London were effectively thwarted by the High Court judgment in R v. Newham London Borough Council, ex parte Medical Foundation for the Care of Victims of Torture and Others, judgment of 12 Dec. 1997, 30 HLR 955, The Times, 26 Dec. 1997. In this case, Mr Justice Moses held that board and other services provided by local authorities in connection with 'residential accommodation' under s. 21 did not have to be provided with the residential accommodation itself, thus defeating the Council's claim that it had run out of bed and breakfast accommodation and therefore had to resort to making use of such accommodation outside of the Borough.
58. See above notes 17 and 21.
59. As at 17 Oct. 1997, 6,707 single adult asylum seekers and 4,006 families were being supported by local authorities in London. See Hansard, H.C., 3 Nov. 1997, col. 75 (written answer).
60. From 5 Feb. 1998, local authorities can claim their full costs up to a limit of 165 per week for each adult asylum seeker supported. Migration News Sheet, Mar. 1998, 12.
61. Refugee Council, Just Existence: A Report on the Lives of Asylum Seekers who have lost Entitlements to Benefits in the UK, Feb. 1997, 3 [hereinafter Just Existence).
62. Ibid., 41.
63. Above note 17.
64. Just Existence, above note 41, 35, 36. A failure to address such needs was exacerbated by the High Court's confirmation of Department of Health policy that local authorities had no power to make direct cash payments to asylum seekers under s. 21 of the 1948 Act and that assistance under the statute could only be provided in kind. R v. Secretary of State for Health, ex parte Hammersmith and Fulham London Borough Council and Others, judgment of 9 July 1997, 30 HLR 525, The Times, 31 July 1997.
65. Just Existence, above note 41, 35, 36. A failure to address such needs was exacerbated by the High Court's confirmation of Department of Health policy that local authorities had no power to make direct cash payments to asylum seekers under s. 21 of the 1948 Act and that assistance under the statute could only be provided in kind. R v. Secretary of State for Health, ex parte Hammersmith and Fulham London Borough Council and Others, judgment of 9 July 1997, 30 HLR 525, The Times, 31 July 1997.
66. Just Existence, above note 41, 35, 36. A failure to address such needs was exacerbated by the High Court's confirmation of Department of Health policy that local authorities had no power to make direct cash payments to asylum seekers under s. 21 of the 1948 Act and that assistance under the statute could only be provided in kind. R v. Secretary of State for Health, ex parte Hammersmith and Fulham London Borough Council and Others, judgment of 9 July 1997, 30 HLR 525, The Times, 31 July 1997.
67. Just Existence, ibid., 34, 38.
68. Ibid., 37, 41.
69. Ibid., 41.
70. See M. C. R. Craven, 'The Domestic Application of the International Covenant on Economic, Social and Cultural Rights', 40 NILR 367, 371-2 (1993) and V. A. Leary, International Labour Conventions and National Law, The Hague: Martinus Nijhoff, 1982, 35-8.
71. See M. C. R. Craven, 'The Domestic Application of the International Covenant on Economic, Social and Cultural Rights', 40 NILR 367, 371-2 (1993) and V. A. Leary, International Labour Conventions and National Law, The Hague: Martinus Nijhoff, 1982, 35-8.
72. R v. Secretary of State for the Home Department, ex parte Brind [1991] 2 WLR 588 (HL) 591-2 (per Lord Bridge). Treaties accepted by the UK may also be relied upon by the courts to develop the common law. See Craven, above note 48, 372.
73. See, for example, T. Bingham, 'The European Convention on Human Rights: Time to Incorporate', 109 LQA 390 (1993). European Convention on Human Rights, 4 Nov. 1950; Council of Europe ETS No. 5; entry into force 3 Sept. 1953; ratified by 39 States at 2 Apr. 1998.
74. See, for example, T. Bingham, 'The European Convention on Human Rights: Time to Incorporate', 109 LQA 390 (1993). European Convention on Human Rights, 4 Nov. 1950; Council of Europe ETS No. 5; entry into force 3 Sept. 1953; ratified by 39 States at 2 Apr. 1998.
75. See, for example, T. Bingham, 'The European Convention on Human Rights: Time to Incorporate', 109 LQA 390 (1993). European Convention on Human Rights, 4 Nov. 1950; Council of Europe ETS No. 5; entry into force 3 Sept. 1953; ratified by 39 States at 2 Apr. 1998.
76. Human Rights Bill 1997/98. For the Government White Paper explaining the Bill, see Rights Brought Home: The Human Rights Bill, Cm 3782 (Oct. 1997).
77. It can be argued, however, that this is now rather a simplistic assessment in the light of the impact of EC law. In effect, the European Communities Act 1972, which incorporates EC law into UK law, constitutes a 'semi-entrenchment' of EC law. See R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603, 659 (per Lord Bridge).
78. Section 2, which is entitled: 'Primacy of the Convention'.
79. Macdonald & Blake, above note 24, 375, para. 12.5, assert that the 1993 Act 'incorporates the [CSR51 and CSRP67] into UK law'. However, in ex parte B, Beldam LJ in the Divisional Court held the contrary view: 'Neither the Convention nor the Handbook [UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, 1979] issued under it have been incorporated into English law though clearly the 1993 Act was passed with a view to ensuring that the United Kingdom's obligations to asylum seekers were fulfilled. It is, however, the Act and not the Convention which has the force of law in the United Kingdom'. R v Secretary of State for Social Security, ex parte JCWI and ex parte B, unreported, judgment of 26 March 1996, (transcript available on LEXIS).
80. Macdonald & Blake, above note 24, 375, para. 12.5, assert that the 1993 Act 'incorporates the [CSR51 and CSRP67] into UK law'. However, in ex parte B, Beldam LJ in the Divisional Court held the contrary view: 'Neither the Convention nor the Handbook [UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, 1979] issued under it have been incorporated into English law though clearly the 1993 Act was passed with a view to ensuring that the United Kingdom's obligations to asylum seekers were fulfilled. It is, however, the Act and not the Convention which has the force of law in the United Kingdom'. R v Secretary of State for Social Security, ex parte JCWI and ex parte B, unreported, judgment of 26 March 1996, (transcript available on LEXIS).
81. Macdonald & Blake, above note 24, 375, para. 12.5, assert that the 1993 Act 'incorporates the [CSR51 and CSRP67] into UK law'. However, in ex parte B, Beldam LJ in the Divisional Court held the contrary view: 'Neither the Convention nor the Handbook [UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, 1979] issued under it have been incorporated into English law though clearly the 1993 Act was passed with a view to ensuring that the United Kingdom's obligations to asylum seekers were fulfilled. It is, however, the Act and not the Convention which has the force of law in the United Kingdom'. R v Secretary of State for Social Security, ex parte JCWI and ex parte B, unreported, judgment of 26 March 1996, (transcript available on LEXIS).
82. J.C. Hathaway & J.A. Dent, Refugee Rights: Report on a Comparative Survey, Toronto: York Lanes Press, 1995, 5.
83. Khaboka v. Secretary of State for the Home Department [1993] Imm. AR 484 (CA), 487 (per Nolan LJ).
84. Above note 1, 398hj-9a (cited by Simon Brown LJ).
85. Ibid., 393d. Emphasis added.
86. Ibid., 402b.
87. In this regard, see General Conclusion No. 81 (XLVIII) 1997 on International Protection of the Executive Committee of the High Commissioner of Refugees (EXCOM), reaffirming 'the fundamental importance of the principle of non-refoulement, which prohibits expulsion and return of refugees, in any manner whatsoever, to the frontiers of territories where their lives or freedom would be threatened . . . (para. i)'. Emphasis added.
88. Sale v. Haitian Centers Council, (1993) 113 S. Ct 2549. The Supreme Court ruled that the principle of non-refoulement did not apply extra-territorially to the US practice of intercepting Haitian asylum seekers on the high seas and returning them to Haiti without a screening of their claims.
89. Cf. Refugee Council Representations to the SSAC, above note 11, para. 7.9.
90. Universal Declaration of Human Rights, UNGA res. 217A (III), 10 Dec. 1948. Emphasis added.
91. See Hathaway & Dent, above note 55, 13-14: 'Although they may not violate article 33 directly, visa requirements and carrier sanctions increase the risk of refoulement, and effectively undermine the most fundamental purposes of the Convention'. Ibid., 14 (footnotes omitted).
92. J. C. Hathaway, 'Preface (Symposium on the Human Rights of Refugees)', 17 JRS 79, 79 (1994).
93. Arts. 17, 21, 23 and 24 respectively.
94. See also G.S. Goodwin-Gill, The Refugee in International Law, 2nd ed., Oxford: Clarendon Press, 1996, 298-9 (1996).
95. Ibid., 308.
96. Ibid., 309 (footnote omitted). See also the views of Hathaway and Dent, above note 55, 25 and 31, based on the travaux préparatoires, with regard to arts. 17, 23 and 24.
97. Ibid., 309 (footnote omitted). See also the views of Hathaway and Dent, above note 55, 25 and 31, based on the travaux préparatoires, with regard to arts. 17, 23 and 24.
98. See, for example, the view of ILPA: '[T]here is a respectable body of opinion that [the provision relating to public relief and assistance] applies to those who are refugees even if they are not yet recognised as such'. ILPA, Representations to the Social Security Advisory Committee on the Draft Regulations, 9 Nov. 1995, 4, cited by Cracknell, above note 12, 14.
99. Simon Brown LJ, above note 1, 401h: '[N]o obligation arises under art 24 of the 1951 Convention [national treatment regarding social security] until asylum seekers are recognised as refugees'.
100. Slamming the Door, above note 23, 43, citing the UK government's own figures from Hansard, E.C., 8 Feb. 1996, col. 310 (written answer).
101. Slamming the Door, above note 23, 43, citing the UK government's own figures from Hansard, E.C., 8 Feb. 1996, col. 310 (written answer).
102. Government figures indicate that 4,460 applications for asylum made before 1992 were still awaiting a decision in March 1997. Hansard, H.C., 20 Mar. 1997, col. 835 (written answer).
103. A number of arguments in this section are drawn from Ch. 2 of the author's Migrant Workers in International Human Rights Law.
104. 16 Dec. 1966; 999 UNTS 171; entered into force 23 March 1976; ratified by 140 States, including the UK, at 2 Mar. 1998. The UK, however, has not accepted the individual communications procedure under the Optional Protocol to the ICCPR66: 999 UNTS 171; adopted 16 Dec. 1977; entry into force 23 March 1976; ratified by 93 States at 2 Mar. 1998.
105. 16 Dec. 1966; 999 UNTS 171; entered into force 23 March 1976; ratified by 140 States, including the UK, at 2 Mar. 1998. The UK, however, has not accepted the individual communications procedure under the Optional Protocol to the ICCPR66: 999 UNTS 171; adopted 16 Dec. 1977; entry into force 23 March 1976; ratified by 93 States at 2 Mar. 1998.
106. Some rights in the ICCPR66 are expressly limited to citizens, such as political rights in art. 25 ICCPR66. See also art. 16 ECHR50, which reads: 'Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens'. The clauses enumerated are respectively concerned with the rights to freedom of expression, peaceful assembly and association, and the right to non-discrimination.
107. See art. 2(1) ICCPR66 and art. 14 ECHR50, respectively. The terms in parenthesis are those found in art. 14 ECHR50.
108. General Comment 15/17 on the Position of Aliens under the Covenant (adopted 27th Sess., 1986), reproduced in UN doc. A/41/40, Annex VI, paras. 1 and 2. The Committee is empowered to issue General Comments under art. 40(4) ICCPR66. These Comments are not legally binding, but constitute authoritative interpretations of ICCPR66's provisions. See M. Nowak, U.N. Covenant an Civil and Political Rights: CCPR Commentary, Kehl: N.P. Engel, 1993, xxiv, para. 21.
109. General Comment 15/17, above note 78, paras. 5 and 6.
110. See in particular Communication No. 172/1984, Broeks v. the Netherlands; UN doc. CCPR/C/ 29/D/172/1984 (1987), Communication No. 180/1994, Danning v. the Netherlands, UN doc. CCPR/ C/29/D/180/1994 (1987), and Communication No. 182/1984, Zwaan-de Vries v. the Netherlands; UN doc. CCPR/C/29/D/182/1984 (1987). For a discussion of these views, see C. Scott, 'The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights', 27 Osgoode Hall L.J. 769, 852-9 (1989) and Nowak, above note 78, 470-2, who also examines subsequent views of the Committee.
111. See in particular Communication No. 172/1984, Broeks v. the Netherlands; UN doc. CCPR/C/ 29/D/172/1984 (1987), Communication No. 180/1994, Danning v. the Netherlands, UN doc. CCPR/ C/29/D/180/1994 (1987), and Communication No. 182/1984, Zwaan-de Vries v. the Netherlands; UN doc. CCPR/C/29/D/182/1984 (1987). For a discussion of these views, see C. Scott, 'The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights', 27 Osgoode Hall L.J. 769, 852-9 (1989) and Nowak, above note 78, 470-2, who also examines subsequent views of the Committee.
112. See in particular Communication No. 172/1984, Broeks v. the Netherlands; UN doc. CCPR/C/ 29/D/172/1984 (1987), Communication No. 180/1994, Danning v. the Netherlands, UN doc. CCPR/ C/29/D/180/1994 (1987), and Communication No. 182/1984, Zwaan-de Vries v. the Netherlands; UN doc. CCPR/C/29/D/182/1984 (1987). For a discussion of these views, see C. Scott, 'The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights', 27 Osgoode Hall L.J. 769, 852-9 (1989) and Nowak, above note 78, 470-2, who also examines subsequent views of the Committee.
113. General Comment 18/37 on Non-discrimination (adopted 37th Session, 1989), reproduced in UN doc. A/45/40, Annex VI, Section A, para. 12.
114. Communication No. 196/1985, Gueye et al v. France, cited by Nowak, above note 78, 472, 479. The Committee ruled that 'nationality' falls within the scope of the open-ended ground 'other status' in art 26.
115. 16 Dec. 1966; 993 UNTS 3; entry into force 3 Jan. 1976 ; ratified by 137 States at 2 Mar. 1998.
116. 16 Dec. 1966; 993 UNTS 3; entry into force 3 Jan. 1976 ; ratified by 137 States at 2 Mar. 1998.
117. 16 Dec. 1966; 993 UNTS 3; entry into force 3 Jan. 1976 ; ratified by 137 States at 2 Mar. 1998.
118. These differences, which I have considered in more depth elsewhere (Migrant Workers in International Human Rights Law, above note 74, 57-8), centre upon the lack of clear open-ended language as to the prohibited grounds of discrimination enumerated in art. 2(2). The provision reads: 'The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.' Emphasis added. The Limburg Principles on the Implementation of ICESCR66 (UN doc. E/CN.4/1987/17, Annex), drafted by a group of international experts at Maastricht in June 1986, assert unequivocally that 'the grounds of discrimination mentioned in article 2(2) are not exhaustive' (Principle 36). The Limburg Principles have been reproduced in (1987) 9 HRQ 122. Art. 2(2) should also be read in the context of an explicit restriction on the economic rights of non-citizens in the clause that follows, art. 2(3): 'Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals'. The very existence of this clause, however, appears to confirm that ICESCR66 does apply to non-citizens.
119. These differences, which I have considered in more depth elsewhere (Migrant Workers in International Human Rights Law, above note 74, 57-8), centre upon the lack of clear open-ended language as to the prohibited grounds of discrimination enumerated in art. 2(2). The provision reads: 'The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.' Emphasis added. The Limburg Principles on the Implementation of ICESCR66 (UN doc. E/CN.4/1987/17, Annex), drafted by a group of international experts at Maastricht in June 1986, assert unequivocally that 'the grounds of discrimination mentioned in article 2(2) are not exhaustive' (Principle 36). The Limburg Principles have been reproduced in (1987) 9 HRQ 122. Art. 2(2) should also be read in the context of an explicit restriction on the economic rights of non-citizens in the clause that follows, art. 2(3): 'Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals'. The very existence of this clause, however, appears to confirm that ICESCR66 does apply to non-citizens.
120. See, for example, the approach taken by the European Court of Human Rights in the Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), judgment of 23 July 1968, Eur. Ct. H.R., 1968, Ser. A, No. 6, 1 EHRR 241 (1979-80).
121. See, for example, Zwaan-de Vries, above note 80, para. 13. See also General Comment 18/37, above note 81, para. 13.
122. See SSAC Report, above note 4, 15, para. 25. See also Refugee Council Representations to the SSAC, above note 11, para. 15.4. However, the Conservative government rejected this allegation adding that guidance would be provided to ensure that the operation of the benefits' exclusions did not lead to racial or any other discrimination. See Statement to the SSAC, above note 4, para. 56.
123. See SSAC Report, above note 4, 15, para. 25. See also Refugee Council Representations to the SSAC, above note 11, para. 15.4. However, the Conservative government rejected this allegation adding that guidance would be provided to ensure that the operation of the benefits' exclusions did not lead to racial or any other discrimination. See Statement to the SSAC, above note 4, para. 56.
124. See SSAC Report, above note 4, 15, para. 25. See also Refugee Council Representations to the SSAC, above note 11, para. 15.4. However, the Conservative government rejected this allegation adding that guidance would be provided to ensure that the operation of the benefits' exclusions did not lead to racial or any other discrimination. See Statement to the SSAC, above note 4, para. 56.
125. Above note 17.
126. An exception for the death penalty is also provided for in art. 6(2) ICCPR66. See however the Second Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty. 15 Dec. 1989; UNGA Res. 44/128; entry into force 11 Jul. 1991; ratified by 32 States at 2 Mar. 1998. For expressions of the right to life elsewhere, see art. 3 of the UDHR, art. 4 of the American Convention on Human Rights (OAS Treaty Series No. 36) and art. 4 of the African Charter on Human and People's Rights (OAU Doc. CAB/LEG/67/3/Rev.5).
127. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
128. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
129. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
130. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
131. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
132. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
133. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
134. For example, the European Court of Human Rights recently observed: 'Article 2 ranks as one of the most fundamental provisions in the Convention . . . Together, with Article 3 of the Convention [discussed in Section 4.4 below], it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed'. See McCann and Others v. UK, judgment of 27 Sept. 1995, Eur. Ct. H.R., 1995, Ser. A, No. 234, 21 EHRR 97 (1996), para. 147, in which the Court found a violation of the right to life in respect of the shooting of three terrorist suspects by UK Special Air Services (SAS). For academic confirmation of the fundamental nature of the right to life, see: B.G. Ramcharan, 'The Concept and Dimensions of the Right to Life', in B.G. Ramcharan, ed., The Right to Life in International Law, Dordrecht: Martinus Nijhoff, 1985, 1, 2; F. Menghistu, 'The Satisfaction of Survival Requirements', in The Right To Life In International Law, ibid., 63; Nowak, above note 78, 104; S. Joseph, 'The Right to Life', in D. Harris & S. Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, 155; F.G. Jacobs & R. White, The European Convention on Human Rights, 2nd ed., Oxford: Clarendon Press, 1996, 41; D. Harris, 'The Right to Life under the European Convention on Human Rights', 1 Maastricht J. Eur. & Comp. L. 122 (1994).
135. H. A. Kabaalioglu, 'The Obligations to "Respect" and to "Ensure" the Right to Life', in The Right To Life in International Law, above note 90, 160, 161. See also Ramcharan, above note 90, 3, who advances the argument (ibid., 14-15) that the right to life qualifies as a peremptory norm or jus cogens in international law.
136. H. A. Kabaalioglu, 'The Obligations to "Respect" and to "Ensure" the Right to Life', in The Right To Life in International Law, above note 90, 160, 161. See also Ramcharan, above note 90, 3, who advances the argument (ibid., 14-15) that the right to life qualifies as a peremptory norm or jus cogens in international law.
137. General Comment 6/16 on art. 6 (adopted 16th Sess., 1982), reproduced in UN doc. A/37/ 40, Annex V, para. 1. Although art. 4(1) allows for derogation from some of the rights in the ICCPR 'in time of public emergency which threatens the life of the nation', the right to life in art. 6 is excluded by art. 4(2). Similarly, under the ECHR, the right to life is recognized as a non-derogable right by virtue of art. 15(2).
138. General Comment 6/16, ibid., para. 5.
139. 21 EHRR 135 (1996), para. 187. The Court did not elaborate upon this argument. It merely noted, above note 90, para. 151, the argument of the applicants that art. 2(1) ECHR50 'imposed a positive duty on States to "protect" life'.
140. See D.J. Harris, M. O'Boyle & C. Warbrick, Law of The European Convention on Human Rights, London: Butterworths, 1995, 40. In Application 16593/90, Tavares v. France, decision of 12 Sept. 1991 (unpublished), the applicant argued that France was in violation of art. 2 in respect of the death of his wife as a result of serious complications following the delivery of a child. The Commission found no violation, but recognized that the right to life involves a State obligation to take measures in order to protect life. This decision is discussed by Pellonpää, who contends that its implication 'clearly is that certain regulatory measures, aimed at protecting life, concerning the hospital system were inherent in Article 2 . . .' See M. Pellonpää, 'Economic, Social and Cultural Rights', in R.StJ. Macdonald, F. Matscher & H. Petzold, eds., The European System of the Protection of Human Rights, Dordrecht: Martinus Nijhoff, 1993, 855, 865.
141. See D.J. Harris, M. O'Boyle & C. Warbrick, Law of The European Convention on Human Rights, London: Butterworths, 1995, 40. In Application 16593/90, Tavares v. France, decision of 12 Sept. 1991 (unpublished), the applicant argued that France was in violation of art. 2 in respect of the death of his wife as a result of serious complications following the delivery of a child. The Commission found no violation, but recognized that the right to life involves a State obligation to take measures in order to protect life. This decision is discussed by Pellonpää, who contends that its implication 'clearly is that certain regulatory measures, aimed at protecting life, concerning the hospital system were inherent in Article 2 . . .' See M. Pellonpää, 'Economic, Social and Cultural Rights', in R.StJ. Macdonald, F. Matscher & H. Petzold, eds., The European System of the Protection of Human Rights, Dordrecht: Martinus Nijhoff, 1993, 855, 865.
142. Harris, O'Boyle & Warbrick, above note 95, 41.
143. This argument has been forcefully and eloquently presented by Ramcharan, above note 90, 6: 'The duty of the State to assure satisfaction of the survival requirements of every person within its jurisdiction must be considered an unavoidable component of the right to life in its modern sense. Any other conclusion is unacceptable in a world in which millions of children die each year on account of hunger and disease, and in which millions of human beings have their life-span drastically reduced for the same reasons'.
144. See D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford: Clarendon Press, 1994, 347, para. 8.27. To some extent, this argument is buttressed by the paucity of individual communications under the Optional Protocol addressing this aspect of the right to life. However, see Communication 67/1980, EHP v. Canada (cited by McGoldrick, ibid. 346, para. 8.26.1, and Joseph, above note 90, 175) concerning complaints by the applicants alleging that their right to life was threatened by the storage of radioactive nuclear waste in the vicinity of their homes. Although the communication was declared inadmissible for non-exhaustion of domestic remedies, the Human Rights Committee, ibid., para. 8, recognized that it raised 'serious issues with regard to the obligation of States parties to protect human life'.
145. See D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford: Clarendon Press, 1994, 347, para. 8.27. To some extent, this argument is buttressed by the paucity of individual communications under the Optional Protocol addressing this aspect of the right to life. However, see Communication 67/1980, EHP v. Canada (cited by McGoldrick, ibid. 346, para. 8.26.1, and Joseph, above note 90, 175) concerning complaints by the applicants alleging that their right to life was threatened by the storage of radioactive nuclear waste in the vicinity of their homes. Although the communication was declared inadmissible for non-exhaustion of domestic remedies, the Human Rights Committee, ibid., para. 8, recognized that it raised 'serious issues with regard to the obligation of States parties to protect human life'.
146. See D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford: Clarendon Press, 1994, 347, para. 8.27. To some extent, this argument is buttressed by the paucity of individual communications under the Optional Protocol addressing this aspect of the right to life. However, see Communication 67/1980, EHP v. Canada (cited by McGoldrick, ibid. 346, para. 8.26.1, and Joseph, above note 90, 175) concerning complaints by the applicants alleging that their right to life was threatened by the storage of radioactive nuclear waste in the vicinity of their homes. Although the communication was declared inadmissible for non-exhaustion of domestic remedies, the Human Rights Committee, ibid., para. 8, recognized that it raised 'serious issues with regard to the obligation of States parties to protect human life'.
147. According to Menghistu, above note 90, 67, the extent of the obligation upon States parties to protect economic and social rights under art. 6 ICCPR66 would seem to relate only to survival requirements and not to the higher standard found in art. 11 ICESCR66 (discussed in Section 4.5.2 below) requiring States parties to 'recognize the right of everyone to an adequate standard of living . . ., including adequate food, clothing and housing . . .' Although the 1996 Regulations and the AIA 1996 arguably constitute in themselves a violation of this lesser duty, it would seem that, for the moment at least, the 'survival requirements' of asylum seekers are being met (though barely) as a result of the ex parte M decision. This does not mean, however, that the UK is not in violation of other international human rights commitments.
148. Above note 30, 158.
149. As with the right to life in art. 2, no derogations are permitted from art. 3. See art. 15(2).
150. Applications Nos. 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/ 70, 4486/70, 4501/70 and 4526/70-4530/70, East African Asians v. UK (Report of the Eur. Comm. H.R., 14 Dec. 1973). This report was only made public, at the request of the UK, on 21 March 1994. See Doc. 78-A DR 70. The report is reprinted in 15 HRLJ 215 (1994). For a concise overview of the background to this case and the report of the Commission, see Jacobs & White, above note 90, 64-6.
151. Applications Nos. 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/ 70, 4486/70, 4501/70 and 4526/70-4530/70, East African Asians v. UK (Report of the Eur. Comm. H.R., 14 Dec. 1973). This report was only made public, at the request of the UK, on 21 March 1994. See Doc. 78-A DR 70. The report is reprinted in 15 HRLJ 215 (1994). For a concise overview of the background to this case and the report of the Commission, see Jacobs & White, above note 90, 64-6.
152. Applications Nos. 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/ 70, 4486/70, 4501/70 and 4526/70-4530/70, East African Asians v. UK (Report of the Eur. Comm. H.R., 14 Dec. 1973). This report was only made public, at the request of the UK, on 21 March 1994. See Doc. 78-A DR 70. The report is reprinted in 15 HRLJ 215 (1994). For a concise overview of the background to this case and the report of the Commission, see Jacobs & White, above note 90, 64-6.
153. East African Asians, above note 102, para. 189.
154. Ibid., para. 195. See The Greek Case, 12 YBECHR 1 (1969), 186 (Report of 5 Nov. 1969).
155. Ibid., para. 195. See The Greek Case, 12 YBECHR 1 (1969), 186 (Report of 5 Nov. 1969).
156. Ibid., para. 196. The admissibility decisions of 10 Oct. and 18 Dec. 1970 are reported in 13 YBECHR 928 (1970), 994.
157. Ibid., para. 207.
158. Abdulaziz, Cabales and Balkandali v. UK, judgment of 28 May 1985, Eur. Ct. H.R., 1985, Ser. A, No. 94, 7 EHRR 471 (1986), paras. 90 and 91. See also Jacobs & White, above note 90, 66. However, the Court did find a violation of art. 8 (respect for private and family life) taken together with art. 14 (non-discrimination on the ground of sex) because the immigration rules made it more difficult for husbands to enter the UK to join their wives than for wives to join their husbands.
159. Indeed, Jacobs & White, ibid., recognize that the 'tenor of the judgment [in Abdulaziz, Cobales and Balkandali] is such that, if the difference of treatment did indicate contempt or lack of respect for the personality of the applicants, that may meet the level of severity necessary to constitute degrading treatment'. It has also been suggested that 'general socio-economic conditions' is one area to which the ECHR organs might explore the possibility of applying art. 3. See A. Cassese, 'Prohibition of Torture and Inhuman or Degrading Treatment or Punishment', in The European System of the Protection of Human Rights, above note 95, 225, 260. In Application 23634/94, Tanko v. Finland, 77-A D & R 133 (1994), the applicant alleged that the enforcement of his expulsion to Ghana would subject him to a risk of losing his eyesight given the less adequate medical facilities for his treatment in that country. The Commission, ibid. 137, stated that it did 'not exclude that a lack of proper care in a case where someone is suffering from a serious illness could in certain circumstances amount to treatment contrary to Article 3', although it found that this had not been established in the application before it.
160. Indeed, Jacobs & White, ibid., recognize that the 'tenor of the judgment [in Abdulaziz, Cobales and Balkandali] is such that, if the difference of treatment did indicate contempt or lack of respect for the personality of the applicants, that may meet the level of severity necessary to constitute degrading treatment'. It has also been suggested that 'general socio-economic conditions' is one area to which the ECHR organs might explore the possibility of applying art. 3. See A. Cassese, 'Prohibition of Torture and Inhuman or Degrading Treatment or Punishment', in The European System of the Protection of Human Rights, above note 95, 225, 260. In Application 23634/94, Tanko v. Finland, 77-A D & R 133 (1994), the applicant alleged that the enforcement of his expulsion to Ghana would subject him to a risk of losing his eyesight given the less adequate medical facilities for his treatment in that country. The Commission, ibid. 137, stated that it did 'not exclude that a lack of proper care in a case where someone is suffering from a serious illness could in certain circumstances amount to treatment contrary to Article 3', although it found that this had not been established in the application before it.
161. Cited by Simon Brown LJ in ex parte B, above note 1, 398hj-9a.
162. The potential racially discriminatory impact of some of the provisions of the AIA 1996 was recently considered by the Committee on the Elimination of Racial Discrimination in its examination of the UK's 14th periodic report under the International Convention on the Elimination of All Forms of Racial Discrimination (21 Dec. 1965; 660 UNTS 195; entry into force 4 Jan. 1969; ratified by 150 States, including the UK, at 2 Mar. 1998). Although the Committee did not specifically refer to the provisions in the AIA 1996 withdrawing social security benefits from asylum seekers when assessing the possible detrimental effect of the legislation, it recommended, generally, that the implementation of the Act 'be closely monitored, so as to avoid any possible discrimination against certain categories of asylum seekers . . .'. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, UN doc. CERD/C/304/ Add.20 (1997) paras. 18 and 27 respectively.
163. The potential racially discriminatory impact of some of the provisions of the AIA 1996 was recently considered by the Committee on the Elimination of Racial Discrimination in its examination of the UK's 14th periodic report under the International Convention on the Elimination of All Forms of Racial Discrimination (21 Dec. 1965; 660 UNTS 195; entry into force 4 Jan. 1969; ratified by 150 States, including the UK, at 2 Mar. 1998). Although the Committee did not specifically refer to the provisions in the AIA 1996 withdrawing social security benefits from asylum seekers when assessing the possible detrimental effect of the legislation, it recommended, generally, that the implementation of the Act 'be closely monitored, so as to avoid any possible discrimination against certain categories of asylum seekers . . .'. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, UN doc. CERD/C/304/ Add.20 (1997) paras. 18 and 27 respectively.
164. Art. 7 reads: 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation'. This provision replicates art. 5 of the UDHR and, like art. 3 ECHR50, cannot be derogated from under any circumstances (ICCPR, art. 4(2)).
165. See McGoldrick, above note 98, 367, para. 9.12.
166. Revised General Comment 20/44 on Article 7 (adopted 20th Session, 1992), UN doc. A/47/ 40, Annex VI, paras. 2 and 5.
167. See General Comment 15/17 on the Position of Aliens under the Covenant, above note 78, para. 5. Emphasis added.
168. For reasons of space and because of its universal application in terms of persons protected, the following discussion is mainly confined to the guarantees found in ICESCR66.
169. In defence of the CSR in this respect, Hathaway and Dent, above note 55, 46, observe that the entire ICESCR is 'enforceable only at the level of nondiscriminatory progressive implementation, whereas the Refugee Convention appears to set absolute, if less exigent, expectations of States'. However, while it is accepted that there is a progressive element to the implementation of economic and social rights, it is argued in Section 4.5.4 below that States are under a duty to ensure immediately the 'minimum core content' of the rights in ICESCR66.
170. See also the excellent thesis expounded by Scott, above note 80, who argues, in the light of this principle, that certain rights in ICESCR66 should be able to 'permeate' ICCPR66. Scott, ibid., 875, emphasizes the importance of the right to life in realizing interdependence between these two categories of rights: '[T]he ultimate test of interdependence is the interpretation placed on the right to life in ICCPR 6(1). Does it remain a classic negative right or is there a more modern conception to appeal to? Can the Human Rights Committee foster an evolution of the concept to include the right to live with basic human dignity . . . Can such rights as the right to health, the right to food, or the right to shelter be interpreted into the ICCPR?'
171. Art. 12(1): 'The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.
172. Art. 11(1): 'The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions . . .'. Scott, above note 80, 780-1, argues that there is an 'organic interdependence' between this right and the right to life in art. 6(1) ICCPR66 in that the latter can be interpreted to include the former. This interpretation generates an 'implicit overlap' between the two provisions.
173. Art. 9: 'The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance'.
174. Note, however, the limitation permitted by art. 2(3) to developing countries in respect of the guarantee of economic rights to non-nationals. See above note 84.
175. Above note 17 (as summarized by Collins J).
176. See also the Refugee Council Representations to the SSAC, above note 11, para. 12.9, referring to the particular difficulties experienced by hospitals when discharging patients who lack homes to be discharged to and the potential risks to recovery and health as a result of an early discharge.
177. V. A. Leary, 'Justiciability and Beyond: Complaint Procedures and the Right to Health', Review of the International Commission of Jurists No. 55 (Special Issue: Economic, Social and Cultural Rights and the Role of Lawyers, Conference in Bangalore, India, Oct. 1995) 105, 109 (Dec. 1995). See also V.A. Leary, 'The Right to Health in International Human Rights Law', 1 Health and Human Rights 25 (1994) for a fuller discussion of the concept of the right to health.
178. V. A. Leary, 'Justiciability and Beyond: Complaint Procedures and the Right to Health', Review of the International Commission of Jurists No. 55 (Special Issue: Economic, Social and Cultural Rights and the Role of Lawyers, Conference in Bangalore, India, Oct. 1995) 105, 109 (Dec. 1995). See also V.A. Leary, 'The Right to Health in International Human Rights Law', 1 Health and Human Rights 25 (1994) for a fuller discussion of the concept of the right to health.
179. Leary (1994), above note 123, 44, (citing A. Eide, 'Realization of Social and Economic Rights and the Minimum Threshold Approach', 10 HRLJ 35, 37 (1989)).
180. Leary (1994), above note 123, 44, (citing A. Eide, 'Realization of Social and Economic Rights and the Minimum Threshold Approach', 10 HRLJ 35, 37 (1989)).
181. Leary, ibid., 48, citing World Health Organization (WHO), Global Strategy for Health For All by the Year 2000, 38.
182. Leary, ibid., 48, citing World Health Organization (WHO), Global Strategy for Health For All by the Year 2000, 38.
183. Cf. Leary, ibid., 40-1, referring to presentations made at the general discussion on the right to health (minimum core content and non-discrimination dimensions) as recognized in art. 12 ICESCR66, organized by the Committee on Economic, Social and Cultural Rights (the body responsible for monitoring the implementation of ICESCR66) on 6 Dec. 1993. See UN doc. E/ C.12/1993/SR.41 (1993).
184. A. Eide, 'The Right to an Adequate Standard of Living Including the Right to Food', in A. Eide, C. Krause & A. Rosas, eds., Economic, Social and Cultural Rights: A Textbook, Dordrecht: Martinus Nijhoflf, 1995, 89, 105. Clearly, therefore, asylum seekers in the UK who have no other means of support and who do not possess the right to work (at least initially) constitute a group in need of state assistance.
185. For an analysis of the status of this right in international law, including moves to enshrine it in a legally binding international instrument, see S. Leckie, Towards an International Convention on Housing Rights: Options at Habitat II, Washington D.C.: American Society of International Law, 1994. At Habitat II, the Global Plan of Action asserted that 'States should take appropriate action in order to promote, protect and ensure the full and progressive realization of the right to adequate housing'. See The Habitat Agenda: Goals and Principles, Commitments and Global Plan of Action, UN Conference on Human Settlements (Habitat II), Istanbul, 3-14 June 1996, UN doc. A/CONF.165/L.6/Add.5, Ch. 4 (Global Plan of Action: Strategies for Implementation), para. 44.
186. For an analysis of the status of this right in international law, including moves to enshrine it in a legally binding international instrument, see S. Leckie, Towards an International Convention on Housing Rights: Options at Habitat II, Washington D.C.: American Society of International Law, 1994. At Habitat II, the Global Plan of Action asserted that 'States should take appropriate action in order to promote, protect and ensure the full and progressive realization of the right to adequate housing'. See The Habitat Agenda: Goals and Principles, Commitments and Global Plan of Action, UN Conference on Human Settlements (Habitat II), Istanbul, 3-14 June 1996, UN doc. A/CONF.165/L.6/Add.5, Ch. 4 (Global Plan of Action: Strategies for Implementation), para. 44.
187. General Comment No. 4 on the Right to Adequate Housing (6th Sess., 1991), UN doc. E/ 1992/23, para. 1.
188. Ibid., para. 7.
189. Ibid., paras. 6 and 7 respectively.
190. Ibid., para. 8(e). The Committee, ibid., specifically identified the following vulnerable groups: the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, and people living in disaster-prone areas.
191. Ibid., para. 13. In these guidelines, the Committee's list of disadvantaged and vulnerable groups included, inter alia, migrant workers and 'other especially affected groups'. See Revised guidelines regarding the form and contents of States reports to be submitted by States Parties under Articles 16 and 17 of the Covenant on Economic, Social and Cultural Rights, UN doc. E/1991/23, cited by Eide, above note 128, 93. Eide, ibid. 93-4 (footnote omitted), suggests that 'persons who are temporarily in very difficult positions, such as, inter alia, internally displaced persons and refugees' could be added to this list .
192. Ibid., para. 13. In these guidelines, the Committee's list of disadvantaged and vulnerable groups included, inter alia, migrant workers and 'other especially affected groups'. See Revised guidelines regarding the form and contents of States reports to be submitted by States Parties under Articles 16 and 17 of the Covenant on Economic, Social and Cultural Rights, UN doc. E/1991/23, cited by Eide, above note 128, 93. Eide, ibid. 93-4 (footnote omitted), suggests that 'persons who are temporarily in very difficult positions, such as, inter alia, internally displaced persons and refugees' could be added to this list .
193. Ibid., para. 13. In these guidelines, the Committee's list of disadvantaged and vulnerable groups included, inter alia, migrant workers and 'other especially affected groups'. See Revised guidelines regarding the form and contents of States reports to be submitted by States Parties under Articles 16 and 17 of the Covenant on Economic, Social and Cultural Rights, UN doc. E/1991/23, cited by Eide, above note 128, 93. Eide, ibid. 93-4 (footnote omitted), suggests that 'persons who are temporarily in very difficult positions, such as, inter alia, internally displaced persons and refugees' could be added to this list .
194. In his second progress report on the right to adequate housing, the Special Rapporteur, Mr Rajindar Sachar, produced a draft International Convention on Housing Rights, in which the non-discrimination provision specifically enumerates 'citizenship' as a prohibited ground of discrimination (art. 2). Moreover, the Special Rapporteur, identified 'refugees' as a 'chronically ill-housed group' whose housing rights had to be 'accorded a measure of priority in both the housing laws and policies of all Governments' (art. 4). See UN, ECOSOC, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 46th Session, The Right to Adequate Housing, Second Progress Report submitted by Mr Rajindar Sachar, Special Rapporteur, UN doc. E/CN.4/Sub.2/1994/20 (1994) 28-9.
195. Moreover, it is also possibly a violation of art. 8(1) ECHR50, which grants everyone 'the right to respect for his private and family life, his home and his correspondence'. Emphasis added. The European Commission of Human Rights did not 'discount the possibility that the right to respect for family life could be violated in a case where the authorities impose intolerable living conditions on a person or his family', even though there is no obligation in the ECHR to provide housing. Application 7367/76, Guzzardi v. Italy, Commission Report of 7 Dec. 1978, Eur. Ct. H.R., 1995, Ser. B, No. 35. See also S. Leckie, 'The Right to Housing', in Economic, Social and Cultural Rights: A Textbook, above note 128, 117. In Lopez Ostra v. Spain, the Court of Human Rights found that severe environmental pollution, characterized by fumes and smells which caused health problems to local residents, prevented them from enjoying their homes in a way that affected adversely their private and family life, and thus constituted an infringement of art. 8. Lopez Ostra v. Spain, judgment of 9 Dec. 1994, Eur. Ct. H.R., Ser. A, No. 303-C, 20 EHRR 277 (1995).
196. See M. Scheinin, 'The Right to Social Security', in Economic, Social and Cultural Rights: A Textbook, above note 128, 159.
197. Ibid., 162 and D. Harris, The European Social Charter, Charlottesville, Virginia: University Press of Virginia, 1984, 110 and n. 588, with reference to art. 9 ICESCR66 and art. 12, European Social Charter (18 Oct. 1961; Council of Europe ETS No. 35; entry into force 26 Feb. 1965; ratified by 21 States, including the UK, at 1 April 1998), which also protects the right to social security. Art. 12(4) of the Charter is concerned with equal treatment between States party nationals in respect of social security, but this provision has not been accepted by the UK under the Charter's selective ratification procedure (arts. 20(1)(b) and (c)). The principal ILO instrument is Convention No. 102 of 1952 concerning Minimum Standards of Social Security (210 UNTS 131): 28 Jun. 1952; entry into force 27 Apr. 1955; ratified by 40 States, including the UK, at 2 Feb. 1998.
198. Ibid., 162 and D. Harris, The European Social Charter, Charlottesville, Virginia: University Press of Virginia, 1984, 110 and n. 588, with reference to art. 9 ICESCR66 and art. 12, European Social Charter (18 Oct. 1961; Council of Europe ETS No. 35; entry into force 26 Feb. 1965; ratified by 21 States, including the UK, at 1 April 1998), which also protects the right to social security. Art. 12(4) of the Charter is concerned with equal treatment between States party nationals in respect of social security, but this provision has not been accepted by the UK under the Charter's selective ratification procedure (arts. 20(1)(b) and (c)). The principal ILO instrument is Convention No. 102 of 1952 concerning Minimum Standards of Social Security (210 UNTS 131): 28 Jun. 1952; entry into force 27 Apr. 1955; ratified by 40 States, including the UK, at 2 Feb. 1998.
199. Ibid., 162 and D. Harris, The European Social Charter, Charlottesville, Virginia: University Press of Virginia, 1984, 110 and n. 588, with reference to art. 9 ICESCR66 and art. 12, European Social Charter (18 Oct. 1961; Council of Europe ETS No. 35; entry into force 26 Feb. 1965; ratified by 21 States, including the UK, at 1 April 1998), which also protects the right to social security. Art. 12(4) of the Charter is concerned with equal treatment between States party nationals in respect of social security, but this provision has not been accepted by the UK under the Charter's selective ratification procedure (arts. 20(1)(b) and (c)). The principal ILO instrument is Convention No. 102 of 1952 concerning Minimum Standards of Social Security (210 UNTS 131): 28 Jun. 1952; entry into force 27 Apr. 1955; ratified by 40 States, including the UK, at 2 Feb. 1998.
200. Scheinin, above note 137, 162 and n. 19.
201. Ibid., 162-3. A right to social assistance is also accorded to those 'lawfully within' the territories of States parties under art. 13(4) of the European Social Charter, which is also applicable to asylum seekers. In this regard, see the broad interpretation given to the phrase 'lawfully within' by the body responsible for monitoring the implementation of the Charter. Committee of Independent Experts of die European Social Charter, Conclusions XIII-4 (1996) 62.
202. General Comment No. 3 on Article 2, para. 1: the Nature of States Parties' Obligations (5th Sess., 1991), UN doc. E/1991/23, para. 2.
203. Ibid., para. 10. The Committee has also pointed out (para. 13), that the phrase in art. 2(1) 'to the maximum of its available resources' was 'intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance'.
204. Ibid., para. 1.
205. See M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development, Oxford: Clarendon Press, 1995, 170 and 173-4. The Committee's approach in this respect would be assisted by the position of the Canadian Supreme Court, which considers that one of the principal aims of the equality provision (s. 15(1)) in the Canadian Charter of Rights and Freedoms (Constitution Act 1982, Pt I) is to protect disadvantaged groups. See Andrews v. Lew Society of British Columbia (1989) 56 DLR (4th) 1, 18 (per McIntyre J), in which the Court also found that non-citizens constituted such a group even though nationality is not enumerated explicitly in s. 15(1) as a prohibited ground of discrimination.
206. Indeed, only in Italy are asylum seekers denied most welfare benefits and have to largely rely on charitable aid. See Refugee Council Representations to the SSAC, above note 11, paras. 9.7-9.8, referring to a report by the Italian Refugee Council (CIR), cited by M. D. Donne, 'Difficulties of Refugees Towards Integration: The Italian Case', in Avenues to Integration, Naples: European Association for Refugees Research, 1995, 122. See also the section on Italy in F. Liebaut & J. Hughes, Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries (Danish Refugee Council, Jan. 1997), which is available on the internet: http://www.drc.dk/indexeng.htm
207. Indeed, only in Italy are asylum seekers denied most welfare benefits and have to largely rely on charitable aid. See Refugee Council Representations to the SSAC, above note 11, paras. 9.7-9.8, referring to a report by the Italian Refugee Council (CIR), cited by M. D. Donne, 'Difficulties of Refugees Towards Integration: The Italian Case', in Avenues to Integration, Naples: European Association for Refugees Research, 1995, 122. See also the section on Italy in F. Liebaut & J. Hughes, Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries (Danish Refugee Council, Jan. 1997), which is available on the internet: http://www.drc.dk/indexeng.htm
208. Indeed, only in Italy are asylum seekers denied most welfare benefits and have to largely rely on charitable aid. See Refugee Council Representations to the SSAC, above note 11, paras. 9.7-9.8, referring to a report by the Italian Refugee Council (CIR), cited by M. D. Donne, 'Difficulties of Refugees Towards Integration: The Italian Case', in Avenues to Integration, Naples: European Association for Refugees Research, 1995, 122. See also the section on Italy in F. Liebaut & J. Hughes, Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries (Danish Refugee Council, Jan. 1997), which is available on the internet: http://www.drc.dk/indexeng.htm
209. At 2 Mar. 1998, the Convention had only been ratified by one European country, Bosnia and Herzegovina, and by eight non-European countries: Cape Verde, Colombia, Egypt, Morocco, Philippines, Seychelles, Sri Lanka, and Uganda. The Convention requires 20 ratifications to enter into force (art. 87).
210. See in particular the following provisions: art. 25 (work and employment conditions); art. 27 (social security); art. 28 (emergency medical care); art. 30 (access to education). The definition of migrant worker in the Convention specifically excludes 'refugees' and 'stateless persons' (art. 3(d)), but it does not mention asylum seekers. One commentator argues that asylum seekers in employment would come within the personal scope of the instrument. See W. R. Böhning, 'The ILO and the New Convention on Migrant Workers: The Past and Future', 25 Int. Migration Rev. 698, 707-8 (1991).
211. The UK third periodic report under ICESCR66 was examined by the Committee on Economic, Social and Cultural Rights at its 17th Session, held in Geneva in Nov./Dec. 1997. Although the situation of asylum seekers was not raised in its Concluding Observations, the Committee suggested that the UK, in keeping with its proposed action in respect of ECHR50, 'take appropriate steps to introduce into legislation ICESCR66, so that the rights covered by the Covenant may be fully implemented'. See Concluding Observations of the Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland, UN doc. E/C.12/1/ Add.19 (4 Dec. 1997) para. 21.
212. Government White Paper, Fairer, Faster and Firmer - Modern Approach to Immigration and Asylum, Cm 4018 (July 1998).
213. Figures produced by the Association of London Government, representing 32 boroughs, estimate that there are 28,000 asylum seekers in the capital: 12,200 single adults; 15,000 persons in families; and 1,300 unaccompanied children. See P. Hetherington, 'Surge of refugees a "time bomb" for London boroughs': Guardian 25 Sept. 1998, 10.
214. Fairer, Faster and Firmer, above note 149, Preface.
215. Ibid, para. 8.17.
216. Ibid., para. 8.18.
217. Ibid., para. 8.19.
218. Ibid., para. 8.20-8.21.
219. Ibid., para. 8.21.
220. Ibid., para. 8.22.
221. Ibid., para. 13.12.
222. See also N. Hardwick, 'Stairway to hell', Guardian (Society) 5 Aug. 1998, 2.
223. In July 1997, three prominent NGOs recommended that the cheapest and most effective way of ensuring that asylum seekers and their families have access to reasonable means of support while awaiting a primary or appeal determination would be the restoration of social security benefits. See JUSTICE, ILPA, Asylum Rights Campaign (ARC), Providing Protection: Towards Fair and Effective Asylum Procedures, London, JUSTICE, ILPA, ARC, 1997, 66 (Recommendation 25).