Academic journal article Vanderbilt Journal of Transnational Law

Do Human Rights Treaties Help Asylum-Seekers? Lessons from the United Kingdom

Academic journal article Vanderbilt Journal of Transnational Law

Do Human Rights Treaties Help Asylum-Seekers? Lessons from the United Kingdom

Article excerpt

ABSTRACT

This Article analyzes the circumstances under which international human rights treaties have helped or hurt asylum-seekers in the United Kingdom since 1991. Combining a database of nearly two thousand asylum decisions and fifty-one interviews with U.K. refugee lawyers, it identifies several factors which help determine the impact of human rights treaties in individual cases. It focuses on the United Kingdom because that country has ratified or otherwise adopted numerous human rights treaties over the past three decades, and U.K. refugee lawyers regularly invoke those treaties in representing their clients.

This Article fills a gap in the treaty effectiveness literature by addressing the extent to which domestic courts rely on or otherwise reference human rights treaties in asylum litigation. It posits that the impact of such treaties in any given case depends on several factors, including the extent to which the treaty has been incorporated into domestic law and the gender of the applicant. This Article also demonstrates that while such treaties help asylum-seekers in some cases, in others they may do more harm than good.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THEORETICAL EXPLANATIONS
III. THE UK ASYLUM ADJUDICATION
 IV. METHODOLOGY
     A. Quantitative Data: Case Law Database
     B. Qualitative Data: Lawyer Interviews
  V. QUANTITATIVE DATA ANALYSIS
     A. Descriptive Findings
        1. The only treaty provisions regularly referenced by UK
           judges are those which have been effectively incorporated
           into UK domestic law. Treaties not incorporated are
           rarely referenced
        2. References to treaties increased
           sharply in the first half of the 2000s and have gradually
           declined since
        3. References to treaties other than
           ECHR articles 3 and 8 increased slightly throughout the
           2000s.
        4. The vast majority of treaty references
           in judicial opinions do not help applicants obtain
           protection, and the percentage of such helpful references
           has been declining in the past half-decade.
        5. To the extent that the treaty
           references are helpful, the majority form the basis for
           a grant of protection, as opposed to merely buttressing a
           grant of protection reached on other grounds
     B. Testing of Key Variables
        1. Gender of Applicant
        2. Gender of Judge
        3. Level of the Adjudication: Upper
           Tribunal or Appellate Court
        4. Country of Origin of Applicant
 VI. CONCLUSIONS
VII. APPENDIX A. KEY WORDS, PHRASES, AND
     CASES FOR CODING HUMAN RIGHTS TREATIES
VII. APPENDIX B. CODING REFERENCES TO
     ALL TREATIES

I. INTRODUCTION

For more than half a century, the primary international law assisting persons fleeing persecution in their home country has been the 1951 Convention relating to the Status of Refugees. (1) In order to obtain relief under the Refugee Convention, a claimant must demonstrate a well-founded fear of persecution in her home country on account of at least one of five enumerated grounds: race, religion, nationality, political opinion, and membership in a particular social group. (2) In addition to the Refugee Convention, several international human rights treaties offer protection to those who flee harm for reasons that do not fit within one of the Refugee Convention's five enumerated grounds. (3) Thus, treaties such as the Convention on the Rights of the Child (4) and the European Convention on Human Rights (5) offer complementary or subsidiary protection to noncitizens, providing a source of relief from persecution independent of the protection offered by the Refugee Convention. (6) Such treaties can assist refugees in at least two other ways: they include procedural protections not available under the Refugee Convention; (7) and they are used as interpretative aids by courts considering claims under the Refugee Convention. …

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