Government plan to define ‘degrading treatment’ in law to limit deportation challenges

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Government plan to define ‘degrading treatment’ in law to limit deportation challenges

Under plans to speed up deportations, the Home Office is looking at defining ‘inhuman and degrading treatment’ in an attempt to prevent human rights challenges and judges from making ‘subjective’ decisions in cases concerning failed asylum seekers and foreign offenders. Article Three of the European Convention on Human Rights is often invoked in deportation cases.

Judges in domestic courts and the European Court of Human Rights tend to define ‘inhuman and degrading treatment’ with reference to the specific circumstances surrounding the given case; however not has been argued that a concrete legal definition would curtail the ability of the courts to interpret Article Three on a case-by-case basis. Speaking to The Telegraph, a Whitehall source said that ministers want to do away with ‘ambiguity’ and ‘reduce the scope for judges to answer philosophical questions’.

Another Whitehall source stated that no final decision has been made on this issue, though it is ‘being discussed’. At the virtual Conservative Party Conference earlier this month, Patel promised the ‘biggest overhaul of our [asylum] system in decades’ in response to what she sees as a broken system susceptible to ‘abuse’ by so-called activist lawyers. Any statutory definition of Article Three ECHR would feature in the Fair Borders Bill, which is intended to completely revamp the existing asylum system. The Home Office plans to introduce the legislation before the Brexit transitional period ends on 31 December 2020.

This would not be the first time that government ministers have attempted to curb the use of human rights provisions in the context of migration. The Immigration Act 2014, introduced by then Home Secretary Theresa May, obliges the courts to weigh a specific list of ‘public interest’ considerations against Article Eight rights: the right to respect for private and family life.

It was revealed in September that the Prime Minister is exploring ways in which the UK can ‘opt out’ of certain provisions in the Human Rights Act, the legislation which gives domestic effect to the ECHR.