Introduction
The HRA 1998 came into force on 2 October 2000. Its aim was to give effect in domestic law to certain rights and freedoms set out in the European Convention on Human Rights. The HRA 1998 does not incorporate the Convention into domestic law, rather it sets up mechanisms by which rights can be taken account of so that there can be use of those rights in domestic law rather than going to the court in Strasbourg.
There are two distinct mechanisms in the HRA 1998:
- the requirement to interpret legislation in accordance with the Convention;
- that it is unlawful for public authorities to act in a way which is incompatible with the Convention.
Sections of the Human Rights Act 1998 which may be of particular importance in immigration/asylum proceedings
Section 2 – A court or tribunal determining a question, which has arisen in connection with a Convention right, must take into account any:
- judgments etc of European Court of Human Rights;
- opinions of the Commission;
- decisions of the Commission;
- decisions of the Committee of Ministers.
(The Commission was abolished in 1998 but its decisions and opinions prior to that may be referred to.)
Section 3 -“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.
Section 4 – Declarations of incompatibility (i.e. where legislation is found to be incompatible with the Convention): the matter will return to Parliament (due to parliamentary sovereignty) – either to amend the Act with a remedial order or take other remedial steps. If Parliament fails to act, the appropriate remedy would be to apply to Strasbourg (for example A and others v SSHD [2004] UKHL 56).
Section 6 – makes it unlawful for a public authority to act in a way incompatible with the Convention unless they are prevented from doing so by statute.
What is a public authority?
This includes the courts/tribunals and any person certain of whose functions are functions of a public nature.
In an immigration context the UKVI and the immigration courts are included.
Section 7 – applies to section 6 challenges. A claim can only be brought by a ‘victim’, so a victim is defined as a party who is directly affected. Proceedings can be issued in an appropriate court under the HRA or the party can rely on existing proceedings e.g. human rights arguments may be relied on immigration/asylum proceedings. Section 7(5): limitation period – if alleging breach by public authority i.e. s. 6 challenges: one year from act complained of, but need to consider the issue in relation to any other time limit e.g. an asylum appeal time limit or if judicial review the appropriate time limit (maximum 3 months).
Section 8 – the court may grant such relief/remedy within its powers as it considers just and appropriate. The courts must give effect to Convention rights through existing powers and mechanisms available (no new remedies created). Therefore only courts that can already award damages/ compensation will do so and only if necessary for “just satisfaction”.