ABSTRACT
In November 2005 the House of Lords (HoL) delivered a landmark judgement (Adam, UKHL), ending a 10-year period of legislation and contestation regarding the removal of welfare support from asylum seekers who do not claim on entry into national territory (late claimers). This history began with the Conservative government’s attempt to remove benefits from late claimers by changes in Income Support Regulations (DSS, 1996), and ended with a HoL judgement on the application of Labour’s 2002 Asylum and Immigration Act, yielding a sequence in which ‘each step taken by Parliament has led to litigation’ (T, EWCA, para 6). Of the 14 judgements in this case history, 11 went against the government. One interesting question is what was at stake in these judgements, and why
so many cases were necessary to bring the sequence to a final conclusion; this will be the focus of the present chapter. As we have seen, the policy at issue stems from government concern over asylum and immigration, and attempts at deterrence which collide with the assertion of fundamental rights. Thus challenges to its implementation implicitly raise questions about the boundary of our social and moral community, and highlight the role of the judiciary in determining the legitimacy of contentious policy measures. The case history spans a period of transition in Britain from the general principles of the Common Law to implementation of the Human Rights Act (HRA), the latter requiring public authorities to act compatibly with the European Convention on Human Rights (ECHR). Yet indeterminacy is to the fore in such a developing area of law (Dworkin, 2005), allowing considerable scope for judicial interpretation. The following account of these cases documents an incremental process in
which the application and interpretation of basic values and principles plays a vital role. The starting point for analysis is therefore the moment of judgement in each case; what issues the decision turns upon, what general principles the judges draw on, and the impact of such principles on the outcome. These questions can then be considered alongside more overt policy issues such as the force of collective interest as against individual rights, the way judges differ in their interpretation of these matters, and how these differences are resolved
across a series of cases. Beyond these questions we find a more elusive terrain of further interest to policy analysts – judgement as political dialogue, which can be explored by close attention to both the rationale and delivery of each judgement. Legomsky’s (1987) account of the judicial treatment of immigration law notes the significance of ‘extra-legal’ factors in shaping a judgement, and he includes here the force of political concerns. Accordingly, we can ask what legal and political strategies judges deploy in the formulation and delivery of their judgement, what political messages the judgements contain, and what impact they have on the application of policy. Such questions open up the idea of judgement as part of a dynamic process
that shapes our conception of social and political life, and establishes the parameters of acceptability. Analysis of these cases is therefore of great relevance to social policy, especially given the high success rate of the challenges. The judgements allow us to examine how far constraints may be placed on government action by virtue of recourse to general principles and fundamental rights, and they have powerful implications for the deterrent approach to asylum which has been a key aspect of policy over the last decade (Stevens, 2004; Webber, 2004). They also permit an assessment of the role of the HRA, as compared with common law principles, in challenging the implementation of such policy. Conversely, we can consider how far the judgements are constrained by government objectives, through an examination of the political concerns at issue and their handling by the judiciary. What is revealed is an insight into the role of judgement as part of a political exchange both between judges and with the government (cf Fredman, 2000) over permissible means of deterrence. The context for the cases under consideration is an attempt by respective
governments to harness the benefits system as a means to deter arrival, each instance of the withdrawal of support coinciding with a significant rise in asylum numbers (to 43,925 in 1996, and to 84,135 in 2002). In the case of both Conservative and New Labour policy in this area, justification for withdrawal was a claim to combat abuse, despite critical comment on the policy’s failure to discriminate between genuine and non-genuine claimants.1 It has been shown that late claims were more likely to succeed than applications on arrival,2 and that the measure was based on misguided assumptions about how asylum seekers choose their country of destination, benefits playing a lesser role than that of traffickers and the availability of informal supports (Bloch and Schuster, 2002). Such mis-matches of policy and practice have been highlighted by Juss
(1997), who writes of ‘cultural jurisprudence’, and the need to judge policy in the light of the lived experience of those affected. The policy of removing support from late claimers offers a good illustration, and has been one aspect of a broader attempt to deter and control certain types of migration (Stevens, 2004), linked under New Labour to an emphasis on targets for the reduction and removal of asylum seekers (Düvell and Jordan, 2003). The erosion of
welfare support as part of this process has been documented by Cohen et al. (2002) and Sales (2002), while my own work (Morris, 2002) has addressed migration and asylum policy in terms of a system of civic stratification, designed to attract or repel certain categories of migrant. Judicial decision-making in the field of immigration and asylum has tradi-
tionally been driven by deference to policy priorities (Stevens, 2004), and shaped to a degree by conservatism and constraint (Legomsky, 1987). However, many writers (Woodhouse, 1998; Woolf, 1998; Stevens, 2005) see a recent growth of Judicial Review as marking increased judicial involvement in placing government policy under challenge. For Sedley (1995) this development has filled a ‘lacuna of legitimacy’ in the functioning of British politics, and has signalled a waning of the tradition of judicial deference in relation to welfare issues. Woodhouse (1998), for example, cites a number of cases reading positive rights to social support from protections such as the right to life, or to seek asylum, and she predicts an increase in judicial intervention to defend rights historically associated with the welfare state. The present history is therefore of particular interest, in dealing with welfare issues which are indirectly linked to the immigration aspect of asylum policy. Early cases in this history were confined to interpretations of domestic law,
albeit read against the Convention on the Status of Refugees (CSR) and the Common Law. Later cases post-dated the HRA and invoked an absolute human right, requiring the highest degree of scrutiny and offering little scope for qualification in terms of the national interest. Both before and after the passing of the HRA key judgements ruled against the application and effect of government policy, and below we examine their unfolding logic and policy implications. The account is interspersed with interview material from the solicitors and barristers involved in bringing the challenge, and their comments are deployed here to underline the critical legal and strategic moments in the case history.
