As the UK does not have a written constitution there is no explicit rights to freedom of movement, for citizens or migrants, rather everything which is not prohibited by Parliamentary legislation is permitted. The courts have begun to further define the parameters of migrant’s rights as set out in legislation.

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As the UK does not have a written constitution there is no explicit rights to freedom of movement, for citizens or migrants, rather everything which is not prohibited by Parliamentary legislation is permitted. The courts have begun to further define the parameters of migrant’s rights as set out in legislation.

The most recent judgment was in the Court of Appeal in the case of R v Secretary of State for the Home Department in March 2003. The court ruled that the denial of state benefits to asylum applicants considered to have applied late would result in their destitution and the risk of inhuman and degrading treatment and rejected the government's appeal. The Government Home Office appealed against a High Court judgment of February 2003, where it was held that the denial of benefits under section 55 of the Nationality, Immigration and Asylum Act 2002 when asylum seekers did not apply ‘as soon as possible’ could be in breach of their human rights. It was held that if a person could show that they were under a ‘real risk’ of destitution this would violate Article 3, the right not to be subjected to inhuman or degrading treatment or punishment, and Article 8(1), the right to respect for private and family life. The High Court stated that the fact that a claimant had become homeless in itself showed a real risk of violations of the above rights. The Court of Appeal defined the test of whether an asylum seeker has claimed asylum as soon as reasonably practicable as requiring regard to practical opportunities and personal circumstances of the asylum seeker and whether they could reasonably be expected to have claimed earlier, they agreed with the High Court that regard should be given to the effect of anything the asylum seekers was told by the facilitator. They disagreed with the High Court in terms of the real risk test and stated that the burden is on the applicant to show that state support is necessary to avoid human rights violations under Article 8, and Article 3, ECHR. They also stated that applicants should be given an opportunity to explain their delay in applying for asylum, which the system was lacking.

The Court of Appeal in the case of the European Roma Rights Centre and others v The Immigration Officer at Prague airport and the Secretary of state for the Home Department in March 2003, concerned a challenge to the UK government's system of border controls at Prague airport which prevented certain groups from traveling to the UK. The appellants were granted leave to appeal to the House of Lords although the practice was not found to be unlawful. The case was an appeal from the High Court where it was found that the prevention of six individuals from traveling to the UK was not discriminatory and therefore not unlawful, during the hearing the Secretary of State stated that the one of the aims of the system was to prevent asylum seekers from traveling to the UK.

A recent judgment on immigration detention in the Court of Appeal in Saadi and othersin 2001 granted the government's appeal against a High Court decision and held that short-term detention of asylum seekers at the Oakington Reception Centre was lawful and not disproportionate under Article 5, ECHR, the right to freedom from arbitrary deprivation of liberty. They also found that the deprivation of liberty at Oakington fell at the bottom end of the scale of interference with the rights set out in Article 5. The appellants appeal to the House of Lords was rejected and the Court of Appeals decision upheld. The House of Lords found that detention at Oakington was lawful and that detention of asylum seekers in such circumstances was necessary to prevent unauthorised entry under Article 5(1)(f), ECHR.

A number of other seminal Court of Appeal and House of Lords judgements have defined the meaning of persecution and the parameters of the definition of a refugee under the 1951 Convention Relating to the Status of Refugees.  For example in Horvath in 2000 the House of Lords found that persecution under the 1951 Convention could be by non-state agents when the State w s unable or unwilling to protect the individual.  A further seminal case on asylum law was in 1999 when the Court of Appeal in Shah and Islam ruled that women constitute a ‘particular social group’ under the 1951 Convention.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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