In this blog post Clíodhna Kelleher of Monckton Chambers discusses the judgment in Angesom’s Application [2023] NIKB 102, in which the High Court of Northern Ireland considered the UK government’s commitment in Article 2(1) of the NI Protocol to safeguard certain human rights and equality obligations under the Belfast / Good Friday Agreement in the aftermath of Brexit.
Factual background
The case concerned an asylum seeker, Mr Angesom, who arrived in Northern Ireland from Eritrea in June 2021 and made an application for asylum. As he was destitute, he was provided with support under section 95 of the Immigration and Asylum Act 1999 (usually known as NASS support) and was accommodated in Belfast.
Northern Ireland experienced an uptick in asylum applications being made to it over the course of 2021. Consequently, the Home Office decided to “disperse” a number of asylum seekers to other parts of the UK. Mr Angesom was informed he was to be dispersed to Falkirk in Scotland on 26 October 2021. He was moved the following day.
He challenged his dispersal on a number of grounds, including that the timing of the dispersal deprived him of the opportunity to seek and obtain legal advice, that it breached his right under Article 8 ECHR and further breached his legitimate expectation that he would be provided with sufficient notice of a dispersal to permit him to make representations to the Home Office.
By ground 5 of his challenge he argued that his dispersal was unlawful by reason of Article 2(1) of the NI Protocol in that it breached the EU Charter of Fundamental Rights (“the Charter”), the civil and socio-economic rights in the Belfast / Good Friday Agreement (“GFA”), and the Reception Conditions Directive. This blog post focuses on that ground of Mr Angesom’s application, and the approach of the Court to whether a diminution of rights had occurred contrary to Article 2(1) of the Protocol.
Article 2(1) of the NI Protocol
In essence, the NI Protocol is part of the legal framework governing the withdrawal of the UK from the EU and was adopted to avoid the creation of a hard border on the island of Ireland and to protect the GFA.
Section 2(1) of the NI Protocol provides:
“Article 2 Rights of individuals
1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.”
The reference in Article 2(1) to the GFA – the 1998 Agreement – is a reference to the following section of that agreement:
“1. The parties affirm their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community. Against the background of the recent history of communal conflict, the parties affirm, in particular:
the right of free political thought;
the right to freedom and expression of religion;
the right to pursue democratically national and political aspirations;
the right to seek constitutional change by peaceful and legitimate means;
the right to freely choose one’s place of residence;
the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity;
the right to freedom from sectarian harassment; and
the right of women to full and equal political participation.”
Article 2(1) has direct effect by virtue of Article 4 of the Withdrawal Agreement, which provides that the provisions of the WA and of EU law made applicable by the WA shall produce the same legal effects in the UK as they produce in the EU, and that legal and natural persons can rely directly on provisions of the WA that meet the conditions for direct effect in Union law.
That Article 2(1) meets the conditions for direct effect was previously confirmed by the court in Re SPUC Pro-Life Limited [2022] NIQB 9(at [77]) (and, indeed, the UK Government had prospectively accepted that it could be relied on directly in guidance published by the Northern Ireland Office, available here).
The role of the Charter in Northern Ireland
The Charter was – ostensibly – disapplied in the UK with effect from 31 December 2020: EU(WA) 2018, section 5(4). There are significant caveats to this basic position. The Charter continues to apply to beneficiaries of the WA: see my previous blog post on this, here. It also continues to apply in Northern Ireland by virtue of Article 2(1) of the NI Protocol, read together with Articles 2(a) and 4 of the Withdrawal Agreement:
“[94] The combined effect of section 7A of the European Union (Withdrawal) Act 2018 (“EUWA 2018”) and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit. Thus, the Charter of Fundamental Rights remains enforceable in Northern Ireland and falls within the ambit of Article 2(1) of the Protocol.”
(The reference to “Article 4 of the Protocol” seems to be a clerical error. Article 4 of the Protocol is about the customs territory of the UK. This should read “Article 4 of the Withdrawal Agreement”).
The Charter is subsidiary, or secondary law. It cannot be relied on against a Member State in isolation from an EU law “anchor”, because it exists to condition the way in which Member States apply other provisions of EU law.
The relevant EU law “anchor” in this case was EU Directive 2003/9, also known as the Reception Conditions Directive. The Reception Conditions Directive governs the conditions of facilities provided to asylum seekers in the EU. It requires inter alia that asylum applicants have access to housing, food, clothing, employment etc., and regulates the detention of asylum seekers across the EU.
The Reception Conditions Directive was implemented in the UK via the Asylum Seekers (Reception Conditions) Regulations 2005. Regulation 5 of these regulations converted the power in section 95 or 98 of the Asylum and Immigration Act (i.e., that the Minister “may” arrange for the provision of NASS support to asylum seekers) into an obligation to provide asylum support (“if… the Secretary of State thinks that the asylum seeker or his family member is eligible for support under that section he must offer the provision of support to the asylum seeker or his family member”).
The test for the court in determining whether there was a breach of Article 2(1) is described in the following terms (at[86]):
“The court should ask the following questions:
- Does the right, safeguard or equality of opportunity protection fall within the relevant part of the Belfast (Good Friday) Agreement?
- Was the right, safeguard or equality of opportunity protection underpinned by EU law binding on the UK on or before 31 December 2020?
- Was the right, safeguard or equality of opportunity protection given effect in NI law, in whole or in part on or before 31 December 2020? …
- Has there been a diminution in the right, safeguard or equality of opportunity protection on or after 1 January 2021?
- Would this diminution not have occurred had the UK remained in the EU?”
Mr Angesom’s case
Against that background, Mr Angesom’s argument can be broken down as follows:
- Secction 2(1) of the NI Protocol had direct effect in his case. He could rely directly on the guarantee that there would be no “diminution” in his rights following the UK’s exit from the EU compared to a counterfactual in which the UK was still in the EU.
- The rights in question were derived from the Reception Conditions Directive, implemented by the domestic Reception Conditions Regulations which entitled him to certain types of asylum support. Because these rights were derived from EU law, they had to be understood and implemented in accordance with the Charter.
- There was a diminution of his rights in his case. Because he had been removed to Scotland, he was no longer entitled to rely on the Charter, and his Article 7 right to respect for his private and family life under the Charter was engaged by the decision to disperse him.
This was rejected by the court. Relying on the preamble to the Charter, which notes that the purpose of it is to “reaffirm” certain rights as they result from the constitutional traditions and international obligations of Member States, including the European Convention on Human Rights (“the Convention”), it determined that Mr Angesom could not rely on the Charter, he could continue to rely on the Convention which “largely” protected the same rights as the Charter. Accordingly, there was no diminution in his rights (at [103]).
Mr Angesom made three further arguments that there had been a diminution in his rights under the GFA:
- First, he relied on “the right to freely choose one’s place of residence” under the GFA. This was roundly rejected by the court, which noted that the ability to disperse asylum seekers arose under the 1999 Act and so long pre-dated Brexit such that there was no diminution in rights by the exercise of that power.
- Second, he relied “the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity” under the GFA relying in particular on the fact that his placement outside the customs union impacted his enjoyment of this right. This was rejected in more moderate terms by the court, which noted that he had not advanced any particular entitlement that he would have within the customs union that he could no longer avail of.
- Third, he relied on the explicit language of the Reception Conditions Directive, which, by Article 7(1) provided that asylum seekers “may move freely within the territory of the Member State or within an area assigned to them by that Member State” (albeit this is qualified by 7(2) and (3) which respectively provide that Member States may decide on the residence of asylum seeker, and may confine an applicant to a particular place). The Court accepted that Article 7(1) falls within the ambit of Article 2(1) of the Protocol, but that it was not unconditional (and so could not have direct effect) because of the conditions specified in Article 7(2) and 7(3) (at [124]). In any event, Mr Angesom had not established in practical terms how his rights had been reduced and that any such diminution was the result of Brexit (at [127]).
His application for judicial review was accordingly dismissed.
Analysis
The judgment is significant for a variety of reasons. In the remainder of this post I focus on three issues arising in it:
- The question of whether any diminution in rights was caused by Brexit;
- The need to establish a “practical” diminution of rights under Article 2(1); and
- The reliance placed on the Convention as a parallel source of rights to the Charter;
Was any diminution in rights caused by Brexit?
This was a somewhat unusual case, because the “change” alleged to have caused a diminution in the rights of the applicant was not a change to the law in Northern Ireland. Rather, the “change” was the physical transfer of the applicant out of an area where the Charter applies to an area where it doesn’t. There are very limited circumstances in which the state can force a person to move from one part of the country to another, and so this circumstance is unlikely to arise very often. This does lead to an odd context for the court’s question of whether any diminution of the applicant’s rights had been caused by Brexit. Speaking plainly, the immediate cause of any reduction in Mr Angesom’s rights was his transfer to Scotland, with the difference between the prevailing law in Scotland and in Northern Ireland being caused (in an ulterior sense) by Brexit. Because the Court ultimately decided that there was no diminution in the applicant’s rights (because he could continue to rely on the Charter) it did not reach the final question in the text, namely (at [86(v)]): “Would this diminution not have occurred had the UK remained in the EU?”
This is a distinctly unfocused way to ask this question. It is not particularly clear how close a causal relationship is required between Brexit and the state of the law or of public practice for a diminution to “not have occurred” had Brexit not happened. Causation is complex, legal causation even more so.
Moreover, this exercise requires a comparison between a state of affairs in the post-Brexit law of Northern Ireland and the state of affairs in EU law. This will often be far from straightforward. Unless, for example, clear CJEU authority exists on a particular point, it will require a thorough analysis of the position in EU law, often from first principles, in order to facilitate a proper comparison. This will require advocates to remain agile in manipulating EU law even as opportunities to practice EU law generally recede in the UK (or, at least, are transfigured into REUL or assimilated law).
The need to establish a practical diminution of rights under Article 2(1)
The judgment is clear that the relevant diminution of rights must be a genuine, practical reduction in the rights available to the applicant:
“[103] Taking this into consideration, although the applicant cannot avail of certain rights protected under the Charter, those same rights are largely protected under the ECHR which has a broader scope of application. Therefore, the court rejects the argument that the applicant’s rights have been diminished as a result of the UK’s withdrawal from the European Union on the basis that, in practice, the applicant is still entitled to those rights, albeit under a different framework.
…
[127] However, assuming this court was mistaken and that the provisions meet the conditions for direct effect under EU law and were therefore binding on the UK prior to withdrawal, the court concludes that the applicant has not demonstrated, practically, how his removal has resulted in a diminution of rights and that this was a consequence of the UK’s withdrawal from the EU.”
One might argue that the availability of the Charter is itself a “safeguard” that was removed from Mr Angesom upon his transfer to Scotland. The Court appears to want something more than this, noting that the applicant “did not advance in any great detail, which rights specifically are affected by the dispersal decision”. There is no specific argument about this in the judgment. It is probably right, at least for procedural reasons, in that the possibility that one of Mr Angesom’s rights might be negatively affected at some point in the future is too hypothetical to constitute the basis for a claim in judicial review. The difficulty for this applicant is that if he remains in Scotland, and a concrete factual situation arises where his rights have diminished as a result of Brexit, he will have no recourse to the Charter. This, again, is a byproduct of the specific factual context of this claim, because it results from his transfer to an area where the Charter does not apply. It is less likely to be an issue for applicants in Northern Ireland.
The Convention
The judgment relies on the existence of the Convention as offering a sufficient alternative to reliance on the Charter such that there was no diminution in the applicant’s rights in this case. This is plainly a determination that turns on the facts of this case (most particularly that the right relied on was Article 7 of the Charter, which has a clear analogue in Article 8 of the Convention). This legal sleight-of-hand will not always be available to a respondent.
Although the Charter and the Convention are complementary and interdependent, the Charter is broader in some respects than the Convention. The judgment may go too far in pronouncing that “although the applicant cannot avail of certain rights protected under the Charter, those same rights are largely protected under the ECHR which has a broader scope of application.” (at [103]). For example, the Charter also explicitly protects the right to fair and just working conditions (Article 31), the right to the protection of personal data (Article 8), the right to academic freedom (Article 13), the rights of the elderly to live a life of dignity and independence (Article 25), the right to preventative healthcare (Article 35), etc. The judgment is correct to note that the Charter did not create new rights, and merely “reaffirmed” existing rights. In some cases, those existing rights arose from the Convention and will remain available to UK litigants through the Human Rights Act. However, the source of many of the rights “reaffirmed” in the Charter were international law treaties entered into by EU Member States and, as a result of the dualist nature of the UK legal system are not actionable by domestic litigants unless Parliament decides otherwise (JH Rayner v Department of Trade and Industry [1990] 2 AC 418 (at 500)):
“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta [ie something done between others], from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant.”
In these cases, the Charter provides the necessary bridge between the international law commitment underlying the Charter right and the vindication of that right in the domestic context. In other words, it would be wholly wrong to suggest that the Convention and the Charter overlap to such an extent that there would be no meaningful diminution in the rights of an applicant because the Convention remained available to them.
Moreover, the Charter is often more useful from a claimant’s perspective than the corresponding right under the Convention. Whereas the Convention requires national law to be interpreted in a Convention-compliant way, failing which a declaration of incompatibility may be issued by a UK court, if national legislation cannot be interpreted in a Charter-compliant manner, the court may disapply the legislation itself.
Although it did not arise in this case, there is plenty of scope for a real distinction to apply between the protections of the Charter and of the Convention.
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