The Administrative Court dismissed the claimant's application for judicial review of the defendant Secretary of State's decision to return him to his country of origin as his had not been able to show that he had been exposed to any risk, let alone a real risk, of torture or inhuman or degrading treatment in the circumstances in which he had been returned to country A with his personal possessions.
'1 The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.'
It is clear therefore that the UK government did not wish for the ECFR to become part of UK domestic law, and Mostyn J recognised that in his judgment: 'It is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts.'
The significance of the present case is that Mostyn J was forced to consider the claimant's arguments premised on the ECFR following a controversial decision of the Court of Justice of the European Union (CJEU) in which the court stated bluntly that the opt-out cited above 'does not intend to exempt the Re-public of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter' (see joined cases C-411/10 and C-493/10: NS v Secretary of State for the Home Department and ME & others v Refugee Applications Commissioner and Minister for Justice  All ER (D) 12 (Jul)).
That begs the question – is the ECFR incorporated into British domestic law, even despite the opt-out agreed and the stance of the British government? Mostyn J thought so:
'Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.'
If Mostyn J's remarks are correct, what could be the broader implications?
Simply this – the obligations brought in by the ECFR are far wider-ranging than those agreed at Lisbon or brought into force by the Human Rights Act 1998 (HRA 1998). If, despite the opt-out, they do apply to UK domestic law, then even repealing the HTA 1998 would have no effect on them.
There's been much talk in the media about the relationship that the UK presently has with the legal institutions and instruments of the EU, but they might well be an entirely moot argument if Mostyn J is correct: 'So it can be seen that even if the Human Rights Act were to be repealed, with the result that Part 8 of the European Convention on Human Rights was no longer directly incorporated into domestic law, an identical right would continue to exist under the Charter of Fundamental Rights of the European Union, and this right is, according to the court in Luxembourg, enforceable domestically.'
Could the decision in NS v Secretary of State for the Home Department be challenged?
The government recently announced that it would undertake a consultation on the 'Balance of Competencies' in relation to EU law. The aim of the consultation is: 'To examine the balance of competences between the UK and the European Union. The review is an audit of what the EU does, and how it affects government and the general public in the UK. This piece of work will deepen our understanding of EU membership, and help shape the UK's policies in relation to the EU. The Balance of Competences Fundamental Rights Review examines the balance of competences between the UK and the European Union on fundamental rights.'
However, it is clear that unless Mostyn J's view is deemed wrong by the Supreme Court, or if NS is challenged at the CJEU, the process of extricating the UK from the human rights matrix created by European law will be much more complicated than previously thought.
What types of cases could be affected by this potential expansion of the ECFR?
Any case where a claimant attempts to exercise a right created by the ECFR that is not presently recognised by the Human Rights Act 1998.
What should lawyers do next?
Wait and see if Mostyn J's ruling is appealed. The government will have to respond to the confusion – no doubt that it will be raised again in relation to the 'Balance of Competences' consultation.
Chris Grayling recently announced he would be using a test case to clarify the situation. If it turned out that the UK was bound by the ECFR, the government has promised to take immediate steps to enforce the 'opt-out'.
Francesca Lewis is frequently instructed by the Home Office in immigration appeals to the First-tier Tribunal and beyond. She is currently developing a busy practice in all areas of work undertaken by Old Square Chambers, with a particular focus on personal injury, clinical negligence, health & safety, insurance and Immigration.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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