Written evidence submitted by The British Institute of Human Rights (AAC0016)
The British Institute of Human Rights (BIHR) is a charity working in communities across the UK to enable positive change through the practical use of human rights law. We work with people to provide the information they need to benefit from their rights; with community groups to advocate for social justice using human rights standards; and with staff across local and national public bodies and services to equip them to make rights-respecting decisions. This enables us to provide policy analysis which is based both on human rights law, and people’s experiences of their human rights.
Our work includes an annual community programme that has been running since 2021. The programme includes a series of free awareness-raising workshops to support community groups to use human rights law in their advocacy, and a co-production element where we work intensely with groups to create a human rights resource that addresses social justice issues. Every year, we have had significant demand from groups working in the asylum sector, with asylum accommodation being a key area of concern.
Over the course of the programme, we have worked with African Women Empowerment Forum to create a guide for people seeking asylum accessing public services; Bomoko NI to create resources on asylum accommodation in Northern Ireland; Migrants’ Rights Network to create a resource on human rights in asylum accommodation; and Room to Heal to create guides for people seeking asylum, available in seven different languages. Across all this work there are a number of key common concerns around asylum accommodation, enabling us to provide an overview of shared and repeated issues which risk people’s human rights.
Some community programme participants have also gone on to join BIHR’s RITES Committee – a co-production group of Lived Experience Experts who have used the Human Rights Act in their everyday lives or work to bring about positive change. From members of refugee rights groups to staff working in frontline public services, each of our experts brings a unique perspective of our Human Rights Act in practice which we work to amplify through our policy work.
This submission is a response to the Home Affairs Committee’s call for evidence on asylum accommodation. It focuses on the application of human rights law to the delivery of asylum accommodation. This includes the need for greater awareness and understanding of the way human rights apply not just as part of a protection claim but in all interactions with public services in the UK, such as in social care, housing and welfare support, education and more.
Unfortunately, due to time constraints, we were unable to create a fully co-produced response to the consultation. We would urge the Committee to make time to further consult with Lived Experience Experts in order to ensure that the practical realities of the current system of asylum accommodation and its impact on people’s human rights are given due regard.
In the context of the asylum system, human rights are often associated with protection claims and the obligation to protect them is associated with central government, courts and judges. However, the public bodies in the UK with legally mandated human rights obligations go far beyond this: the Human Rights Act applies to all our interactions with public authorities. In fact, the public bodies with the biggest and most frequent impact on people’s everyday lives are often not judges and lawyers but social workers, healthcare professionals, teachers and housing officers.
It is therefore essential to look at the provision of asylum accommodation through a human rights lens. However, while protection claims are typically handled by lawyers, conversations about asylum accommodation often involve individuals or support workers directly contacting housing officers and asylum helplines. With little public information on human rights available to those outside the legal sphere, this can mean that human rights are often missing from those conversations, preventing legal duties from being met and positive outcomes for people from being achieved.
Throughout this submission, we therefore call on the Home Affairs Committee to highlight the need for increased understanding and awareness of the human rights of people in asylum accommodation and the Human Rights Act legal duties of those providing it – whether State services or private providers.
Our recommendations:
- Make human rights duties set out in the Human Rights Act explicit in the commissioning of asylum accommodation provision and establish a clear process to monitor their fulfilment.
- Support public body staff working in asylum accommodation to understand and fulfil their human rights duties under the Human Rights Act through tailored training and support and resources that are legally accurate and are relevant and practically focused.
- Make public information on human rights (as set out in the Human Rights Act) and how these are relevant in asylum accommodation available to people. This includes being accessible in a variety of languages and formats to enable people to understand their rights, and when and how to challenge rights-risking services.
The Human Rights Act
The UK’s Human Rights Act takes 16 of the fundamental human rights written into the European Convention on Human Rights and puts them into UK law. This means they can be enforced in UK courts rather than having to go the European Court on Human Rights in Strasbourg. The Human Rights Act also puts legal duties on all public bodies to respect, protect and fulfil people’s human rights (Section 6, Human Rights Act). These public bodies also have a duty to apply other laws and policies in a way which upholds people’s human rights so far as possible (Section 3, Human Rights Act). This in includes laws and policies specifically affecting asylum accommodation.
Some of our human rights are absolute, meaning they can never be interfered with by public officials. Others are known as “non-absolute”, meaning they can only be limited where it is lawful (there is a law that allows it); legitimate (for a permitted reason); and proportionate (the least restrictive option available) to do so.
Importantly, human rights are universal; they belong to all of us. In fact, "the whole point about human rights is that they apply to all human beings: and that even and perhaps particularly those whose causes are unpopular, like prisoners and immigrants, need protection against the abuse of state power” (Dinah Rose, KC). While non-absolute rights can sometimes be limited to protect us or others from harm, the starting point is the same for all of us.
Many of the 16 rights in the Human Rights Act are relevant in the provision of asylum accommodation. Through our work with community groups, we have seen several that consistently arise.
This is an absolute right protects us against very serious harm, including physical harm, and significant mental and emotional suffering. Rather than a fixed list of what constitutes “inhuman and degrading treatment”, reference needs to be had to the impact of the treatment on the person, particularly in light of factors such as their age, sex and mental and physical health. Harm which does not meet the threshold (i.e. is not considered “severe” enough) to engage Article 3 may still engage Article 8, the right to respect for private life (discussed below).
Within asylum accommodation, Article 3 issues may arise when somebody is housed in accommodation that is unsanitary, unsafe or unsuited to their needs.
“One asylum seeker also recounted feeling unsafe in a rat-infested hotel, with a lack of support from authorities to address these hazardous living conditions. Such situations not only pose health risks but also contribute to a pervasive sense of insecurity and vulnerability among migrants and refugees.” – African Women Empowerment Forum
It could also apply where somebody with exceptional personal circumstances (such as being pregnant or having acute health issues) is refused or evicted from accommodation, putting them at risk of destitution.
In real life: Lola’s story
Lola* was a pregnant woman who had just been refused asylum. She was living in government-arranged accommodation and was issued a ‘termination of support’ notice while she was giving birth in hospital. She was a lone parent, and this was her second child. The notice period expired while she was still in hospital and on returning home, she and her children would have to leave their flat. Lola got some support from a local charity who said to the housing provider that evicting the family in these circumstances might breach their right not to be treated in an inhuman and degrading way (Article 3). The charity wrote to the housing provider explaining their duty under the Human Rights Act and asking for the notice period to be extended to give Lola more time to find appropriate housing for her family. The provider decided to amend the status of the notice, giving Lola and the charity time to apply for [Section 4] support for the family. The application was successful and housing for the family was secured.
- Example from BIHR’s work with Room to Heal
(*name changed for anonymity)
This is a non-absolute right that protects our autonomy, wellbeing and ability to be involved in decisions that impact our lives. The application of this right to people’s lives will be person-specific. For example, family does not refer only to biological kin but to the people we have close personal ties with. Similarly, home does not always mean a house or a flat but can be temporary accommodation, a room in a hostel or anywhere somebody is residing. As this right is non-absolute it can be restricted where the three tests of lawful, legitimate aim, and proportionality are met by public officials seeking to make the limitation. In our experience, this framework is rarely discussed or evidenced, and in practice there is often room for making different more right-respecting decisions when focusing on proportionality and the least restrictive approach to achieve the aim.
Within asylum accommodation, Article 8 issues may arise when people’s activities are disproportionately limited within asylum accommodation. For example, this can arise where people are prevented from cooking their own foods and/or are not able to access culturally and nutritionally appropriate foods.
“Asylum seekers in Home Office accommodation had their kitchen cooking appliances disconnected without any notice, or reason for why they were being made inoperable. Residents have now been told they are not allowed to cook their own food or have their own appliances. We were told that they could only take the issue forward if an individual within the accommodation raised the matter, however asylum seekers have been warned by management that if they complain there is a risk they could be moved to a different accommodation. The ability to cook food in this accommodation is vital for the dietary needs of residents with digestive ailments but importantly for those trying to remove the sense of isolation to build their own communities in these spaces- cooking and eating that food together is an important part of building that community while they wait in limbo for their asylum decisions.” – Migrants’ Rights Network
It could also apply where people are required to move far away from their support networks with no consideration of their personal circumstances.
“The need for [a human rights] guide was identified during consultations at Bomoko NI's advice clinic, revealing that refugees and asylum seekers often face challenges related to housing, such as being relocated without choice or consultation. Being relocated without taking into account that children will travel miles to attend schools which affects their physical, emotional, and mental well-being even to focus on their studies.” – Bomoko NI
Similarly, where asylum accommodation does not meet (or even exacerbates) somebody’s physical or mental health needs, this could put their right to private life at risk. This could be because accommodation is not suitably adapted for a person with disabilities; it could be because people are forced into shared spaces without consideration of cultural sensitivities or previous traumas; or it could be because of a hostile or intimidating relationship with housing officers that impacts on the individual’s wellbeing.
“One person transitioning to asylum status faced not only practical difficulties but also a profound lack of support, leading to both mental and physical health issues. The absence of adequate protection and assistance from public services exacerbated her struggles.” – African Women Empowerment Forum
In real life: Mrs M’s story
When Mrs M* arrived in Belfast seeking asylum with her four children, they were placed in temporary accommodation. Mrs M and her family are Muslim. They shared a small hotel room where Mrs M had to get changed in front of her children which is not allowed in her culture, and the food provided was not halal. The lack of appropriate food and accommodation was distressing for Mrs M. She said, “the conditions were so difficult. We felt discriminated against and abandoned and no one cared about us.”
- Example from BIHR’s work with Bomoko NI
(*name changed for anonymity)
This right protects equal enjoyment of other human rights. It is sometimes referred to as a non-absolute right because not all differential treatment (or lack thereof) will be classed as discrimination. It will not be discrimination if it is objectively and reasonably justified.
Article 14 is often referred to as a “piggy-back right” (or conjunctive right) because it can only be raised in connection with another human right in the Human Rights Act. For example, it could be raised in connection with Articles 3 or 8, discussed above. The other right does not have to be breached, just impacted, in order to raise the right to be free from discrimination along with it.
Within asylum accommodation, Article 14 issues may arise when people are not given support to allow them the same access to public services as others, thereby impacting on their rights to private life, wellbeing, education and more. For example, if people who don’t speak English are not offered interpreters when applying for housing or support, their right to be free from discrimination may be at risk.
“I think the [human rights] guide is extremely helpful and I have used it twice in the last couple of weeks. Both were in regard to challenging statutory services refusing to offer interpreting for clients, when needing to access key and urgent services such as making a homeless application. By using your guide and making the Local Authority aware that they risked breaching the Human Rights Act, interpreting access was then offered and the clients were able to fairly apply for their entitlements.” - Caseworker Coordinator, British Red Cross on using the BIHR and Room to Heal human rights guide
It may also apply where people in asylum accommodation are subjected to discriminatory treatment by accommodation staff, which may impact on their wellbeing under Article 8 or, in extreme cases, subject them to inhuman or degrading treatment under Article 3.
“Some asylum seekers have raised incidents of verbal abuse from accommodation staff including circumstances where residents have been called ‘stupid’. Attacks of this nature can exacerbate existing trauma and mental health issues and reinforce feelings that asylum seekers are not safe or welcome in the UK. No one should be subjected to racist or discriminatory attacks based on their immigration status, race, or nationality, especially those who are seeking protection.” – Migrants’ Rights Network
As noted above, the Human Rights Act puts duties on all public bodies to respect, protect and fulfil people’s human rights. This includes:
The definition of “public bodies” under the Human Rights Act includes not just core public bodies (such as the Home Office or Social Services) but also “any person certain of whose functions are functions of a public nature”. This is what’s known as a “hybrid public body”.
This means a body does not need to be a traditional public body to have legal duties under the Human Rights Act. The emphasis is on the nature of the service being delivered (are they “generally expected to be performed directly or indirectly by the State”?) and not the nature of the body delivering it. This is important as we no longer live in a time where functions we traditionally associate with the State, such as social housing, are always delivered directly by the State. This was emphasised during parliamentary debate on introduction of the Human Rights Act, with the then-Secretary of State for the Home Department explaining the Act “had to have a definition of a public authority that … took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.”
There is no single test to identify a public function, but case law has considered factors such as exercise of statutory powers and whether the body delivering the service is being funded by the State to do so in place of a statutory service.
Shakar applied for asylum in the UK and the Home Office had a legal duty to house her while considering her application. The Home Office contracted Serco, a private company, to provide housing on their behalf. Shakar’s application was refused and she was told she had to leave her house. She was told that if she did not leave by 13th June 2018, Serco would ask a court to evict her. However, on 29th July 2018, instead of going to court, Serco changed the locks on Shakar’s house so she couldn’t get back in. Shakar said this breached her Article 8 right to private life and Article 3 right to be free from inhuman or degrading treatment. The Court decided that the Home Office was the one that ended Shakar’s tenancy, not Serco. Serco took action after this had already been done, and its responsibilities came from its commercial contract with the Home Office. The Court therefore said Serco was not “carrying out acts of a public nature”. However, the Court also said that “if arrangements are made with a private company to provide accommodation, responsibility for [human rights duties] is not delegated, but remains with the Home Secretary”. This means the Home Office still has duties to uphold the human rights of people living in asylum housing even though if it has contracted management of the housing to a private company.
This means that when commissioning private providers to deliver asylum accommodation, the Home Office has a duty to ensure that they do so in a way that protects people’s human rights. This needs to be established not just in the initial commissioning of services (whether through regulation, policy, support contracts or otherwise) but through ongoing monitoring and evaluation. As demonstrated by Migrants’ Rights Network’s examples above of people experiencing verbal abuse from accommodation staff or being threatened with relocation if they complain, there may be many reasons that people in asylum accommodation do not feel able to report human rights risks. Not only does this support the need to empower individuals to understand and access their rights (discussed below), it emphasises the need for established contract and delivery monitoring processes that can identify issues and make changes before they escalate.
Recommendation: Make human rights duties set out in the Human Rights Act explicit in the commissioning of asylum accommodation provision and establish a clear process to monitor their fulfilment.
“I know a lot more than I did before … real-world examples really helped me to understand how people’s rights are affected and how this applies to my casework.” Participant in BIHR’s human rights programme for the Housing Ombudsman Service
We have seen how this approach helps to boost staff’s confidence when talking about human rights – particularly in complex areas such as housing. This increased knowledge and confidence can then support them to raise issues and make changes that lead to positive outcomes. For example, 72.41% of survey respondents from the Housing Ombudsman Service said that after our human rights programme, they would “consider if a landlord has given due regard to its obligations under the Human Rights Act.”
Alongside the increase in confidence, we also typically see an increase in support for the Human Rights Act following our programmes. Far from the idea that human rights are a burden, we find consistently hear from public body workers across all sectors that greater understanding of their legal duties under the Human Rights Act provides clarity, improves working relationships, and enables them to advocate for and provide vital support to the people they work with.
“the Human Rights Act has given us a legal, objective, decision making framework, provided by no other law or policy, to ensure rights are protected and people and staff are safe." - Sarah, NHS Worker
“I was able to use my new-found knowledge and confidence in terms of human rights to support a young person at her Mental Health Act Tribunal Meeting recently… As a result of challenging practice in the tribunal, the Judge ruled that the hearing could not continue, which was positive for the young person, as a number of things resulted [including that] the young person said that they had a new-found respect for me and this has helped therapeutic relationships as a result.” – Example from BIHR’s work with staff in inpatient Children & Young People’s Mental Health Services
“without a framework to underpin our decision-making, social work responses would have no benchmark, no consistent way of navigating thorny dilemmas and would likely have limited consistency – based on the issue, the context, the players involved and the values of the practitioner rather than a sense of fairness, respect, equity, dignity and autonomy… For me the [Human Rights] Act is the authority that the profession rests, and relies upon, to deliver both our statutory and non-statutory duties”. - Daisy, Independent Social Worker, Why Our Human Rights Act Matters in Social Work
Recommendation: Support public body staff working in asylum accommodation to understand and fulfil their human rights duties under the Human Rights Act through tailored training and resources that are legally accurate and are relevant and practically focused.
Supporting people to understand and claim their legally protected rights under the Human Rights Act:
In order to further support these positive outcomes, it is essential that people living in asylum accommodation are also given clear and accessible information on their rights and how to access them – including practical guidance on how to challenge rights-risking practices. Raising awareness amongst both people accessing services and people working within them of the rights and duties under the Human Rights Act can help ensure that putting human rights into practice is a collaborative, rather than combative, process.
In particular, our work with community groups has highlighted the need for human rights information in a variety of languages. As part of our work to co-produce a human rights guide with charity Room to Heal, we organised a testing session with members of asylum and refugee rights organisations from across the UK. Overwhelming feedback from the session was that language is a key barrier that people face when it comes to accessing their rights. In particular, participants highlighted the demand for information to be made available in Amharic, Arabic, Kurdish, Sorani, Tigrinya and Farsi.
Participants stressed the importance of human rights information being available in formats that can “empower clients” and ensure individuals have ownership of their own cases. This is not just an ethical point but a practical one: the fundamental principle of access to justice underpins the need for individuals to not be reliant on (often stretched or unavailable) advocacy services. Individuals must also be supported to have the confidence and capacity to claim their human rights in their own interactions with public power.
“Being aware of my rights as an asylum seeker residing in hotel accommodation not only provides me with a sense of empowerment but also ensures that I am protected regardless of my status. This [human rights] guide is a much-needed resource which can help many feel more confident in asserting their fundamental rights.” – Migrants’ Rights Network
As this quote reflects, human rights are universal and belong to everyone. In order to support a culture of respect for human rights within the asylum accommodation system and beyond, it is essential that this principle is not only recognised but also reflected in the language used in public information and, more broadly, by parliamentarians and those in public power in general.
“For me, it’s one of the biggest strengths of the Human Rights Act because we don’t see that same universality in so much legislation. So much legislation is built on power structures and exceptions and not allowing it to be for everyone in that same way and I think that’s a really important part of the Human Rights Act in that it is for everyone.” – Charli, Lived Experience Expert, Why Our Human Rights Act Matters to Everyone
Recommendation: Make public information on human rights (as set out in the Human Rights Act) and how these are relevant in asylum accommodation available to people. This includes being accessible in a variety of languages and formats to enable people to understand their rights, and when and how to challenge rights-risking services.
Feb 25