U.K. Refugee Lawyers: Pushing the Boundaries of Domestic Court Acceptance of International Human Rights Law

IntroductionOver the past two decades, international law in many parts of the world has been moving in a less state-centric direction and more toward universal protection of human rights through, for example, the creation of the International Criminal Court, the emergence of universal juris- diction (e.g., the Pinochet case), and international ad hoc tribunals (e.g., for Rwanda and Yugoslavia).1 At the same time, the world has witnessed the erosion of state sovereignty as the chief organizing principle of in- ternational relations.2 Much as globalization of commerce has changed the international marketplace, globalization of human rights law has changed the way many countries treat non-citizens within their borders.3Asylum law vividly illustrates the way that globalization creates ten- sion between state power and international norms.4 On the one hand, the global migration of people seeking relief from persecution has- through international treaties like the 1951 Convention relating to the Status of Refugees5-created international legal norms that supplant state power to decide who shall remain within a country and who shall be removed or excluded.6 On the other hand, states have continually attempted to reassert power over their borders by enacting stricter im- migration controls.7 This struggle has become more acute over the past fifteen years in many refugee-receiving nations, the product of a gen- eral anti-immigrant sentiment exacerbated by security concerns stem- ming from the September 2001 terrorist attacks in the United States, the March 2004 Madrid train bombings, and the July 2005 London Underground bombings.8 This conflict has been particularly acute in the United Kingdom, as a result of policies initially implemented by the Labor Government of then-Prime Minister Tony Blair to severely limit the number of persons seeking, and ultimately being granted, asylum.9 These policies have included making it more difficult for potential asy- lum-seekers to reach British territory in the first place, deporting un- successful applicants more expeditiously, and cutting legal aid funding that had previously supported the work of refugee lawyers.10This Article explores the ways that lawyers representing asylum- seekers in the United Kingdom navigate the space between a dimin- ished yet still formidable state authority over refugee status and the continuing emergence of international norms that pose a threat to such authority. The United Kingdom is a fascinating site to explore this question because, by effectively incorporating the European Conven- tion on Human Rights (ECHR)11 into its domestic law in 1998,12 and agreeing to asylum procedures common to all European countries through the European Union (EU) Qualification Directive of 2004,13 the United Kingdom consciously ceded significant control over refugee determinations to international norms.14 Moreover, in 2011 the Su- preme Court of the United Kingdom relied on the Convention on the Rights of the Child15 (which has not been formally incorporated into British law) in holding that the best interests of the child must be a primary concern in any deportation case that might result in the sepa- ration of a child from his or her parents.16These legislative and judicial developments have allowed U.K. refu- gee lawyers to simultaneously invoke international human rights norms while remaining within the bounds of domestic precedent.17 As a result, these lawyers play a critical role in shaping state power over refugee mat- ters in the wake of globalization.18 By pushing for the expanded applica- tion of international human rights treaties to individual asylum cases, refugee lawyers force judges to address the persuasiveness of these in- ternational arguments and, at least in some cases, accept them.19 Due largely to such pressure, the role of international human rights norms in U.K. asylum adjudications has expanded significantly over the past decade. …