Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law

This paper grapples with the oft-vexing question of why Article 6 of the European Convention of Human Rights (the right to a fair hearing) has been found by both Strasbourg and the UK courts not to apply to proceedings for the determination of an asylum application. The paper begins by contemplating the overall fairness and effectiveness of asylum proceedings in the UK in view of successive government cuts to legal aid. The incremental legal aid reforms over the past decade have led to the attrition of immigration lawyers and the corresponding rise in unrepresented asylum claimants within an adversarial and legally complex system. Against this negative change at the domestic level, the paper then considers the positive expansion of rights and rights language at the EU level, with the development of the Common European Asylum System (CEAS) and the new environment created by the EU Charter of Fundamental Rights (following the entry into force of the Lisbon Treaty). In view of these two opposing strands of law, it is questioned whether Strasbourg’s traditional dogmatic course (followed rigidly by the UK), of refusing to apply Article 6 of the ECHR to asylum disputes, is still justifiable. The paper concludes that Strasbourg has created an uneasy dichotomy between ‘civil rights’ and public law but that the development of EU asylum law brings asylum proceedings within the autonomous meaning of ‘civil rights’ for the purposes of Article 6(1) ECHR. The author therefore urges the European Court of Human Rights (ECtHR) and the UK courts, in accordance with the evolutive principle, to untie themselves from the old, misconceived Strasbourg jurisprudence, and to consider whether the development of EU asylum law has transformed asylum proceedings into proceedings of ‘civil rights’ under Article 6(1) ECHR