Why the British Government should consider re-opening the Dubs amendment to protect unaccompanied children in Europe

In the face of unprecedented numbers of people in forced displacement world-wide, European states have been forced to consider their own policy responses with the arrival of significant numbers of people seeking sanctuary in Europe. In the UK, the so-called ‘Jungle’ camp in Calais, France, was a highly salient issue on the UK political agenda, not least because it appeared that most of the individuals in this makeshift camp were hoping to continue their journey onto the UK. However, since the camp’s demolition in 2016 many have now returned, and there are again approximately 700 displaced people living in the area, among them, hundreds of unaccompanied children. As is so often the case in large-scale humanitarian crises, the situation in Calais being no exception, children are amongst the most vulnerable individuals. They face an increased risk of exploitation and abuse, often at the hands of traffickers, where high levels of insecurity and precarity directly affect their rights to health, education and development at a crucial time in their lives.

As a signatory to the Universal Declaration of Human Rights and the UN Convention on the Rights of the Child, the British Government is committed to upholding the rights of the child regardless of nationality, race, colour, sex, language or religion. The unaccompanied children who currently reside in Calais are of direct relevance to the UK and its policy makers – many hope to reach the UK and are likely to have family and support networks there. Due to the lack of legal routes to seek asylum or apply for family reunification in the UK, these vulnerable children continue to risk their lives at the back of lorries each night, and their day-to-day existence is characterised by violence and ill-health. Despite its international commitments, in February 2017 the UK Government withdrew its support for a piece of legislation known as the Dubs amendment. First introduced in 2016, the legislation was intended to provide a safe, legal route for unaccompanied children to reach the UK from France, Greece and Italy.

Our findings clearly indicate that schemes like the Dubs amendment are still very much needed to protect the human rights of vulnerable children. After the aforementioned demolition of the ‘Jungle’ camp, 98.8% of the children we interviewed in April 2017 were unaccompanied. The living conditions for these vulnerable children are far below any internationally expected standards, with the majority finding themselves in destitution and without access to clean water or shelter. An alarming 85.9% of children said they don’t feel safe in and around the Calais area, and 96.5% of children had experienced police violence in the area, including tear gas, physical violence and verbal abuse. Alongside violence and detrimental living conditions, our research found that only 16.9% of children had access to information about their rights and how to break out of their current situation. Instead, they continue to endure inhumane conditions and abuse in the hope that they will eventually be able to cross the border and, for many of them, submit their asylum case or family reunification application to the British Home Office.

In order for the British Government to move towards effective policy action to resolve the situation in Calais, the rights of the child as enshrined in the Universal Declaration of Human Rights and the UN Convention on the Rights of the Child need to be at the centre of policy making.  A key decision that would help the Government honour its tradition of human rights and child protection would be to re-open the Dubs scheme, allowing unaccompanied children safe, legal passage to reach the UK. Once re-opened, its criteria ought to be expanded to ensure that the most vulnerable children do not risk being excluded, and a revised cut-off date should be implemented to address additional concerns. Importantly, a multi-agency effort is required to ensure that those children who qualify under the Dublin lll regulation with relatives in the UK are identified and quickly transferred. Safe legal routes such as the Dubs scheme and Dublin lll are integral in combatting the growing power of traffickers who are known to exploit vulnerable children.  As well as this, the UK must continue to work with French counterparts to advocate for the safeguarding and rights of the child on French soil. The current approach of intense policing and heavy-handedness revealed by RRDP research needs to stop, as it does nothing to resolve the situation. Instead, resources should be dedicated to setting up a standard safeguarding framework, comprising monitoring mechanisms to minimise the risk of unaccompanied children going missing and falling into the hands of traffickers, along with an adequate team of social workers, medics and interpreters. The provision of water and shelter is also urgently required in the interim.

While much of the discussion in Britain on unaccompanied children in displacement has revolved around proof of age, nationality and the strength of family ties, the human rights situation faced by displaced children in Europe continues to deteriorate. Due to the serious nature of the child protection failure unfolding in Calais and beyond, it appears to be of utmost importance that the debate in the UK moves beyond such divisive matters and that the focus is shifted towards finding constructive solutions to the situation. Regardless of the motivation for the journey, unaccompanied children must be treated as children first and foremost and afforded adequate levels of protection under national and international law.

Alice Lucas is the Senior Programme Officer at Refugee Rights Data Project (RRDP)

RRDP envisions a world in which the Universal Declaration of Human Rights applies to all individuals, including refugees and people in displacement. To work towards their vision, they conduct first-hand field research, develop partners’ awareness of the situation on the ground, and actively engage in dialogue with all stakeholders to inform policies and practices that affect refugees and displaced people seeking sanctuary in Europe.

You can follow RRDP on Twitter: @RefugeeData

The ECHR and the 'living instrument' doctrine

In Bright Blue’s new report ‘Fighting for freedom?’, former High Court Judge and QC Sir Michael Tugendhat assesses the historic and future relationship between conservatism and human rights. In opposition to previous Conservative Party commitments to repeal the Human Rights Act (HRA) and the Prime Minister's’ scepticism of the European Convention on Human Rights (ECHR), Sir Michael defends the UK’s current human rights framework, arguing that the Conservatives should not pursue either of these changes.

The report also addresses the seven main Conservative critiques of the UK’s current human rights framework that Sir Michael identifies. These include:

  • International courts instructing the UK

  • A higher body of law than UK law (the ECHR)

  • Mission creep and judicial activism of European judges

  • The undermining of UK courts

  • The undermining of the UK Parliament

  • Giving prisoners the right to vote

  • The undermining of British security

Sir Michael responds to each of these criticisms methodically, demonstrating the mistakes and bad faith that often motivate them, while also conceding the need for reform in various specific areas.

Perhaps the most contentious of these criticisms is the idea that the ECHR has been guilty of ‘mission creep’ over the past 70 years at the hands of activist European and British judges.

This claim was made most prominently in ‘Protecting human rights in the UK’, a report by the Conservative party proposing changes to Britain’s human rights laws. The report argues that the European Court of Human Rights (ECtHR) has developed ‘mission creep’ by adopting “a principle of interpretation that regards the Convention as a ‘living instrument’.” This principle allows the court “to expand Convention rights into new areas, and certainly beyond what the framers of the Convention had in mind when they signed up to it.”

This criticism of the ECHR as a ‘living instrument’ is misplaced and shows little understanding of how laws are made and interpreted. Treating the ECHR as a ‘living instrument’ means conferring to the words of the convention the meaning they bear at the time the ECtHR is making a decision, rather than the meaning the words might have borne at the time the ECHR was entered into by the framers in the early 1950s, or the original intent of the framers (where that is discoverable).

The judicial activism that the ‘living instrument’ doctrine requires should not be regarded a fault, as it is essential if laws are to remain relevant. UK common law is itself a body of law that has developed through judicial activism, and necessarily so. First, because there is no foundational document setting out the common law which was framed at a particular date. Second, because much of common law was formed during the middle ages, when standards were very different from today. If judges had not been as activist as they were in the sixteenth to eighteenth centuries, we would not have the common law protection of human rights which was the source for the ECHR.

Bearing the above in mind, the criticism that the ECHR has expanded “beyond what the framers of the Convention had in mind when they signed up to it” starts to look distinctly unconvincing. The framers of the ECHR would have understood that it would need to be applied in circumstances that were unforeseeable at the time, and that it would therefore have to be treated as a ‘living instrument’. Since the UK signed the ECHR in 1950 there have been significant changes in attitude to matters such as capital punishment and discrimination on grounds of gender or sexual orientation. The ECHR must also now be applied in relation to things which did not exist in 1950, such as CCTV, IVF, the internet, various medical advances, and much more besides. Treating the ECHR as a ‘living instrument’ is essential if the law is to adapt to these changes.

It is difficult to find fault with the ‘living instrument’ doctrine in principle, and upon closer examination, most of the objections towards the ECHR by Conservatives involves criticism of individual cases, rather than the ‘living instrument’ doctrine itself. Conservatives seem to object not so much to judicial activism, but to instances of judicial activism on issues where they disagree with the judgement of the ECtHR. For instance, the ECtHR has been activist in its interpretation of article 10 with little objection by Conservatives, as it has resulted in increased press freedom in relation to matters of public interest.

However, there has been widespread criticism of the ECtHR’s decision that the UK’s blanket ban on voting for prisoners is in violation of Protocol 1 of the ECHR. This decision has been used as an example of a case in which the ECHR has been interpreted too broadly, and resulted in undue judicial meddling in politics. In Hirst v UK (No 2), the ECtHR accepted that depriving prisoners of the right to vote can be justified in serious cases. But it held that the prohibition in the UK violated the rights of some prisoners because the disqualification was “irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances”.

Whilst a reasonable person could object to this decision by the ECtHR, the principle that the ECHR should be regarded as a ‘living instrument’ is not the problem here, rather it is the application of this principle to a particular case. Therefore, the claim by the Conservative Party that the ‘living instrument’ doctrine is a powerful objection to the ECHR is unfounded. Furthermore, whilst the ECtHR may have applied the doctrine too liberally in some cases, in the vast majority of instances the ECtHR is simply updating the law to maintain its relevance in the face of changing attitudes and circumstances.

Freddie Lloyd is a research assistant at Bright Blue

Conservatism and human rights - Episode 31

In the final human rights podcast Laura speaks to Sir Michael Tugendhat, former High Court judge and QC, about the report he authored for Bright Blue 'Fighting for freedom?' in which he sets out the historic and future relationship between conservatism and human rights. Bright Blue director Ryan Shorthouse argues that the Conservatives should champion human rights in order to attract more younger voters.