'Asylum seekers, housing and human rights
- the way forward'
Briefing by Coalition for Racial Equality and Rights
The Coalition for Racial Equality and Rights (CRER) has organised a seminar on
'Asylum seekers, housing and human rights - the way forward' to celebrate
International Human Rights Day.
There are many human rights issues impacting on the lives of BME people in
Scotland such as an unequal enjoyment of economic and social rights. Human
rights issues may be about process such as rules not being applied, about a
particular subject group such as BME children or about an issue such as education.
Understanding how to apply a human rights framework to current issues of concern
is best illustrated by an example and the one we have chosen is housing provision
for asylum seekers in Glasgow. Examining the displacement of asylum seekers from
their current homes through a human rights lens offers a new perspective and fits
with the theme of International Human Rights Day which is ‘human rights defenders
who act to end discrimination’.
CRER acknowledges that many people and organisations have spoken out on
human rights issues over many years. In so doing, they have given effect to the
UN’s vision that human rights are protected when individuals, in both their social and
professional lives affirm they are a human rights defender and promoter in Scotland.
We seek to have many more human rights defenders in Scotland.
Human Rights – Statutory Duty
Human rights belong to human beings, equally, and are legally enforceable in
Scotland as:
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Section 6 of the Human Rights Act 1998 requires all public authorities to
comply with the European Convention on Human Rights (ECHR). This duty
covers thousands of public authorities such as the UK Border Agency, local
authorities, health boards and housing associations in Scotland.
Section 29 of the Scotland Act 1998 requires MSPs to comply with the ECHR.
This duty is relevant when passing legislation at the Scottish Parliament.
Section 57 of the Scotland Act 1998 requires Scottish Government Ministers,
positively, to comply with the ECHR. This duty include the Minister for
Housing and Communities.
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The rights are contained in the ECHR include:
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Article 2 – right to life
Article 3 - freedom from torture and ill-treatment
Article 4 – ban on slavery and forced labour
Article 5 - personal freedom
Article 6 - fair trial and fair process
Article 7 – no punishment without law
Article 8 - right to respect for private and family life- including autonomy in
decision making and the right to live with dignity
Article 9 – freedom of thought, conscience and religion
Article 10 - right to hold opinions and freedom of expression
Article 11 – freedom of peaceful assembly and freedom of association
Article 12 – right to marry and to found a family
Article 13 – effective remedy
Article 14 applies to all the Articles - no discrimination in the enjoyment of rights!
This is not an individual right but one that is partnered with all the other rights.
Protocol No.1 to the ECHR was agreed afterwards and so we also enjoy:
• Article 1 – the right to the peaceful enjoyment of possessions
• Article 2 – the right to education
• Article 3 – the right to free elections
Each alleged violation of human rights is considered by the court in Scotland as you
no longer need to go to the European Court of Human Rights (ECtHR) in Strasbourg.
However that remains an option if you fail to get satisfaction domestically. Violations
may be alleged covering a single right such as Article 3 or several rights such as
Articles 8, 14 and Article 1 of Protocol No.1.
There is a positive obligation on the Scottish Government and the public sector, to
adopt measures to ensure that fundamental rights under the ECHR are secured.
Where a policy/procedure has the potential to interfere with an individual’s human
rights the UK or Scottish public authority must then consider three matters:
1. Where there is a potential negative impact is there a legal basis in the
relevant domestic law?
2. Is the aim of the policy a legitimate aim being served in terms of the relevant
equality legislation or the Human Rights Act?
3. Is the impact of the policy proportionate to the legitimate aim being pursued?
Is it the minimum necessary interference to achieve the legitimate aim?
Even if the public authority decides that interference is lawful, legitimate and
proportionate, its decision remains subject to review by the Court for conformity with
the requirements of the ECHR.
Example of Article 8
Article 8 awards us all equally ‘the right to respect for private and family life, home
and correspondence’. ‘Family life’ may extend to ties between relatives, ‘home’
prevents the deliberate destruction of a dwelling e.g. by fire and ‘private and family
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life can relate to family relationships including the development of personality.
Article 8 places two duties on the UK State:
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Negative duty on the State to refrain from arbitrary interference in a person’s
rights
Positive duty to adopt specific measures designed to secure respect for the
right e.g. that domestic law ensures effective respect for family life.
State interference in ‘home’ is clear in the case of the 600 households receiving a
letter stating the UK Border Agency has notified Glasgow City Council of its intention
to terminate the contract to provide housing for asylum seekers dispersed to the city
and that they would be required to move within the ‘Scottish region’. The issue is
whether the decision to interfere was lawful, legitimate and proportionate.
The factors that should be considered prior to making the decision are the ‘home’
and ‘family life’ established by people, the social networks in place, the fact that
vulnerable children have settled in local schools etc. Whereas the issue may have
been viewed in narrow terms of contract law and public service cuts, in fact the
service supplied by Glasgow City Council has been praised because of the
additional support provided to families which goes beyond providing the physical
structure of a home. The dispute is not about entitlement to a house as that is
settled but the respect that needs to be given, under human rights law, for the actual
home created and family life established.
This is a very interesting example as all of the key players have positive and
negative human rights duties – to refrain and protect from arbitrary interference:
 UK Border Agency
 Glasgow City Council
 Glasgow Housing Association
In the case of Buckley v UK (1996) the ECtHR set out clear guidance for the
deliberations of the public sector and the process whereby the individual can
exercise his/her rights:
 ‘...the applicant's right to respect for her "home is a right which is pertinent to
her and her children's personal security and well-being’. (para 76)
 “The decision-making process leading to measures of interference must be
fair. How the State defines and implements the procedural safeguards
available to people is therefore key. In that case the individual had the right of
appeal to a court, the right to make representations to an independent expert
who was part of the appeal process plus the right to seek judicial review.
 ECtHR’s task is to determine, whether the reasons relied on to justify the
interference in question are relevant and sufficient under Article 8.
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However, Article 8 does not necessarily go so far as to allow individuals'
preferences as to their place of residence to override the general interest.
International Human Rights Standards
Human rights standards exist beyond Europe and international standards are set by
the UN which has agreed loads of treaties and conventions. Governments may
admit to ‘signing’ a Treaty but it only becomes effective when a Government has
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‘ratified’ it. The UK has ratified seven UN Treaties which means that all our laws and
policies comply:
• International Covenant on Civil and Political Rights (ICCPR)
• Convention for the Elimination of all Forms of Discrimination Against Women
(CEDAW)
• Convention on the Rights of the Child (UNCRC)
• Convention on Economic, Social and Cultural Rights (CESCR)
• Convention Against Torture (CAT)
• International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD).
• Convention on the Rights of Persons with Disabilities (CRPD)
The seven are important as both the EHRC and the SHRC have been given specific
duties by the UN to monitor their implementation between the periodic reviews
convened by the UN to determine progress on implementation. The content of all
seven should inform the design, delivery and funding of public services in Scotland
e.g. ICERD requires our Government to implement its standards to the maximum
extent of its available resources even in a period of economic downturn. So far we
only have one action plan ‘Do the Right Thing’ to implement the UNCRC in Scotland.
Every single Treaty is relevant to BME in Scotland and when the UN periodically
holds the UK to account on implementation, there are recommendations specific to
BME including:
UN Committee on Elimination of All Forms of Racial Discrimination
“The Committee is concerned about the increasing racial prejudice against ethnic
minorities, asylum-seekers & immigrants reflected in the media & the reported lack of
effectiveness of the Press Complaints Commission in dealing with this issue. The
Committee recommends that the State party consider further how the PCC can be
made more effective ...” (Para 13 Concluding Observations, 2003)
UN Committee on Economic Social and Cultural Rights on the UK
“The Committee continues to be concerned about the de facto discrimination
experienced by some of the most disadvantaged and marginalized individuals and
groups, such as ethnic minorities and persons with disabilities, in the enjoyment of
their economic, social and cultural rights” (para 16)
‘Committee is concerned about the discriminatory impact of some counter-terrorism
measures on the enjoyment of economic, social & cultural rights of certain groups in
the State party... and recommends that the State party ensure that its counterterrorism measures do not have a discriminatory effect on the enjoyment of the
ICESCR’. (Concluding Observations, 2009 Para 17)
UN Committee on Rights of the Child
The UK must ‘ensure full protection against discrimination on any grounds, including
strengthening its awareness-raising & other preventive activities against
discrimination ‘if necessary, taking affirmative actions for the benefit of vulnerable
groups of children, such as Roma and Irish Travellers’ children; migrant, asylumseeking and refugee children; ..and of children belonging to minority groups’.
(Concluding Observations Para 25b)
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“Reconsider its active policy of recruitment of children into the armed forces and
ensure that it does not occur in a manner which specifically targets ethnic minorities
and children of low-income families”. Children are defined as being under 18 years.
(Concluding Observations on Optional Protocol on Armed Conflict Para 15a)
Next Steps
Will you be a human rights defender who acts to end discrimination? Here are some
ideas:
 Ask for the adoption of a Human Rights Based Approach in Public Authorities
covering: Principles, Leadership & Governance, Strategy and Policy,
Processes and Practice
 Think about how you can give effect to human rights standards and principles
in your sphere of influence – human rights principles cover fairness, respect,
equality, dignity and autonomy.
 If you disagree with a decision or believe that the human rights of vulnerable
people are not being protected, ask the question ‘explicitly how have human
rights been respected in this process?’
 Network and share information and make representations to the EHRC and
SHRC to raise issues of concern.
Where to go for Help
EHRC www.equalityhumanrights.com/scotland/
SHRC www.scottishhumanrights.com
EHRC and the SHRC operate a joint HelpLine
• 0845 604 5510 – Scotland HelpLine
• 0845 604 5520 – Scotland Textphone
• 0845 604 5530 – Scotland Fax
SCCYP www.sccyp.org.uk
Equality and Human Rights Officers in Public Sector
Trades Unions and Advice Agencies - Local CAB, law centres and trades union
representatives should also be contacted for assistance.
This briefing is provides information and analysis and is not an authoritative
interpretation of the law.
This briefing has been commissioned by CRER with input from Carole Ewart, a
public policy and human rights consultant.
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