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

Emma Borland Orcid Logo

Seeking Asylum in the European Union, Pages: 21 - 57

Swansea University Author: Emma Borland Orcid Logo

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DOI (Published version): 10.1163/9789004290167_003

Abstract

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...

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Published in: Seeking Asylum in the European Union
ISBN: 9789004290167
Published: Brill | Nijhoff 2015
URI: https://cronfa.swan.ac.uk/Record/cronfa40706
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fullrecord <?xml version="1.0"?><rfc1807><datestamp>2021-01-12T15:46:42.0303494</datestamp><bib-version>v2</bib-version><id>40706</id><entry>2018-06-13</entry><title>Fair Enough? The uk&#x2019;s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law</title><swanseaauthors><author><sid>f941c8ad0e8272d39fb611a25eb557fb</sid><ORCID>0000-0003-4666-4665</ORCID><firstname>Emma</firstname><surname>Borland</surname><name>Emma Borland</name><active>true</active><ethesisStudent>false</ethesisStudent></author></swanseaauthors><date>2018-06-13</date><deptcode>LAWD</deptcode><abstract>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&#x2019;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 &#x2018;civil rights&#x2019; and public law but that the development of EU asylum law brings asylum proceedings within the autonomous meaning of &#x2018;civil rights&#x2019; 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 &#x2018;civil rights&#x2019; under Article 6(1) ECHR.</abstract><type>Book chapter</type><journal>Seeking Asylum in the European Union</journal><volume/><journalNumber/><paginationStart>21</paginationStart><paginationEnd>57</paginationEnd><publisher>Brill | Nijhoff</publisher><placeOfPublication/><isbnPrint>9789004290167</isbnPrint><isbnElectronic/><issnPrint/><issnElectronic/><keywords/><publishedDay>19</publishedDay><publishedMonth>5</publishedMonth><publishedYear>2015</publishedYear><publishedDate>2015-05-19</publishedDate><doi>10.1163/9789004290167_003</doi><url/><notes/><college>COLLEGE NANME</college><department>Law</department><CollegeCode>COLLEGE CODE</CollegeCode><DepartmentCode>LAWD</DepartmentCode><institution>Swansea University</institution><apcterm/><lastEdited>2021-01-12T15:46:42.0303494</lastEdited><Created>2018-06-13T15:04:42.7252010</Created><path><level id="1">Faculty of Humanities and Social Sciences</level><level id="2">Hilary Rodham Clinton School of Law</level></path><authors><author><firstname>Emma</firstname><surname>Borland</surname><orcid>0000-0003-4666-4665</orcid><order>1</order></author></authors><documents/><OutputDurs/></rfc1807>
spelling 2021-01-12T15:46:42.0303494 v2 40706 2018-06-13 Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law f941c8ad0e8272d39fb611a25eb557fb 0000-0003-4666-4665 Emma Borland Emma Borland true false 2018-06-13 LAWD 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. Book chapter Seeking Asylum in the European Union 21 57 Brill | Nijhoff 9789004290167 19 5 2015 2015-05-19 10.1163/9789004290167_003 COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2021-01-12T15:46:42.0303494 2018-06-13T15:04:42.7252010 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Emma Borland 0000-0003-4666-4665 1
title Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
spellingShingle Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
Emma Borland
title_short Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
title_full Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
title_fullStr Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
title_full_unstemmed Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
title_sort Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law
author_id_str_mv f941c8ad0e8272d39fb611a25eb557fb
author_id_fullname_str_mv f941c8ad0e8272d39fb611a25eb557fb_***_Emma Borland
author Emma Borland
author2 Emma Borland
format Book chapter
container_title Seeking Asylum in the European Union
container_start_page 21
publishDate 2015
institution Swansea University
isbn 9789004290167
doi_str_mv 10.1163/9789004290167_003
publisher Brill | Nijhoff
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
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description 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.
published_date 2015-05-19T03:51:48Z
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score 10.998116

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