Anurag Deb, researcher, Queen’s University Belfast
Photo credit: Dom0803, via Wikipedia commons
Aman Angesom, an Eritrean national who does not speak English, arrived in Northern Ireland in June 2021 and applied for asylum. Initially accommodated in a house and then a hotel in Belfast, the Home Secretary made the decision to remove him to Scotland in October 2021. He was given less than 24 hours’ notice of his impending removal: he received a letter around 6 pm, for a removal time of 11.30 am the following day. The letter was in English with no translation provided to Mr Angesom. He was duly removed to Scotland and challenged this decision.
The challenge to the Home Secretary’s decision rested on five grounds, of which this post only explores the final ground: that the decision breached Article 2 of the Ireland/Northern Ireland Protocol (now sometimes known as the Windsor Framework). This was not the first such case invoking Article 2. Colin Murray has analysed the most important decision in this regard for this blog: here. This decision, SPUC’s application for judicial review, was affirmed on appeal in 2023. This post will explore how Angesom builds on the SPUC test with its detailed consideration of the EU Charter of Fundamental Rights (CFR), and why this matters both for human rights protection in Northern Ireland and for the reality of the post-Brexit legal landscape in the UK.
Article 2 and the CFR
Without delving into detail which Murray has already set out, the relevant aspect of Article 2 in Angesom is its non-diminution guarantee. What this means is that the UK is bound (internationally and domestically) to ensure that the rights, safeguards and equality of opportunity provisions mentioned in the Good Friday Agreement and underpinned by EU law on 31 December 2020 are not diminished in Northern Ireland following that date. ‘EU law’ in this context refers to all EU law which applied to and in the UK on 31 December 2020. This includes the CFR. But the applicability of the CFR does not stop at a certain date for Northern Ireland.
The Protocol continues to apply a list of EU law to Northern Ireland, and any such law brings with it the bells and whistles of EU law. These bells and whistles include, for example, the rule that such law must be interpreted consistently with the CFR. This is a rule confirmed by the Court of Justice of the EU and Court of Justice case law continues to bind domestic courts in the UK in relation to any EU law made applicable by the Protocol (but not the whole Withdrawal Agreement). Like the faces of the Roman god Janus, therefore, the CFR looks both to the past (applying to all of EU law on or before 31 December 2020) and the future (applying to only the listed EU laws after 31 December 2020). In Angesom, Mr Justice Colton confirms this at para 94, observing:
The combined effect of section 7A of the European Union (Withdrawal) Act 2018 (“EUWA 2018”) and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights […] may be relied on after the UK’s exit.
It is important to unpick this statement. Section 7A of the EUWA, like section 2(2) of the European Communities Act 1972 before it, gives effect to the evolving body of rights, obligations, powers, liabilities, and so on, which arise under the Withdrawal Agreement. Crucially, s 7A also subjects everything in the statute book (including the EUWA) to the former provision. Section 5(4) of the same Act declares “The Charter of Fundamental Rights is not part of domestic law” on or after 31 December 2020. This seems to contradict section 7A, except for the fact that section 5(4) is itself subject to section 7A, as Colton J observes. Moreover, section 5(7) makes this subjection explicit – subjecting 5(4) to “relevant separation agreement law” which is defined in section 7C(3) to include, among other things, section 7A of the EUWA. This kind of drafting may seem confusingly circular, but it reinforces the fact that no part of domestic law presently circumscribes or otherwise impacts the ability of the Protocol to have full effect in Northern Ireland.
The availability of the CFR means that Mr Angesom was entitled to rely directly on its rights in a way which is unavailable in Great Britain (as the Protocol does not extent beyond Northern Ireland). In this case, the right in question was Article 7 CFR – the right to private and family life, which Mr Angesom argued was breached through his removal to Scotland. Regrettably but with respect, the court’s reasoning starts to suffer from this point in the judgment.
One step forward and two steps back?
Although the court in Angesom definitively clarified that the CFR applies in Northern Ireland now as it did before Brexit (albeit in respect of a vastly reduced body of EU law), there are two problematic points in its reasoning.
The first point concerns how Article 2 protects against a diminution of rights enjoyed prior to Brexit. The relevant text of the Article states: “The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in [the Good Friday Agreement] results from its withdrawal from the [European] Union.” In Angesom, although the applicant did not provide much detail as to why his right to private and family life was disrupted as a result of being removed to Scotland, Colton J considered that this right was also protected under Article 8 of the European Convention on Human Rights (ECHR), via the Human Rights Act 1998 (HRA). Consequently, the applicant suffered no diminution (para 103). The judge framed the question this way:
The question as to whether there has been a breach of Article 2(1) therefore turns on whether a diminution of rights has occurred by reason of the fact that the applicant can no longer rely on Charter rights outside of Northern Ireland or whether it must be shown that in practice there is a substantive difference in the level of protection offered to the applicant in Scotland under the ECHR (para 100).
With respect, this is deeply problematic. If functionally similar (but legally non-EU) rights protections were sufficient to satisfy Article 2, one would expect that to be found within the text of the Article itself. This aside, however, the idea that the Protocol – part of a treaty between the EU and the UK – should be able to create legally enforceable obligations on the UK relating to a completely different treaty (in other words, the obligation under Article 2 can be satisfied via ECHR-compliant protections) is a surprise. The surprise is even greater when one considers that the EU has not acceded to the ECHR, raising the question why the ECHR should have occupied the minds of the framers of the Withdrawal Agreement at all.
Moreover, even if Colton J was correct to frame the question this way, there is an obvious answer: yes. Anyone taken out of the field of the CFR’s applicability loses its most powerful remedy: the automatic disapplication of any domestic legal provision which falls within the scope of EU law and which contravenes the CFR. The HRA, powerful as it is, does not allow courts to disapply Acts of the UK Parliament; by contrast, assuming the satisfaction of certain conditions, the CFR demands it.
The second problem in Angesom relates to which EU laws are said to be protected by the non-diminution guarantee Article 2. The applicant relied on the Reception Conditions Directive, which prescribes minimum standards for asylum seekers in every EU Member State. On the facts, Colton J found that the Home Secretary had complied with these standards (para 125). But this was preceded by the following question the court asked: “The next question is whether this Directive was binding on the UK on or before 31 December 2020. In other words, is the Directive capable of having direct effect? (para 116)”.
With respect, whether a directive was binding or not on 31 December 2020 is a relevant question, but direct effect is not a requirement for a directive to be binding. This is reflected in the Becker case, which Colton J cites (para 117). In Becker, only directives which have “unconditional and sufficiently precise” provisions in terms of their subject matter have direct effect (Becker, para 25). Equating the two concepts (a binding directive and direct effect) has the problematic consequence of potentially restricting the non-diminution guarantee under Article 2 only to those directives which are capable of direct effect.
On the whole, Angesom is a welcome and definitive clarification that places the status and application of the CFR in the Northern Ireland legal order beyond doubt. The fact that the challenge under Article 2 failed on the facts obviated any impact which could have arisen from its problematic legal reasoning.