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Vox pops on key human rights issues with human rights experts. (ohrh.law.ox.ac.uk/)

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Executive produced and hosted by Meghan Campbell.
Produced and edited by Sophie Smith.
Music for this series is by Rosemary Allmann.

Oxford Human Rights Hub · Cathryn Costello on the UK Immigration Bill

 

Daniil Ukhorskiy (0:00) You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. I’m Daniil Ukhorskiy, Blog Editor at the Hub. In today’s episode, we talk to Cathryn Costello, Professor of Law at the University of Oxford and the Hertie School, about the UK Illegal Migration Bill.1 

 

(0:16) Cathryn, thank you so much for joining me today. To start, for some of our listeners who may not be as familiar with the legal background, can you just tell us what the human rights implications are of the proposed Bill? 

 

Cathryn Costello (0:31) The Bill focuses on what is framed as “illegal immigration”, although principally it’s directed towards those who arrive on so called “small boats”. So, these are in the main refugees, although what the legislation seeks to do is to create a statutory obligation on the Home Secretary to ensure the removal of anyone, including refugees, who arrive by that mode of arrival. It also vastly increases the powers of detention— in fact, duties of detention of the State as regards those individuals. And thirdly, it greatly restricts judicial overview— judicial oversight of the exercise of these sorts of powers. Fourthly, there are a number of serious implications from a more British constitutional point of view, in particular in relation to the way that the rights that are enshrined in the European Convention on Human Rights are dealt with in British law and politics. 

 

Daniil Ukhorskiy (1:28) We’ll go back to some of the more significant implications on the British domestic level and implementation of the European Convention, but just generally, the Home Secretary, Suella Braverman, said that there’s more than a 50% chance that the Bill may breach the European Convention on Human Rights. Can you explain what aspects of it might breach the European Convention and how? 

 

Cathryn Costello (1:53) Well, I think there would be breaches of the European Convention and other international norms, but focusing on the European Convention, it’s quite clear that if somebody has a protection need — in other words, if they would be subject to a serious human rights violation if they will either return to their home country or return to a third country — that the State in which they find themselves has protection obligations to them, and that means they have to examine their claims, and that runs directly counter to the basic duty in the Bill, which is the Home Secretary’s duty to ensure the removal of these individuals without examining their claims.  

 

(2:30) So, some of the frameworks in the Bill are not new. So, Suella Braverman also claimed that this was a novel set of approaches — it’s not novel at all. It’s using presumptions of safe countries of origin and “Safe Third Country” to deem claims to be inadmissible. But what it is doing in a new way is removing all the judicial oversight on the use of those tools, and really trying to make people’s claims completely inadmissible to the asylum system. 

 

Daniil Ukhorskiy (2:58) So, if that domestic legal protection is removed, and there are breaches of the European Convention, what are the consequences for both the claimants and more broadly, Great Britain— United Kingdom in its relationship with the European Court? 

 

Cathryn Costello (3:15) Well, even on the face of the legislation, it doesn’t completely remove access to the British courts. I mean, to do that, with that sort of a total ouster clause, would be unconstitutional, according to long-established principles of British constitutionalism. So, there are some kind of caveats and limit— very limited access to the courts for certain types of claims. And these are framed in very strange kind of language. So, there is a way to get into the British courts. 

 

(3:44) So, for example, although there isn’t much judicial oversight of detention powers anymore, habeas corpus powers will remain — so, these sort of residual common law powers of the British courts. And similarly, although there isn’t access to an asylum system to have one’s refugee claim examined, there is a residual ability to be able to bring, but in very limited terms, a claim saying if removed, that that would lead to a serious human rights issue.  

 

(4:11) So, these issues will in— invariably end up before the British courts, and then the British courts have to decide how are they going to weigh up British common law constitutional principles, international law, which they have also a long and proud history of interpreting and applying and the wording of the statute. 

 

(4:28) And I suppose what’s missing in the statute also is what is generally part of all British statutes that have been passed since the Human Rights Act 1998, which is a statement requiring legislation to be interpreted in a human rights compatible manner, and that’s no longer in the legislation. And so that’s been seen as sort of a backdoor to side-lining the Human Rights Act.  

 

(4:52) So, undoubtedly there will be challenges before the British courts, but they’ll be exceedingly complex, and the powers of the British judges are constrained, and so there’s really, like, a lot of complex doctrinal questions, but also questions for how judges see their own constitutional role under the British Constitution that I think will be invariably tested over the next months and years. 

 

Daniil Ukhorskiy (5:18) So, more broadly speaking, it seems that the Bill is part of a broader policy of this government to come into an increasingly violent conflict with the European Convention and the European Court. This may be a little bit of a difficult or controversial question, but according to some of the recent polling, this could be a fight that is actually popular with the electorate. Are you concerned that this is one that this government could actually win, and that by using and weaponising the issue, and sort of the dehumanisation of refugees and migrants, this could be the first step to a broader erosion of human rights protections as enshrined in the European Convention? 

 

Cathryn Costello (6:08) I mean, there are two ways to think about that. I mean, there’s— there’s a trend in the UK, which is worrying from a rule of law and human rights point of view — an authoritarian trend. And the treatment of asylum seekers and migrants is part of that, but in a way, they’re scapegoats. I mean, in a way, that’s one of the more grotesque aspects of this policy — it’s not a serious policy that can be easily implemented. It’s framed as such, as if this is a serious way to deter irregular migration. Everybody knows that it isn’t. 

 

(6:39) And so in that way, that kind of grotesque political theatre, you know, it’s all the more worrying because, you know, this is part of an authoritarian playbook, to scapegoat very vulnerable people who were virtually voiceless in the political domain, you know, build-up a head of political steam about this issue, which of course is, you know, a highly politically salient issue for many people in the UK. There is a long game with electoral advantage in this. So, I think this is really a politicisation of the human rights of very vulnerable people. That itself is worrying from the point of view of an authoritarian slide. 

 

(7:17) And, you know, there’s a whole body of work on authoritarian legalism, and the way that safeguards for human rights and democracy, you know, can be dismantled piecemeal. And this Bill really belongs, I think, as part of a wider trend, which is unfortunately evident in the UK as well as elsewhere. 

 

Daniil Ukhorskiy (7:37) And you mentioned that this is not a serious policy, and one thing that I’ve read in connection to similar claims is one about the self-imposition of statutory duties, which you also mentioned at the start, that can’t really be fulfilled. Could you talk a little bit more about that? 

 

Cathryn Costello (7:57) Well, what the Bill invites us to imagine is that the Home Secretary can remove everyone who arrives. And what does “can move” mean in this context? You know, that it is, you know, realistically possible. And what that ignores is the fact that to deport somebody they have to be accepted by another State. And so very often the countries of origin of people who arrive in this manner are countries like Afghanistan, to which it is not possible to deport someone. So, countries of origin are often out because they’re dangerous, or they’re dysfunctional, or there’s no way of deporting somebody there. It’s both— these are both legal, ethical, and also, I should say, practical impairments.  

 

(8:43) So, then we’re talking about Safe Third Country arrangements, and similarly Safe Third Country arrangements depend on the cooperation of the Third States, whether that Third State is France, or Rwanda. So, to send somebody to France, the UK has obviously made the— its role in relation to Safe Third Country returns across Europe, which used to be part of this— sort of, the Dublin system, which it was part of, when it was a member state of the European Union, then at least what was there was a bureaucratic system for returns. Even in that highly developed system it doesn’t work most of the time, because there will be, again, legal and practical impediments to sending people. But without the arrangements of the Dublin system, it’s even less likely you’ll have Safe Third— Safe Third Country returns. And as we know, you know, there hasn’t been any returns to Rwanda, for example. And again, for very good legal and practical reasons.  

 

(9:40) And no matter how the Bill tries to get us to imagine the exercise of migration control powers, that doesn’t make it so — simply writing down that the Home Secretary has a duty to ensure removal doesn’t make it any more likely that removal will take place. And so I think that’s the sort of foundational lie in this— in this policy. 

 

Cathryn Costello (10:03) And then there’s a second layer, because we’re also invited to imagine that if everybody was removed or removable, that nobody would come, so that it would deter future arrivals. And so that’s a second set of empirical suppositions that are based on very scant evidence, to put it mildly. 

 

Daniil Ukhorskiy (10:21) Thank you. And just one last question. We’ve discussed the various legal, practical, moral flaws with this proposed Bill. But there are also very significant risks to human life that are incurred on the asylum seekers who crossed the channel. It’s an incredibly dangerous journey, and one that extracts a terrible toll on them. So, can you imagine or even suggest a human rights compliant way of limiting these crossings, and I would even go one step further, not one that is just human rights compliant, but one that you think is ethically and morally good. 

 

Cathryn Costello (11:04) I think we have to widen the lens a little bit from boat crossings and think more generally about why it is that the journeys of refugees have become so dangerous. So, that story isn’t just of boat crossings, which of course are spectacular and mediatised, and also, as you said, extremely dangerous. But you know, there’s a long history of decades of asylum seekers mainly making it to the UK in the backs of lorries, where they were at risk of suffocation. So, you know, there are very visible dangerous routes and there are less visible dangerous routes. 

 

(11:44) But the background to that is two things— is that there is a system of migration control in the world, which deprives would be refugees from refugee-producing countries, countries of conflict and persecution of, you know, virtually all ability to travel legally. And that’s because if you have the wrong passport, you can’t get visas to enter countries like the UK or to enter the EU, generally speaking. So that explains the predicament of Afghans today, even post-Taliban. It explains the predicament of Syrians in 2015, who had to make mass irregular arrivals into Europe. And so there are really two elements to this— these set of practices that I tend to call “refugee containment practices”. One is visas — so, passports plus visas — and the second element is carrier sanctions. 

 

(12:36) Carrier sanctions are a policy of relatively recent origin. And so, the EU introduced them in the 2000s, and before then, one could travel without your documents in order— at least, you know, you could get on a ferry — the ferry owner wasn’t going to check your papers, that wasn’t their business. Neither did airlines — they didn’t routinely check that everybody’s paperwork was in order. And so that meant that actually, it’s not that long ago that there was a world in which protection seekers had a lot more mobility. So we can cite, you know, the practice of even— you know, three decades ago in Europe, things were quite different about refugee mobility. 

 

(13:14) The contemporary example then that shows that you can do protection en masse completely differently is the treatment of Ukrainians, because since 2017 Ukrainians haven’t needed a visa to enter the EU. So, especially looking at the EU context, that has meant that, in addition to offering them temporary protection en masse — which is temporary, it’s not the same as refugee protection, but it’s nonetheless significant — Ukrainians can, in effect, choose their country of asylum, and they’re not contained in their home countries, in the same way as other displaced persons often are. 

 

(13:49) So, I think we have at least those two examples of how protection could be done differently. If States then objected, saying, “Well, we’ll end up overburdened”, I think you’d have to look at the possibilities of responsibility-sharing. And again, there’s lots of very interesting policy and practice one can look into there, both historical and also very interesting new work about preference-matching, which would enable refugees to, you know, offer their skills to places where they were needed, and that might also encourage States to accept more refugees. 

 

(14:20) But what you get at present is really— a really toxic situation where States overstate their responsibility. So, the UK Government and the UK media have, you know, created a situation where most of the British public vastly overestimate the number of asylum seekers, both coming to and in the UK, and has done for decades. That’s something that the Migration Observatory in Oxford has done some excellent work on. And then you don’t even begin a serious conversation about global responsibility-sharing for refugees. But of course, States could create all sorts of different mechanisms where nobody had to turn to smugglers in order to travel. And I think that understanding that it’s visas plus carriers sanctions, and that those are our policies, British policies, or EU policies, or policies of the US and other States in the Global North— understanding that that distribution of mobility is the sort of basic driver of irregular migration I think is really crucial. 

 

Daniil Ukhorskiy (15:21) RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Meghan Campbell. This episode was produced and edited by Sophie Smith and hosted by Daniil Ukhorskiy. Music for this series is by Rosemary Allmann. Show Notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you listen to your favourite podcasts. 

 

Oxford Human Rights Hub · Gauri Pillai on the Indian Abortion Decision

Mónica Arango Olaya (0:02) You’re listening to RightsUp Pops, a podcast from the Oxford Human Rights Hub. I am Mónica Arango Olaya and in today’s episode we are delighted to have Gauri Pillai, our previous Managing Editor and now Assistant Professor of Law at the National Law School of India University, with us. We will be talking to her about the latest Indian Supreme Court decision on abortion rights. Welcome back Gauri.

Gauri Pillai (0:29) Thank you for having me Mónica. It’s such a pleasure to be here.

Mónica Arango Olaya (0:33) Well, so— let’s get right into it. Very recently, the Supreme Court of India, in the X v NCT case,[1] recognised an entitlement to abortion as a constitutionally protected reproductive right. Can you tell us briefly what the case is about?

Gauri Pillai (0:51) So before we get into the facts and the holding of the case, it would be helpful for us to understand what the legislative framework is on abortion in India.

(1:01) So, there are two main legislations governing abortion. The first is the Indian Penal Code, which criminalises abortion, except in cases where it is necessary to save the life of the pregnant woman. And the second is the Medical Termination of Pregnancy Act,[2] which exists as an exception to the criminal law.

(1:21) And under the MTPA, which was recently amended in 2021, there are a series of conditions under which women can access abortions. These conditions have to be sanctified by doctors. So, women can access abortion under these conditions up to 20 weeks. And what the amendment does is that, for certain, what it calls “vulnerable categories” of women, they’re allowed to access abortions between 20 and 24 weeks. And this case is about one of those vulnerable categories.

(1:55) So, Rule 3B of the MTP Rules[3] says that if you are— if you experience “a change in marital status”, and then in brackets, it says, either “(widowhood or divorce)”, then you fall within this vulnerable category of women, and you can access abortions between 20 and 24 weeks if you meet certain conditions.

(2:16) Now, last week, the Supreme Court considered the interpretation of Rule 3B once again, because it raised a substantial question of law. And the Court held, in line with its [inaudible] model, that Rule 3B extends to unmarried pregnant women as well.

(2:34) And, very quickly, the Court based this on three prongs.

(2:38) The first is that the MTPA, the Court argued, should be interpreted purposively, and the purpose of the legislation is to prevent threat[s] to women’s life and health from an unwanted pregnancy. And the Court held it does not matter if this threat comes— happens to whether married or unmarried women, as long as there is a change in relationship circumstance, which then threatens their health to carry the pregnancy to term, the abortion will be allowed, or ought to be allowed, rather.

(3:08) The second, the Court held that social circumstances in India have changed. Atypical forms of familial relationships, which are outside marriage, for example, “live-in” relationships, are much more common, and this sort of changing social environment ought to interpret how the Court— ought to influence, sorry, how the Court interprets the legislation.

(3:29) And finally, the Court held that the MTPA is a beneficial legislation, and it is created for the benefit of pregnant women, and therefore it should be interpreted broadly in line with their interests.

Mónica Arango Olaya (3:39) So, it seems to me that what you’re saying is that the Court anchored is ruling on the prohibition of gender-based stereotypes, and stereotypes about women and married life. Can you explain a bit more the Court’s reasoning?

Gauri Pillai (3:55) So, one of the most important parts of the Court’s reasoning, along with the others that I mentioned earlier, is that it hits back against the artificial distinction within the law between married and unmarried women. And the Court says, and as you rightly point out, that restricting abortions beyond 20 weeks to married women alone is based on the unconstitutional stereotype that sexuality is confined to the institution of marriage, which the Court sees as both factually incorrect and constitutionally unsustainable.

(4:29) And therefore, the Court holds that the law ought not make that distinction between married and unmarried women. And if Rule 3B  were to make that distinction, or were to be read in a way, like the Delhi High Court did— read literally to make that distinction, then Rule 3B would be unconstitutional. So, the Court says, another option would be to read Rule 3B expansively, to allow unmarried women to claim the benefit of Rule 3B, in which case you can preserve the constitutionality of Rule 3B.

(5:01) So, taking into account concerns of separation of powers and the presumption of constitutionality of legislation, the Court held— the Court opted, rather, to go with an interpretation of Rule 3B that aligns with a constitutional right to equality.

Mónica Arango Olaya (5:16) In which legal entitlements did the Court base this decision and the reasoning that you’re explaining?

Gauri Pillai (5:23) So, the very obvious one to hit back against the distinction between married and unmarried women is the right to equality under Article 14 of our Constitution— of the Indian Constitution.

Gauri Pillai (5:37) The other right that the Court develops in a fair amount of detail is the right to decisional autonomy, which comes from Article 21 of our Constitution, which guarantees to women the right to life and personal liberty. So, decision autonomy, the Court argues, would allow women to make intimate decisions about matters including reproduction, and this would extend to a decision not just to have an abortion, but also to not have an abortion. So, it covers both sides of the decision.

(6:07) The Court also, very importantly, talked about the right to bodily integrity. The Courts recognise the burdens, or the heavy physical responsibility placed by an unwanted pregnancy on pregnant women. And the Court held that requiring a woman to carry an unwanted pregnancy to term would infringe their bodily integrity.

(6:31) And finally, the Court used the idea— or the constitutional value of dignity to say that dignity requires that women should— ought not be treated as means to an end, and they should be respected as self-governing individuals, and therefore, a corollary of protecting the constitutional value of dignity is allowing women abortions.

Mónica Arango Olaya (6:54) You say that it is quite evident that the right to equality was used for this reasoning, however, is this something novel that the Court is doing? Has a court before based the rights to abortion on— under the right to equality?

Gauri Pillai (7:12) The answer to that question, Mónica — it is quite novel because typically, within India’s reproductive rights jurisprudence, we see a— quite a consistent absence of the right to equality or the right to non-discrimination. So, the fact that the Court used— explicitly used the right to equality here to protest against the distinction between married and unmarried woman within the MPT Rule is definitely a significant jurisprudential step forward.

(7:43) I would say that the right to equality, beyond the sort of immediate question of married and unmarried women and that distinction— the right to equality doesn’t come within the Court’s—  broader constitutional values that the Court lists as underlying the right to abortion. So, maybe that is another place for the Court to go, to consider what the rights to equality and non-discrimination mean more generally for women’s right to an abortion, beyond the specific question of whether unmarried women can access an abortion or not.

Mónica Arango Olaya (8:17) The other important part of this decision that you’re pointing out is about how the Court anchored its decision on the right of women to make decisions about their bodies. And I think that that is quite interesting. As you stated before, the regime places a lot of emphasis on the doctor’s decision or assessment. So, what did the Court say about this? Does the Court touch on this tension between the right of women to make the decision and how the doctor can (or not) make it for the women?

Gauri Pillai (8:53) No, the Court actually did not, and this is, sort of, one of the contradictions that comes out from the decision. So, the Court uses very strong rights language to ground the woman’s right to an abortion, and in certain places, it goes so far to say that the woman ought to be the sole decision-maker, or the ultimate decision-maker of the abortion decision. If we were to take that to its logical conclusion, then that could mean that the MTPA (which vests the decision, ultimately, in doctors) would be bad law, would be unconstitutional. So, the Court did not really tease out the implications of, you know, seeing women as ultimate decision-maker[s], but simply stopped at recognising that they ought to be ultimate decision-makers.

(9:39) It is important to just say that the constitutionality of the role of medical professionals was not in issue before the Court. What was in issue was simply the interpretation of Rule 3B, so it may not be reasonable to expect the Court to go so far to strike down the medical professional requirement. But an implication of the Court’s holding is certainly that we need to rethink who the MTPA sees as the decision-maker.

Mónica Arango Olaya (10:08) The decision sounds quite ground-breaking and expansive. How do you assess it? Is this a good decision for women’s reproductive rights, or does it have challenges?

Gauri Pillai (10:23) I would say that I’m very optimistic, but I’m cautiously optimistic because I think that, again, going beyond that question about married and unmarried women, the Court’s decision— it lays the ground, rather, for challenges to several issues that have been plaguing India’s abortion law for a really long time. But the criminal prohibition on abortion continues to remain in place. So, even if the language used by the Court to expansively interpret the MTPA, to see the woman as the ultimate decision-maker— even though the language is really progressive, I wonder how far the language can take a woman actually claiming an abortion on the ground, because the criminal law exists and continues to remain in place, which will continue to affect how the MPTA is interpreted.

Mónica Arango Olaya (11:13) Thank you so much, Gauri, for talking to us today.

Gauri Pillai (11:17) Thank you, Mónica. This was a great conversation.

Mónica Arango Olaya (11:23) RightsUp Pop is brought to you by the Oxford Human Rights Hub. The Executive Producer is Meghan Campbell. This episode was co-produced by Mónica Arango Olaya, edited by Sophie Smith, and hosted by Mónica Arango Olaya. Music for this series is by Rosemary Allmann. Show notes for this episode have been written by Sarah Dobbie. Thanks to our production team members — Sandra Fredman, Meghan Campbell, Natasha Holcroft-Emmess, and Sophie Smith — for their valuable feedback in putting together this episode. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

October 2022

[1] Available at: https://main.sci.gov.in/supremecourt/2022/21815/21815_2022_2_1501_38628_Judgement_29-Sep-2022.pdf.

[2] Available at: https://www.indiacode.nic.in/bitstream/123456789/1593/1/A1971-34.pdf.

[3] As the Supreme Court explained in X v NCT, “[t]he MTP Act vests the Central Government with the power to enact rules to carry out its provisions” (§16), “[i]n exercise of this power, the Central Government notified the MTP Rules” (§17), and “Rule 3B, recently amended by the Medical Termination of Pregnancy (Amendment) Rules 2021, … governs the categories of women under clause (b) of sub-section 2 of Section 3 who may have their pregnancy terminated if the length of their pregnancy exceeds twenty weeks but does not exceed twenty-four weeks” (§17).