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.

 

Conclusion

 

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.