Human Rights Act and Deportation

The World Health Organization (WHO) defined the scale of global migration, as ‘the movement of people from one area to another for varying periods of time, is vast and growing’. The estimation by the International Organization for Migration shows that 192 million people globally, which is a three percent of the whole world’s population, do not live within the country of birth. Their research also shows that Worldwide there are more people that immigrate within their country than out of it. [1]

Human Rights Act has been used as a “Rogues Charter” opening the floodgates to wave after wave of spurious challenges against criminal prosecutions. [2] Cases involving Human Rights arguments involve asylum, immigration and deportation cases. The increasing pressure by media and electioneering politicians, to reduce the numbers of those seeking asylum, to raise the bar for successful claims and return those whose claims have ‘failed’, has resulted in sustained abuse of human rights. The Europe’s deportation programme serves to undermine the international convention on human rights and children’s rights as well as the international convention. [3]

Deportation is often attached to a criminal sentence, but sometimes it can happen as a result of a failed asylum application. The courts have the power to deport a person aged over 17 if they have been involved in criminal activities and the maximum sentence is a prison term. The Home Office may also decide to deport on the grounds that the person in question is ‘not conductive to the public’ during the presence in the United Kingdom. An asylum seeker can become a recognised refugee if he proves to have a fear of prosecution for reasons such as, race, nationality, religion, membership of a political opinion or social group. Human Rights arguments are often found in the middle of deportation cases so the Government’s effort to meet its target to deport causes a large number of Human Rights appeals. Guy Njike, an asylum seeker and campaigner for human rights, faced deportation after living and working in the UK for nine years. He claimed that he was tortured by the police in his native Cameroon for being involved with the Social Democratic Front party. However, his claims were deemed to be ‘false’. He was told that his application, seeking asylum in the UK, has been rejected and he would be deported within a week of the notice. The Home Office rejected his claim and the appeal. Njike is awaiting the outcome of a judicial review of his case. [4]

UK Border Agency provides that, whilst each case will be considered on its merits, where a person is liable to deportation, the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. [5]

When a deportation order is made and served on the foreign national he may be held in detention without any further warning. At this time, when the foreign national has been given a notice of the deportation, he/she will be notified of his rights to appeal against the decision made. The UK Border Agency, in 2007, removed or deported 4,200 foreign national prisoners who met the criteria for deportation, in 2008, 5,395 were removed or deported, in the first six months of 2009, the agency removed 2,560 foreign criminals. Prior to 2007, the numbers remain unavailable. A small number of people have been deported on grounds of national security since 2005. Nine people were deported in 2005 three in 2006, six in 2007 and zero in 2008. [6]

On the 2nd October 2000, the government allowed rights under the European Convention of Human Rights to become incorporated into UK law by the Human Rights Act. This means that Human Rights arguments can be raised in Asylum appeals as well as all appeals before Immigration Judges. The most common arguments, on Human Rights appeals, are based upon family life that they may be split if one individual is removed from the UK. These rights are provided by Article 8, which states:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European deportation policies have changed since the 1970s – ‘80s. The European Court judges ruled that the deportation of ‘integrated aliens’ or ‘virtual nationals’ unlawful on the grounds inter alia that host states should take responsibility for the children of the migrant workers recruited to rebuild post-war Europe, and should seek to rehabilitate, not reject them’. The ‘improved’ law would set out the requirement to consider the rights of national security as well as the rights of the deportee to be free from the risk of torture, as enshrined in Article 3 of the European convention on Human Rights. Primary legislation setting out how the judges should interpret Article 3 “is the sensible way of staying inside the convention, but have a sensible policy on deportation”. [7]

Article 8 may be ‘relied’ on if a person has a personal and family life in the UK. However, the courts are reluctant to find that deportation is a violation Article 8. Thus, the court is unlikely to find violations within the Article 8 if there is an alternative country in which the husband and wife and/or family can move to and there are no ‘insurmountable obstacles’ to moving there. Also, the court will not consider to having violated the Article 8, ‘where a person could return to their country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay’. If Article 8 is relied upon it is still not an absolute right and in certain circumstances can be restricted so long as the interference is in accordance with the law in pursuit of a legitimate aim and necessary in a democratic society. The courts believe that enforcing immigration control is a legitimate objective and they may consider deportation as being in disproportionate interference with the persons right to family life, if the interference with the family life is particularly severe, and so be in breach of the person’s human rights.

For a long time the international human rights and refugee law have prohibited deportations to a state where the individual deported risks of being tortured, or punished or other cruel and inhuman degrading treatment. [8] The Strasbourg court, with a grand chamber of 17 judges, unanimously found that an attempt by Italy to deport a man back to Tunisia ‘violated the ban on torture or inhuman or degrading treatment in the European convention on human rights’.

The European Court of Human Rights, in the case of Chahal v UK 1997, ruled that it would be unlawful to deport an individual to a country where they would face a real risk of torture. The UK Government said that whilst they accepted this, they could also use it to justify detaining suspected terrorists in Belmarsh for more than 3 years. The House of Lords declared detention to be unlawful and in the same time the Government decided the control order regime that allows conditions as well as house arrest to be imposed on suspects. The Government, since then, has attempted to challenge the protection provided by the Chahal decision.

The courts have relied on diplomatic assurances [9] from states known to use torture. In 2009 three man face deportation, two of which will be deported to Algeria, the third man, Omar Othman, also known as Abu Qatada, faces being sent to Jordan. The Law Lords gave the go-ahead for the UK government to deport these men to their country. However, they will face a real risk of serious human rights violations, including torture and other ill-treatment and flagrantly unfair trials. The UK government is relying on diplomatic assurances given by Algeria and Jordan. The Government of both countries, Algeria and Jordan, has assured that the men will not be subject to serious human rights violations. However, Algeria and Jordan, have both been known in the past to have failed to prevent the torture and ill-treatment of persons involved or suspected of involvements in terrorism.

“It would be deeply worrying if the Law Lords’ decision were to be taken by the UK government as a green light to push ahead with deporting people to countries where they will be at risk of abuses such as torture and unfair trials,” said Nicola Duckworth, Europe and Central Asia Programme Director at Amnesty International. Diplomatic assurances are completely unenforceable, both by the individual subject to it and by the country which relies on them. ‘The UK government is undermining the system of international human rights treaties, including the global ban on torture and other ill-treatment, in favour of bilateral deals negotiated with countries that have already failed to live up to their existing international obligations to prevent and punish torture and other ill-treatment’ said the Amnesty International. No one should be deported to face a risk of torture, whatever they might be alleged or suspected to have done. States simply cannot pick and choose which individuals have human rights,” said Nicola Duckworth.

The Government intervened in the case of Saadi v Italy arguing that the rule prohibits deporting people to face torture and is ought to be revisited. However, the ECtHR rightly rejected this argument. The ban on torture is absolute and security concerns cannot be used to override it. Since the ECtHR said that an individual may be deported only when there is no risk of torture, the Government has effectively relied on diplomatic assurances. These assurances can be problematic if they are increasingly sought from countries with an appalling record on torture. There would be no need of assurance if the country in question was worldwide and independently accepted not to practice torture.

The British government ‘hoped’ that by intervening in the case of Nassim Saadi, the court would approve the return of suspects despite their home country’s human rights record. Ministers once again argued ‘the right of the public to be protected against terrorism should be balanced against a suspect’s rights not to be ill-treated’. The court ruled that the protection against torture is absolute and Saadi could not be sent back, despite the fact that he has been convicted of terror- related offences in both Tunisia and Italy. ”This decision will be welcomed by anti-torture and human rights campaigners everywhere,” said Sonya Sceats, an associate fellow at the international think tank Chatham House. “By affirming the absolute nature of the torture ban, the Strasbourg court has proved that basic rules of international human rights law cannot be sacrificed in the name of counter-terrorism”. She added that it would be ‘naïve’ to think the court’s decision would stop the UK trying to deport people to countries with dire human rights records. Instead we are likely to see increased reliance on diplomatic assurances as a way of diminishing the torture risk. These efforts by the UK to water down the torture ban have disappointed many”.

The UK is now seen by some as an innovator of bad practice, a country that once was considered a leader in the field of human rights. This throws into question Britain’s terror deportation programme, which relies on diplomatic assurances and memoranda of understanding with Tunisia and other countries. A Home Office spokeswoman said that in the last two years nine people had been deported this was based on assurances they would not be badly treated. “We intervened in the case of Saadi because terrorism undermines fundamental human rights including the right to life. We are disappointed at the ruling by the European court and we will consider the judgment,” the spokeswoman said. [10]

The new European Court of Human Rights has started the new decade with a refusal for the British deportation policy. On 12 January 2010, under the Human Rights Convention, the Court in Strasbourg ruled that the plan to deport 34-year-old Abdul Waheed Khan, who had lived in the UK since the age of three and breached his rights to private and family life under the Human Rights Convention. Mr. Khan was born in Pakistan and came to the UK in 1978. In 2003 he was sentenced to seven years on a drug related offence. In May 2006, the Home Office decided to deport him. Khan argued that he had no close relatives, any social, cultural or family ties in Pakistan. He claimed that, his mother and siblings who have various health problems, he was their main source of support. However, his appeals were dismissed. Mr. Khan has lived in the UK for over thirty years. The Home Office prior to 2006 would have not even ‘dreamt’ of deporting him mainly because of the time period he has lived in UK and he has been in the UK since he was a child. But deportation of those here since childhood, has become increasingly common. Immigration rules were changed in 2006 in order to create a presumption in favour of deportation and further legislation made deportation of foreign offenders mandatory only where human rights were not breached. The Council of Europe and the European Court itself supported the idea that an individual who has been here since infancy and who educated here with all their important ties here should not be deported. Only a few of those deported, or threatened with deportation, have taken the British government to the European Court of Human Rights. Mr Khan’s is the first recent case to succeed.

In June 2009 the Court upheld the 2007 deportation of a 31-year-old Turkish national, Umit Onur. Mr Onur had been in the UK from the age of 11 and was deported following a series of criminal offences including burglary and robbery. In the same month the case of Jamaican Joseph Grant was upheld by the court despite the fact Mr. Grant was a drug addict, a petty offender who had been living in the UK for over thirty years and had four generations of his family here.

For some years the UK has been seeking to deport a number of individuals whom it alleges pose a threat to national security. It has done so by seeking and relying on so-called “diplomatic assurances” from the countries to which these people are to be returned, countries where they may face a real risk of serious human rights violations including torture or some other ill-treatment and flagrantly unfair trials.

The UK authorities are open to charge and give a fair trail if an individual is reasonably suspected of having committed a criminal offence relating to terrorism. However, it is not acceptable to use suspicion of involvement in terrorism to justify deporting an individual who may face a real risk of torture or other serious violations to the individual’s rights. [11] The Human Rights campaigners are still to be convinced by the Government that sufficient guarantees of safety have been gained and the standard we need to maintain is that the government must not torture individuals or send them to be tortured.

The view is clear, terrorist suspects should be tried rather than be ‘dragged’ around the world. If deportation is necessary at least there must be some corroboration and robust involvement from international human rights monitors. The UK government, simply, cannot send individuals back to their country where torture, mistreatment or death penalty awaits for them. The Home Secretary has been granted a very broad discretion in relation to deporting these individuals. The discretion is that the government may deport individuals where he considers to be of ‘non-conductive to the public good’. The wide discretion is subject to normal public law principles such as rationality and the government’s obligations under domestic law and international human rights law. There are steps to be taken in order to protect the wide population from real threats. Whilst it is always better for world and national security that truly dangerous suspects are prosecuted, where persecution is not in issue, exclusion or deportation is a more proportionate response than the creation of over-broad criminal offences or, worse still, imprisonment