Immigration Act of 1971 and Its Enforcement with Respect to Administrative Removal/Deportation when Articles 3 and 8 of European Convention of Human Rights are Engaged
Following the terrorist attacks of September 11, 2001, many observers stated that “nothing would ever be the same again” and in some ways they have been absolutely correct. While the United Kingdom continues its inexorable march to become fully integrated into the burgeoning European Union, a number of obstacles remain firmly in place that relate to the perceived need by the UK government to better control movement of foreigners within its borders. The purpose of this study was to provide an examination of the UK Immigration Act of 1971 and its enforcement with respect to administrative removal or deportation when Articles 3 and 8 of European Convention of Human Rights are engaged. This study used a three-chapter format to achieve this research purpose. Chapter one introduces the topic under consideration, provides a statement of the problem, as well as the purpose and methodology of the study. Chapter two presents a review of the relevant and peer-reviewed and scholarly literature, and chapter three presents the study’s conclusions and recommendations.
Chapter 1: Introduction
Statement of the Problem
Purpose of Study
Methodology
Overview of Study
Chapter 2: Review of Related Literature
Chapter 3: Conclusions and Recommendations
An Examination of UK Immigration Act of 1971 and Its Enforcement with Respect to Administrative Removal/Deportation when Articles 3 and 8 of European Convention of Human Rights are Engaged
Chapter 1:
Introduction
So many changes have taken place in the United Kingdom and its relationship with its European neighbors since the end of World War II that it is difficult to accurately fathom the impact on its citizens today. Beyond the reshaping of its former empire during the 20th century, the United Kingdom has also experienced some fundamental shifts in its demographic composition. For example, according to Spencer (1997), “In the space of less than half a century, Britain has shifted from being a virtually all-white society to one in which ethnicity and race are significant social and political factors.” While the UK has embraced many of the harmonisation initiatives designed to bring the country into better alignment with its European counterparts, many obstacles remain firmly in place that adversely affect the ability of some immigrants to gain access to permanent residency status or to join other members of their family who may already have emigrated.
Statement of the Problem
Today, movement into and exclusion from the United Kingdom is regulated by the Immigration Acts 1971 and 1988, the Immigration and Asylum Appeals Act 1993, and the Immigration Rules 1994 and rules of procedure made under those Acts. The Immigration Act of 1971 established the UK government’s complete control over the immigration of people, without a close connection to the United Kingdom by either birth or descent, who were referred to as “non-patrials” in the 1971 Act. According to Houston (2000), “Under the 1971 Act, patrials had the right to abode in the United Kingdom, whereas non-patrials did not. Additionally, the 1971 Act replaced the voucher with a temporary work permit, which, unlike the voucher, did not carry the right of permanent residence.”
Today, this patchwork system of immigration control is further reinforced by the Immigration (Carriers’ Liability) Act which became effective in 1987. The result of this mish-mash of legislative initiatives attempting to control movement within the UK has been less than desirable. For instance, a recent report by Sanderson cites one UK immigration judge, “Judge J,” who, “After 20 years in immigration, has discovered nothing but chaos, confusion and a shambolic structure that does not work. She has stood helplessly by as thousands of illegal immigrants have arrived in the UK and watched the authorities routinely fail to deport them after their appeals were dismissed.”
Compounding the problem for both the UK government and those it seeks to deport is the convoluted nature of the controlling legislation and the dynamic nature of the legislative environment in which it is being prosecuted. In this regard, Sanderson points out that “Judge J.” “.. has been appalled by the arrogance and incompetence of many of the judges who hear the appeals and the inexperience of the Home Office officials who present them. Prior to 1990 there were very few applications for asylum. And until1992 there were only about six people in the country who could judge asylum appeals, and they had to have seven years’ experience as a barrister or a solicitor. Now, there are thousands, increasing at about a rate of 100 a year.”
According to Harris and Joseph, the movement of European Economic Area (EEA) nationals and their non-EEA-national family members is controlled by the European Economic Area Order 1994. Further, movement within the United Kingdom is also controlled by a vast array of various legal provisions, including the Prevention of Terrorism Act 1989, which provides for the exclusion from mainland Britain of persons suspected of terrorism, and the new provisions contained in the Criminal Justice and Public Order Act 1994 regulating the movement of travellers. These authors argue that, “The United Kingdom asserts that its immigration controls are applied in a non-discriminatory way, and indeed a prohibition on direct discrimination is contained in the Rules. However they indisputably operate in a manner which disproportionately affects the rights of members of the United Kingdom’s ethnic minorities as well as of aliens who are nonwhites.”
This is not to say that the UK government has been without any justification or rationale in support of its approach to immigration control; however, it is to say that that UK government has found itself in an increasingly unviable position as it seeks to continue its existing approach in view of the provisions of the European Convention of Human Rights and other agreements to which it is a signatory. For instance, according to Guild (2003), “The right of the United Kingdom to breach international human rights norms in the exercise of a sovereign right to declare an exception depends on the rules that surround the use of the exception. The European Convention of Human Rights [ECHR] permits only the exercise of the article 15 right where there is a public emergency threatening the life of the nation.” To date, the UK remains the only signatory to the ECHR that has taken steps to derogate any provision of the ECHR followed the terrorist attacks of September 11, 2001. As Guild points out, “The Parliamentary Assembly of the Council of Europe in Resolution 1271 (2002) urged member states not to provide for any derogations to the ECHR. In particular it called on member states to refrain from using Article 15 to limit the rights and liberties guaranteed under Article 5.”
Purpose of Study
The purpose of this study was to provide an examination of the UK Immigration Act of 1971 and its enforcement with respect to administrative removal or deportation when Articles 3 and 8 of European Convention of Human Rights are engaged. To this end, a critical review of the relevant literature was conducted as described more fully below.
Methodology
The research methodology used to accomplish the above-stated purpose was a critical review of the relevant peer-reviewed, scholarly and governmental literature which is highly congruent with a number of social researchers. For example, Fraenkel and Wallen (2001) note that, “Researchers usually dig into the literature to find out what has already been written about the topic they are interested in investigating. Both the opinions of experts in the field and other research studies are of interest. Such reading is referred to as a review of the literature.” Other social researchers suggest that a review of the literature is an essential element in virtually any research project today. According to Linn and Miller (2004), “There are three reasons to do a literature review before proceeding with a study: The literature indicates what research has been done in an area of interest; it also provides information on where gaps exist in current knowledge; and it provides a framework for, and establishes the importance of, a study.”
Overview of Study
This study used a three-chapter format to achieve the above-stated research purpose. To this end, chapter one introduced the topic under consideration, provided a statement of the problem, as well as the purpose and methodology of the study. Chapter two presents a review of the relevant and peer-reviewed and scholarly literature, and chapter three presents the study’s conclusions and recommendations.
Chapter 2:
Review of Related Literature
UK Immigration Act of 1971.
The UK Immigration Act of 1971 (hereinafter alternatively the “Act”) eliminated the categories of “alien” and “British subject” that had historically been used to divide the world into those from the Empire and Commonwealth who had rights and privileges in the United Kingdom and those foreigners who did not. Upon the passage of the Act, these categories were replaced by the essentially racially-defined categories of ‘patrial’ and ‘non-patrial’: “Patrials were free from restrictions; non-patrials were all liable to controls.”
For the purposes of the Act, patrials were defined as British or Commonwealth citizens who were born or naturalised in the United Kingdom or who had a parent (or grandparent in the case of British citizens) who had been born or naturalised in the United Kingdom.” The patrial category included British and Commonwealth citizens as well provided they had been settled in the United Kingdom for a period of 5 years and had registered or had applied to register as a British citizen; as a result, British citizens who were non-patrial were subject to controls while non-citizens who were patrials were not subject to controls.
According to Spencer, non-patrials were allowed to seek residence and could apply for a work permit; however, these steps did not provide them with the right of permanent residence or the right of entry for their dependants from 1973 onward. In other words, the net effect of the Act was to.”.. abolish the last vestiges of the old Empire embracing concept of British subject or citizen…. The rights of non-white Commonwealth citizens to migrate to and settle in United Kingdom were finally ended, whereas the rights of white settlers in the Empire/Commonwealth, so long as their settlement overseas had occurred in the last two generations, were strengthened.”
The bottom line impact of the Act was to expand the entitlement to movement within the UK but only for those who were deemed most likely to successfully assimilate into the larger English society. In this regard, Spencer points out that, “Overall, the Act increased the number of people entitled to enter Britain without restriction, but as these comprised almost entirely people of ‘European extraction’ who had ‘special ties of blood and kinship’ this caused no political difficulty.” Likewise, Brown and Louis (1998) advise, “Following Britain’s entry into the European Economic Community in 1973, people of ‘British stock’ from such places as Australia found themselves waiting along with U.S. And other aliens to pass through UK immigration while Europeans swept past.”
The years following the end of World War II have been characterized on the one hand by UK initiatives intended to bring the country into a more seamless economic and political relationship with its European counterparts and on the other hand to more carefully regulate movement within its borders in ways that have caused some concern on the part of many international observers who suggest that it is not possible to have it both ways. In this regard, Spencer advises:
The Immigration Act of 1971 was closely associated, in its content and its timing, with Britain’s moves towards Europe. Not only did the Act terminate the last rights to settle of those who belonged to the old all-embracing ‘British subject’ category, it also introduced for those non-patrial Commonwealth citizens who came to Britain to work a status which was closely akin to that enjoyed by guest workers in the Federal Republic of Germany and other European states. From 1971 non-patrial Commonwealth citizens and aliens came to Britain on the same terms. Neither had the right to settle or to bring their family.
The implications of the Immigration Act of 1971 have been heightened by the UK’s efforts in recent years to become a full economic and political partner in the burgeoning European Union as it forges an all-but-in-name universal constitution. The Act, though, assumed new relevance and importance when the UK became a member of the European Economic Community, a membership that carries with it certain fundamental responsibilities to other member states and their citizens. In this regard, Spencer reports that, “By a highly symbolic coincidence, on the same day that the Immigration Act of 1971 became law, 1 January 1973, Britain entered the European Economic Community. In doing so Britain pledged itself to the principle of the free movement of labour within the community.”
Notwithstanding these formal commitments to the larger European Union, there has been some fallout involved that may have been carefully intended, at least according to some observers. For example, in their text, The Oxford History of the British Empire, Brown and Louis (1998) emphasize that, “Changes in demography and in the political economy marched hand in hand…. The Immigration Act of 1971 removed with finality the distinction between Commonwealth and foreign immigrants, thus repudiating the Imperial mobility and the integrity of the Empire upheld since the beginning of the century.”
Likewise, Cornelius, Martin and Hollifield (1994) note that, “Britain’s entry into the European Community on January 1, 1973, was viewed by many Commonwealth countries as the final act undermining the unity of the Commonwealth and ending the myth of common interest and allegiances between Britain and her former colonies.” Although it is reasonable to posit that there were other compelling reasons involved in the formulation of the Act, its impact was nevertheless deemed as being targeted at those considered less desirable. As Cornelius and his colleagues emphasize, “New citizenship legislation defining British nationality more narrowly to those with close links to the United Kingdom by birth, settlement, or descent from a citizen would provide a more rational and less overtly racist basis for defining who had the right of access to and abode in the territory of the United Kingdom.”
The overall impact of this legislation on UK immigration control is shown in Table 1 below.
Table 1.
British Immigration Control, 1973.
Not Subject to Control
Subject to Limited Control
Subject to Full Control
British citizens patrials)
British Asians (from
East Africa)
Aliens
Irish citizens
Other EC nationals
Commonwealth citizens
Commonwealth citizens (patrials)
EC nationals seeking work, and their dependants
Source: Cornelius et al. At p. 286.
As the restrictions on immigration were removed during the 1970s and 1980s, the citizens of the European Community gained the basic right to freely enter the UK for the purposes of settlement; this relaxation of immigration restrictions therefore potentially extended to more than 200 million people, including the citizens of some countries that the UK had found itself at war with just a few years previously. According to Spencer, “The change was symbolised by the new signs which appeared at the principal points of entry, such as Heathrow Airport: ‘United Kingdom citizens and EEC nationals’ now marked the channel for those entering free of restrictions.” In this environment, any efforts to thwart or otherwise diminish the free movement of citizens from member states appears to represent an abrogation of certain of the UK’s responsibilities under the European Convention of Human Rights, and these issues are discussed further below.
Articles 3 and 8 of European Convention of Human Rights.
The European Convention of Human Rights (ECHR) is the only Council of Europe instrument that applies to all persons residing within the territories of its member states. According to Jayawickrama (2002), “Twelve states signed the ECHR in Rome on 4 November 1950. It entered into force in September 1953, and has now been ratified by the following states members of the Council of Europe: Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, TFYR Macedonia, Turkey, Ukraine and the United Kingdom. The following fundamental rights are contained in the ECHR:
Article 2: The right to life.
Article 3: The right not to be subjected to torture or inhuman or degrading treatment or punishment.
Article 4: The right to freedom from slavery, servitude, and forced or compulsory labour.
Article 5: The right to liberty and security of person.
Article 6: The right to a fair trial.
Article 7: The right to protection against retroactive criminal legislation.
Article 8: The right to privacy.
Article 9: The right to freedom of thought, conscience and religion.
Article 10: The right to freedom of expression.
Article 11: The right to freedom of assembly and association.
While all of the foregoing rights are applicable to all member states, Articles 3 and 8 of the ECHR hold some important implications for movement of individuals within the UK that have been decided by courts of competent jurisdiction in recent years. For example, Cholewinski reports that, “Many of the rights in the ECHR are subject to limitations, such as the right to respect for family and private life (Article 8), the right to freedom of expression (Article 10) and the right to freedom of assembly and association (Article 11). These limitations are separately written into each provision.” According to Morris (2002), “Until the entry into operation of the Human Rights Act in October 2000, there was no human rights guarantee in domestic law, except in the form of the 1993 Asylum Law. Britain had, of course, assumed other obligations as a signatory of the ECHR.”
Despite its commitments under the ECHR, the UK continues to harbor some unique provisions for applicants for asylum pursuant to the Immigration Act of 1971 and subsequent legislation. In this regard, Morris advises, “In the past, issues such as requests to stay on the grounds of family ties and for other compassionate reasons have been dealt with through concessions granted outside the law, a key and continuing feature of the British system. We have, for example, noted the recent concession which protects parents from deportation where a child present for seven years or more is involved.”
The Court’s decision in this regard bears closer scrutiny. As Nicholson and Twomey emphasize, unlike the 1951 Convention, article 3 of the European Convention does not provide for and does not countenance any restriction as to who is protected and is likewise non-derogable; as a result, article 3 of the European Convention is not limited to those persecuted on grounds of “race, religion, nationality, membership of a particular social group or political opinion.” Moreover, Forman (2002) reports that, “The problems caused for successive British Governments by the fact that the United Kingdom has been a party to the ECHR have been mitigated by the fact that almost every Article is qualified to a greater or lesser extent by the case law which has developed over the years and by the specific derogations which are allowed under the Convention itself.”
Furthermore, there is no provision in the Geneva Convention that provides for the exclusion of those who have committed a “serious non-political crime outside the country of their refuge.” Precedentially, the European Court of Human Rights established in the Soering case that fact that the protection of article 3 is applicable to everyone no matter how.”..heinous the crime allegedly committed” may have been. According to Wyatt and Wyatt (1998):
Since the landmark case of Soering v UK it has been well established in the case-law of the Convention that the expulsion, deportation, or extradition of an individual will be in breach of Article 3 if there is a real risk that the individual will be subjected to torture or inhuman or degrading treatment or punishment in the receiving State, whether at the hands of the public authorities in that State, or by non-State bodies or individuals against whom the State cannot provide protection.
Furthermore, there is no provision that allows the exclusion of any person for “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” By contrast, the European Convention courts have consistently held in a series of cases that this is not a material consideration. As Clapham points out, “There may still be scope left for the argument that, where the decision is made due to authority given by statute or in consequence of an interpretation of a statute, then the Convention is a relevant factor to be taken into account by the body taking the decision. This would be so due to the principle that, wherever possible, statutes have to be interpreted in accordance with the Convention.”
According to Forman, domestic legislation in the UK has increasingly been influenced by the European Court of Human Rights when the two come into conflict. As this author emphasizes:
Whenever this has happened and the United Kingdom authorities have been found to be in breach of the European Convention, they have had to give effect to such opinions and rulings, often by changing the law in this country. Indeed, there has been to date a total of at least 50 occasions on which areas of British law have had to be changed for such reasons, including the closed shop in 1981, corporal punishment in 1982, telephone tapping in 1984, immigration rules in 1985 and discretionary life sentences in 1990. In other cases the British courts have chosen to take the ECHR into account in order to clarify ambiguities or fill in gaps in our common law – e.g. with reference to Article 7 of the Convention in Waddington v. Miah of 1974 which involved following those principles of the Convention which prohibit retroactive criminal law (in this case in relation to an aspect of UK immigration policy), or with reference to Article 10 in the notorious Spycatcher case of 1987 which raised issues on the extent to which it was proper for the British Government to limit freedom of expression.
This point is also made by Gordon and Wilmoth-Smith (1996), who note that the UK Government reports that they “take full account of their obligations under those instruments, and that where the United Kingdom has been found by the European Court of Human Rights to be in violation of the Convention, it gives effect to those judgments, by amendment to the law or changes in administrative practice, as necessary.”
The European Court of Human Rights established a gold standard by which a test to determine what comprises “a real risk of treatment contrary to Article 3” in the above-mentioned Cruz Varas v. Sweden; in this case, which involved potential deportation after refusal of asylum back to Chile, but it was not shown that there were substantial grounds for believing there was a real risk of ill-treatment, the Court held: “The ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative. It depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.” Taken together, the foregoing considerations suggest that there is some latitude available in the interpretation of this article.
According to Evans and Morgan (1999), “Both physical and mental suffering are covered and the type of treatment which may give rise to Article 3 questions includes the use of force during interrogation or police detention, punishment (corporal and solitary confinement), conditions of detention, extradition and deportation to other states, and discriminatory treatment. Crucial differences in interpretation and in approach, however, exist.” For example, the ill-treatment involved in an Article 3 case is not required to assume the form of deliberate persecution from representatives of the state from which the refugees fled; in fact, in a number of instances, the Commission has encountered cases in which such danger did not originate from agents of the state of origin, but until recently had not found it necessary to rule on the point based on a lack of evidence.
In the case of Ahmed v. Austria, though, the Commission specifically held that the absence of state authority in Somalia was not relevant to the issue involved under article 3; in its ruling in that case, the Court did not specifically refer to the point but did not dispute the Commission’s perspective and subsequently upheld its finding of a violation.
In the case of H.L.R. v. France, the French government attempted to argue before both the Commission and the Court that, as the UN Torture Convention expressly provided that the state authorities must be responsible for the ill-treatment, the European Convention should be interpreted in this way too. In the Chahal case, the Court took into account the assurances of the Indian government that the applicant.”.. would enjoy the same legal protection as any other Indian citizen and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities,” but the Court eventually held that such assurances did not provide Chahal with adequate guarantees of safety.
In H.L.R. v. France, the Court upheld the Commission’s view that the threat did not have to emanate from agents of the state, but found no violation on the facts of the case. The judgment in D. v. UK is regarded as the res judicata of the Article 3 matter. According to Morris (2002), “The protections against expulsion are strongest where there is a child involved and the expellee can demonstrate a continuing and significant role in the child’s care. Protection may also be offered in cases of ill health [such as in D. v. UK].” According to Nicholson and Twomey, “It was accepted by all parties that the government of the state of destination could not be held responsible for the destitution that the applicant would face if returned, but the Court nevertheless found that his expulsion would be a violation of article 3.”
Article 8 of the ECHR, “Right to respect for private and family life,” states: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The net effect of Article 8 was to provide for the protection of personal data by stipulating that:
Everyone has the right to the protection of their personal data;
That such personal data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis established by law;
That everyone has the right of access to the data that has been collected about them and the right to have it rectified; and,
Compliance with the rules is subject to control by an independent authority.
The provisions of Article 8 have been extended to other areas of privacy in the UK as well. For instance, in the case of Powell and Rayner v. United Kingdom, the Court held that aircraft noise could adversely affect the quality of the applicants’ private lives and the amenities of their home.
The International Covenant on Civil and Political Rights (ICCPR) (hereinafter “the Covenant”) also provides some limited rights concerning migration as follows:
The right to freedom of movement within the territory of a contracting party (Article 12(1));
The right to leave any country, including one’s own, and to return (Article 12(2)); and,
The procedural safeguard relating to the expulsion of lawfully resident aliens (Article 13).
The right to seek and enjoy in other countries asylum from persecution as guaranteed by Article 14 of the Universal Declaration of Human Rights, though, is not found as such in the UK’s Covenant to the treaty (Harris and Joseph).
Exclusion frequently raises issues under other provisions of the Covenant. Article 7 prohibits torture or inhuman and degrading treatment, and it is now well recognized that this includes a prohibition on sending people to a country where they are likely to be subjected to such treatment; Article 8 prohibits slavery and servitude; Article 9 sets out conditions concerning the legality of detention; Article 10 regulates conditions of detention; Articles 17 and 23 protect family life; Article 24 protects the rights of children; and Article 26 ensures equality before the law. Both Articles 2(1) and 3 prohibit discrimination, and Article 2 guarantees the right to an effective remedy. All these are matters which are affected by immigration control.
Of these provisions those which enjoy the highest profile in the field of free movement relate to Article 7, particularly in relation to asylum issues, and to Articles 17, 23, and 24 in relation to the exclusion of family members; Article 2(3) (the right to an effective remedy), though, is fundamentally importance in the consideration of these issues because many of both the most salient and the least salient arguments of United Kingdom immigration control are to be found in the appeal system and the availability of judicial review.
When the United Kingdom became a party to the ICCPR it entered several reservations, both on signature and on ratification. Of particular concern is a reservation excluding those subject to immigration control from the Covenant’s protection. The full text of the immigration reservation reads as follows:
The Government of the United Kingdom reserves the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time; and accordingly their acceptance of Article 12(4) and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories.
Things have changed in substantive ways since the UK was able to effect such unilateral exceptions to otherwise-universal regulatory processes, and the UK government has increasingly been called to task for these reservations. In this regard, Harris and Joseph note that, “There is no justification which must be met in order to apply the immigration reservation. The reservation applies not only to Article 12(4), which is mentioned specifically, but to the whole of Articles 12 and 13, and ostensibly to all the provisions of the Covenant which may be breached by immigration measures” (emphasis added).
Certainly, it is reasonable to suggest that three are countless justifications and rationalizations that can be used to support the above-stated reservations, but these have been increasingly dismissed by courts of competent jurisdiction as being unsupportable, when they have been given the opportunity. To date, though, there has been a paucity of opportunities for this reservation to be challenged and either confirmed or refuted by such courts. As Harris and Joseph point out, “If the reservation is accepted as it stands it means that the only yardstick by which the United Kingdom’s compliance with its obligations under the Covenant can be measured is by an examination to ascertain whether domestic law is applied in practice. No action by the United Kingdom Government in this field can be subjected to scrutiny for its conformity with the international standards set out in the Articles of the Covenant.” As Clapham (1996) emphasizes, “The inability of the courts to examine the Secretary of State’s actions for conformity with human rights is highlighted by several recent cases concerning deportations.”
For example, this author cites the case of R. v. Sec. Of State for the Home Department, ex-p. Cheblek (1991) (2 All ER 319), wherein Cheblek was a Lebanese citizen employed as an academic and employed by the Arab League in London in the capacity of a senior research officer. According to Clapham:
Shortly after the beginning of the war against Iraq in 1991 he was arrested and informed of the Home Secretary’s intention to deport him ‘for reasons of national security.’ The Court of Appeal reaffirmed that the nature of national security meant that they would not, and could not, demand further details regarding the necessity of this decision. They also reaffirmed that, as long as the decision could not be said to be ‘irrational’, it would not be reviewed. Lord Donaldson even offered a rationale for the ‘surprising’ decision of the Secretary of State: ‘Those who are able most effectively to undermine national security are those who least appear to constitute any risk to it.
The United Kingdom did not enter such a reservation to the European Convention of Human Rights (ECHR), which contains in its original 1950 text no comparable guarantees to those contained in Articles 12 and 13 of the ICCPR; in fact, such general reservations are prohibited by Article 64 of the ECHR, and the European Court of Human Rights has applied that provision in several cases. According to these authors, “The Fourth Protocol requires respect for the right to move freely within the territory of contracting states and for the right to leave that territory.”
Furthermore, the Fourth Protocol also prohibits the collective expulsion of aliens and states that no one is to be deprived of the right to enter the territory of the state of which he or she is a national; likewise, the Seventh Protocol provides certain procedural guarantees for aliens who have been threatened with expulsion but the United Kingdom has not ratified either the Fourth or the Seventh Protocol to that Convention.
In the case of Abdulaziz, Cabales and Balkandali v. United Kingdom, the United Kingdom Government maintained before both the European Commission and Court of Human Rights that, because it had not ratified the Fourth Protocol to the ECHR, its immigration-control policies and practice could not be considered by the Commission; however, both the Commission and Court held to the contrary, arguing that the failure to ratify the Fourth Protocol did not absolve the United Kingdom from its obligations under other provisions of the ECHR in immigration matters.
In his book, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, Cholewinski (1997) reports that in this case,.”.. The Court concluded that United Kingdom immigration rules, which made it easier for women to join their husbands or fiances settled in the United Kingdom than for men to reunite with their wives or fiancees, were contrary to Article 14 (discrimination on the ground of sex) taken together with Article 8. The Government argued, inter alia, that the reason for these discriminatory immigration rules was to protect the domestic labour market, which would be adversely affected at a time of high unemployment by an influx of immigrant men who were more likely to seek work than female immigrants.” Although the Court accepted that the protection of the domestic labour market constituted a legitimate aim, discrimination between male and female immigrants in furtherance of this aim could not be justified given the importance attached to the advancement of the equality of the sexes in Council of Europe member states.
Chapter Summary.
This chapter presented an overview of the UK Immigration Act of 1971 and comparable legislation controlling movement within the borders of the country. This overview was followed by a discussion of the European Convention of Human Rights in general and Articles 3 and 8 in particular, including a description of various cases that have been decided pursuant to these articles in recent years. A summary of the research, salient conclusions and recommendations are provided in the concluding chapter below.
Chapter 3:
Conclusions and Recommendations
Conclusions
The research showed that the UK Immigration Act of 1971 gave the UK government the power to make immigration rules that guide the practice of the Immigration Service. The Act served to eliminate the previous categories of “alien” and “British subject” and replaced them with essentially racially defined categories of patrials, who were free from restrictions and non-patrials, who remained subject to movement controls. The research also showed that on January 1, 1973, the UK’s entry into the European Community assigned new rights to hundreds of millions of European citizens to enter and work in the UK as EC nationals. In this environment, it is not surprising that issues of national security are increasingly conflicting with the provisions of other controlling legislation such as the European Convention of Human Rights. It is also not surprising that given the high stakes involved, the UK government would be amenable to changing its domestic laws to make them more congruent with the European Union as a whole. While this has certainly been the case in recent years, the fact remains that the UK is faced with some new threats to its national security that are not as readily apparent, perhaps, as in other member states and it is these security concerns that remain the focus of many deportation proceedings today.
Unfortunately, in their effort to mitigate this perceived external threat to their national security, the UK government has increasingly come into conflict with many of the fundamental rights established by the ECHR that have adversely affected its ability to unilaterally establish unique mandates for movement within its borders that are contrary to the provisions of the ECHR. Indeed, the UK government has been on the losing side of many of the legal battles that it has waged with the European courts of competent jurisdiction, and domestic laws have been changed dozens of times in recent years to make them congruent with EU mandates.
Recommendations
Complex problems require complex solutions, and the case of controlling movement in a free and open society is no exception. Given the enormous stakes involved in continuing its drive to full integration into the European Union, the UK is faced with a two-edged sword. On the one hand, it can continue to accede to the EU court’s decisions as they relate to the European Convention of Human Rights or it can seek to enforce exceptions where its national security interests are most likely involved, but it will become increasingly difficult to do both in the future. Taken together and assuming that the UK government is adamant concerning its continuing relationship as a member state of the EU, the foregoing considerations involving Articles 3 and 8 of the ECHR suggest that the following recommendations for the UK government are appropriate today:
Petition the EU for specific exceptions to the provisions of Article 3 and 8 if they abrogate national security interests.
Seek other changes to the ECHR that provide the UK government with the ability to adequately control movement within its borders.
Continue to prosecute violations of domestic laws through deportation proceedings and vigorously adjudicate challenges to its right to do so.
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