deportation


When is family life family life? A look at deportation cases – Lourdes Peroni

27 September 2011 by

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?

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When deporting foreign criminals is in the public interest

10 June 2011 by

RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – Read Judgment 

Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal. This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.

The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.


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Analysis: Children’s “best interests” and the problem of balance

2 February 2011 by

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment

This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.

One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
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Supreme Court bolsters rights of children in deportation cases

1 February 2011 by

Updated | ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment / press summary / our analysis

The Supreme Court has unanimously ruled that in cases where a parent is threatened with deportation, the best interests of their child or children must be taken into account, particularly when the children are citizens by virtue of being born in this country.

Following her leading judgment in last week’s domestic violence case, for which she has been dubbed the “Brilliant Baroness”, Baroness Hale has delivered another wide-ranging, principled judgment which will bring immigration courts into line with current thinking on child welfare and article 8 of the European Convention on Human Rights (the right to family life). The basic point is that children’s views must be taken into account, and this should include asking them what they think.

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“Asylum seeker death driver” case was misunderstood

22 December 2010 by

The Secretary of State for the Home Department v Respondent [2010] UKUT B1 – Read judgment

There has been public outrage over the ruling of two Senior Immigration Judges that it would be unlawful to deport Aso Mohammed Ibrahim, an Iraqi Kurd, who has been labelled an “asylum seeker death driver”

The fury has not been limited to the lay public or the media, but “great anger” has also been expressed by high-profile figures such as Prime Minister David Cameron, a well-known critic of the Human Rights Act. The Government’s embarrassment over the decision has prompted Immigration Minister, Damian Green, to announce that the UK Border Agency (UKBA) will appeal the decision, and there have been more drastic calls from Tory MPs for the scrapping of the Human Rights Act.

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Failure to deport Philip Lawrence killer was not about human rights

29 November 2010 by

It has been widely reported that Learco Chindamo, who was convicted of killing headmaster Philip Lawrence in 1995, has been rearrested only months after being released from jail. The story has reopened a debate over the Human Rights Act, on the basis that it prevented Chindamo from being deported to his native Italy. But did it?

In fact, what the case really highlights is that the unpopularity of the Human Rights Act is in part due to inaccurate media reporting of human rights cases, even 10 years after it came into force.

The Telegraph reported at the end of last week that Frances Lawrence, Philip Lawrence’s widow, has urged the prime minister to act on his previous pledges to scrap the Human Rights Act, as

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Detaining and deporting the mentally ill

26 October 2010 by

Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 – Read judgment

This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.

This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.

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Amnesty International report criticises UK’s record on deportation and torture

27 May 2010 by

Amnesty International published its 2010 Report yesterday, documenting torture and other human rights abuses around the world.

In relation to the UK, Amnesty’s report condemns the UK’s continuing reliance on “diplomatic assurances” in deportation cases where individuals were likely to be at risk of torture or other abuse if sent to countries where the Government accepts they would otherwise be abuse, in particular Algeria and Jordan. The report summarises that:

Reports implicating the UK in grave violations of human rights of people held overseas continued to emerge. Calls for independent investigations into the UK’s role in these violations went unheeded. The government’s attempts to return people to countries known to practise torture on the basis of “diplomatic assurances” (unenforceable promises from the countries where these individuals were to be returned) continued. The European Court of Human Rights found that, by detaining a number of foreign nationals without charge or trial (internment), the UK had violated their human rights. The implementation of measures adopted with the stated aim of countering terrorism led to human rights violations, including unfair judicial proceedings.

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Detention of man suspected of insurgency and terrorism was unlawful

27 May 2010 by

HXA v Home Office (King J) [2010] EWHC 1177 (QB) – Read judgment or our full case comment

The authorities’ statutory power to detain pending deportation had to be motivated purely by the need to remove a subject from the United Kingdom, not to ensure his surrender into custody of the authorities operating in the receiving country. A subject detained not only for the purpose of effecting his removal from the UK, but also for the purpose of investigating whether acceptable arrangements could be made to return him into detention in the receiving country, was being detained unlawfully.

The claimant sought damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.


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The increasing role of human rights law in extradition and deportation cases

25 May 2010 by

Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.

There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.

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Terror case reopens debate on repeal of Human Rights Act [updated]

19 May 2010 by

Debate reopened

We posted this morning on the case of the “Pathway students”, in which two suspected terrorists used human rights law to avoid deportation due to fear of torture. Almost immediately after the decision was announced, the BBC reported that a “commission” is to be set up to address the future of the Human Rights Act. Has the case prompted a swift reconsideration of the Coalition’s position on human rights?

Probably not. It would appear that a commission to review the 1998 Act will be set up, as part of a wide raft of civil liberties reforms to be announced by Deputy Prime Minister Nick Clegg later today. However, the timing of the announcement alongside the terror decision is probably coincidental and the commission is likely to have been planned since last week’s Coalition agreement.

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Detention of mentally ill man was illegal

30 April 2010 by

OM (ALGERIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2010] EWHC 65 (Admin) – Read judgment

The claimant’s detention pending deportation was unlawful where (1) the Secretary of State had failed to take account of the guidance on immigration detention, which indicated that the mentally ill were usually unsuitable for detention and (2) the Secretary of State had failed to notify the Claimant of his right of appeal once a Court of Appeal had, in a similar case, determined such a right to exist.

Summary

The Claimant, having entered the UK illegally in 1996, had a string of criminal convictions and a Class A drug habit. Although he had claimed asylum in 1999 the whole of his claim was found by the Asylum and Immigration Tribunal (“AIT”) to be a fabrication. He had married and had two young children in the UK. The most significant issue, however, was his diagnosis in 2003 as suffering from schizophrenia.

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