Research Proposal: UK Immigration Law

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UK Immigration and European Convention on Human Rights (echr)

The research question in this study is that of: 'To what extent are deportation orders made by the Secretary of State on the ground that it is conducive to the public good in relation to the national security compatible with Articles 3 and 8 of the ECHR?'

This work intends to examine deportation orders when made by the Secretary of State on the basis that such deportation is conducive to the public good regarding national security and the compatibility of such deportation orders with Articles 3 and 8 of the Europeans Convention on Human Rights (ECHR).

European Convention on Human Rights: Article 3 - 'Prohibition of Torture'

The European Convention on Human Rights: Article 3 - 'Prohibition of Torture' states as follows:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment." (Asylum Policy Instructions, 2006)

European Convention on Human Rights: Article 8 - 'Right to Respect for Private and Family Life'

The European Convention on Human Rights - Article 8 - 'Right to respect for private and family life' states as follows:

1) Everyone has the right to respect for his private and family life, his home and his correspondence; and 2) 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." (Asylum Policy Instructions, 2006)

IV. Introduction

Prior to the Human Rights act of 1998 anyone who might want to bring a claim against the United Kingdom government for having acted in breach of the Convention on Human Rights had only the option of filing this claim before the European Court of Human Rights in Strasbourg and was required to demonstrate that all remedies in the UK courts had been exhausted. Because this process was "inevitably lengthy and expensive it was the decision of the Parliament that this was unacceptable and that "the importance of maintaining human rights in the country means that rights guaranteed by the Convention should be enforceable in domestic courts." (Asylum Policy Instructions, 2006) This resulted in the introduction of the Human Rights Act 1998.

In the procedures of the 'Return [of] Irregular Migrants' and as stated by Amnesty International in regards to Human Rights and specifically from the perspective of Articles 3 and 8 of the European Convention on Human Rights (ECHR) there are issues relating to forced return of migrants upon the basis of the individual being a threat to national security in the UK that results in an overbroad definition of specifically how this is applicable. The Amnesty International work entitled: "Returning 'Irregular' Migrants: The Human Rights Perspective" states in relation to Article 2 of the ECHR that Article (3) b: notion of 'illegal stay' should "be further clarified in order to insert safeguards regarding asylum-seekers being removed under a 'safe third country' procedure or responsibility sharing agreement." (Amnesty International, 2006) it is the position of Amnesty International that 'particular safeguards need to be put in place for the return to third countries of asylum-seekers whose applications have not been determined on substance in a Member State. In those cases, removal should be implemented only if access is assured to an asylum procedure in the relevant country and to effective protection in cases where it is needed." (Amnesty International, 2006) the recommendation of Amnesty International is that Article 3(b) be amended to "clearly exclude asylum seekers who have not yet been issued a final decision at first instance or in an appeal." (Amnesty International, 2006)

Amnesty International also states that it "welcomes the provision in article 8(1) for Member States to postpone the enforcement of a return decision as a result of specific circumstances of the individual case." (2006) Amnesty International states that it urges States to "recognize that there are additional factors providing sound grounds for postponing a return decision which are not referred to in the draft directive." (2006) Amnesty International further states the recommendation that "....references be included in Article 8 (2) (b) to cases where the third country fails to co-operate in the issuance of travel document, one of the most frequent obstacles to removal. In order for returns not to destabilize a fragile country, Amnesty International believes that UNHCR should be consulted about the conditions for enforcing removals to countries of origin which have experienced large scale forced migration, conflict situations, or are facing heavy reconstruction challenges." (Amnesty International, 2006) Therefore, Amnesty International states the recommendation that article 8 be amended accordingly.

In regards to unaccompanied minors it is stated that Amnesty International "...welcomes the safeguards included in article 8.2 - in relation to the return of accompanied minors. However, to ensure that these safeguards are implemented in practice, clarification and additional guarantees are needed in order to ensure that the best interest of the child is a primary consideration. In order to enhance children's protection, the directive should establish criteria determining to which competent authorities will assess the need to postpone a removal order. Such criteria could include the age of the claimant, his/her family situation, his/her degree of integration in the host country. Amnesty International also believes that the current draft is too vague when it comes to assessing the reception conditions in the country of origin While in its present form, the draft directive states that minors could be handed over to "a family member," "a guardian or an equivalent representative" or "a competent official of the country of return," we believe that unaccompanied children should only be returned when they are handed over to the person who will be their primary carer, whether that is a family member or a legal guardian. The child and his/her legal guardian in the EU Member State must be informed of the name of the person to whom the child will be handed over, as well as the person's future relationship to the child. An additional provision is required to ensure that any postponement of separated child's return is communicated to that child and to their legal guardian." (Amnesty International, 2006) the recommendation of Amnesty International is that article 8.2- be amended accordingly.

CHAPTER TWO

I. Case Law - Examination of the Issues in Articles 3 and 8

A. Article 8

In order to understand the scope of the protection in Article 3 and Article 8 of the ECHR this work first examines cases that are general in regards to the protections afforded under these two articles. The first of these cases illustrating the general provisions of protection is found in the work entitled: "ECHR Case Law - Copeland vs. United Kingdom" reports a case in which Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was violated. It is stated that the applicant "complained about the monitoring of her telephone calls, e-mail correspondence and internet usage under Articles 8 and 13." (Legile Internetului, 2009) it is additionally stated in the section entitled: 'The Law: I. Alleged Violation of Article 8 of the Convention' as follows:

The applicant alleged that the monitoring activity that took place amounted to an interference with her right to respect for private life and correspondence under Article 8, which reads as follows: (1) "Everyone has the right to respect for his private and family life, his home and his correspondence; and (2) 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, or the protection of health or morals, or for the protection of the rights and freedoms of others." (Legile Internetului, 2009)

It is related that the government "...accepted that the College was a public body for whose actions the State was directly responsible under the Convention. The government additionally stated the following claims:

Although there had been some monitoring of the applicant's telephone calls, e-mails and internet usage prior to November 1999, this did not extend to the interception of telephone calls or the analysis of the content of websites visited by her. The monitoring thus amounted to nothing more than the analysis of automatically generated information to determine whether College facilities had been used for personal purposes which, of itself, did not constitute a failure to respect private life or correspondence. The case of P.G. And J.H. v. The United Kingdom, no. 44787/98, ECHR 2001?IX, could be distinguished since there actual interception of telephone calls occurred. There were significant differences from the case of Halford v. The United Kingdom, judgment of 25 June 1997,… [END OF PREVIEW]

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https://www.essaytown.com/subjects/paper/uk-immigration-law/70084.