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Deportation, Human Rights & Terrorists

When deportation and asylum claims are brought to court, one question often raised is what happens to the asylum seeker upon return if deported?

In many cases, the asylum seeker would face mistreatment, or a risk of serious harm if returned to their country of origin. Such potential harm is for them to prove in court. If there is a significant risk of harm upon return- then a deportation cannot go ahead. It would be illegal, under domestic and EU law, to deport someone to face significant ill treatment. It would further be a breach of their human rights- under both the UK Human Rights Act (1998), and the European Convention on Human Rights. Such a deportation would also be contrary to the spirit and letter of the 1951 UN Convention on Refugees.

Prior to any deportation, it is necessary to establish what dangers, if any, the returned asylum seeker would face. What treatment they can expect to receive upon return to their country of origin is an important part of the asylum and immigration legal processes. Aside from detailed investigations, in some cases assurances are often sought from the asylum seeker’s home country as to their personal safety upon return. The recent landmark Supreme Court case of EM (Eritrea) only served to reaffirm that policy- although did not totally clarify what that meant exactly.

Such human rights issues, and assessing the risk of return, give ample scope for extradition proceedings to be long, drawn our matters. Appeal after appeal, even judicial reviews, are not uncommon in immigration law. However, the Home Office has to act in accordance with law, and with respect to the deportee’s rights, as regards such deportations. The case of Abu Qatada, an extremist cleric deported to Jordan in 2013 after an eight year legal battle fought on such human rights grounds, serves to illustrate this. Recently, such principles were again demonstrated in a New York courtroom.

It was such an issue of human rights, and risks if deported to the US, that kept radical firebrand cleric Abu Hamza tied up in litigation for many years in the UK. Wanted in the US for terrorist offences (amongst which concerned setting up a terrorist training camp in Oregon), there were concerns about the conditions he would face if extradited to the US to face trial. Eventually, the legal battles ended- and he was deported to New York.

As part of the legal and extradition agreement, US authorities made assurances to the British government as to Abu Hamza’s prison terms and conditions, prior to his 2012 extradition. After being convicted of an array of terrorist offences in 2014, February 2015 saw the terrorist leader jailed for life in the shadows of the World Trade Centre.

Sentencing the cleric, Judge Katharine Forrest stated that she was handing down a life sentence because she could think of no time when it would ever be safe to release him. Such a sentence was contrary to promises made to the UK- as was his imprisonment in the notorious Colorado supermax prison facility. However, Judge Forrest left the details (such as the place of imprisonment) to federal prison officials. Federal prosecutors had previously stated that there had been no promises made not to send Abu Hamza to a supermax prison, or as regards handing down a life sentence.

Despite that (apparent) breach of the extradition agreement, the news was greeted with a sense of relief from both sides of the Atlantic, politicians, police and victims alike. Although the terms of the deportation may have been breached, the British government did not seem overly indignant- as it has on previous occasions. Home Secretary Teresa May stated in response to the verdict that she was “pleased that Abu Hamza has finally faced justice… His sentence reflects the severity of his crimes and I am pleased he will spend the rest of his life behind bars where he belongs.”

Inevitably, his lawyers will appeal. With Judge Forest’s verdict, however, there is a sense that justice, although greatly overdue, has finally been done.

 

Human Rights Court and Where Their Last Word Lies in Law-making

Sir John Laws, the longest-serving appeal judge, has challenged the rule of Lord Bingham that Strasbourg  should be the final authority on convention.

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The European Court in Strasbourg is not supposed to have the last word on interpreting human rights convention. According to Sir John Laws, the national courts should make and follow their own interpretations of human rights issues. He stated this while giving one of his Hamlyn lectures in London in November 2013. He, as the longest-serving lord justice of appeal, questioned one important principle established by Lord Bingham 10 years ago. He had postulated that the correct interpretation for a case, called Ullah, can only be made by the human rights court in Strasbourg. Those states that have agreed to the convention, should all accept a uniform meaning for it.

However, Laws expressed his disagreement with this statement. According to him, the Strasbourg court should acknowledge that different cases on human right issues have different facts and therefore, require different answers. Chris Grayling, the justice secretary, also believes that the human rights court has tried to become a supreme court of Europe and needs to refocus its sphere of authority. However, it is important to note that Laws has made clear that he does not question the court’s powers to make rulings that bind the UK under international law.

It is required that the UK abides by the final judgment of the court under Article 46. Furthermore,  section 2 of the Human Rights Act 1998 requires courts in the UK to consider the decisions of the Strasbourg court. However, this did not require states to follow Strasbourg rulings completely towards other countries.

The role of the human rights is to protect the fundamental values of people, said Laws. Human rights should not deal with minor choices on which people can easily disagree in the path of logic and humanity.

Furthermore, the potential supremacy of the EU court in Luxembourg and the human rights court in Strasbourg might challenge the effective development of the English common law.

English law has been developing through importing continental components and thus has been continuously refined.  Such principles were legitimate expectation and proportionality, plus the law of privacy. Those laws became part of the English law through Laws’ career as a barrister and a judge.