The Treatment of Immigrants in the European Court of Human Rights: Moving Beyond Criminalisation 9781509947409, 9781509947430, 9781509947423

Table of contents :
Acknowledgements
Contents
Table of Cases
Table of Legislation
Introduction
I. Immigrants are being Undercriminalised
II. Book Structure
1. The Criminalisation of Immigration in Europe
I. The Intertwining of Criminal Law and Immigration Law
II. The Use of Criminal Justice Practices in Immigration Control
III. The Media Discourse Surrounding Immigration
IV. Moving Beyond Criminalisation
V. Conclusion
2. The Right to Liberty
I. The Use of Immigration Detention
II. An Overview of the Right to Liberty
III. The Test for Criminal Detention
IV. The Test for Immigration Detention
V. Any Real Protection against Arbitrariness?
VI. Conclusion
3. The Right to Liberty: Criminal Limb
I. The Use of Deportation and Administrative Removal
II. An Overview of Article 6
III. The Applicability of Article 6 to Immigration Decisions
IV. Are Immigration Measures (Sometimes) Criminal Penalties?
V. Conclusion
4. The Civil Limb of the Right to a Fair Trial
I. Criminalisation and Immigration Decision-Making Procedures
II. An Overview of the Civil Limb of the Right to a Fair Trial: Civil Rights and Obligations
III. The Applicability of the Civil Limb of Article 6 to Immigration Decisions
IV. Inconsistencies and Interpretations
V. Conclusion
5. The Prohibition on Torture, Inhuman and Degrading Treatment
I. Criminalisation and the Return of Foreign Nationals
II. An Overview of the Prohibition on Torture, Inhuman and Degrading Treatment
III. Exceptions for Immigrants?
IV. Conclusion
6. Moving Beyond Criminalisation: A Two-Tier System
I. A Two-Tier System
II. How Did the Two-Tier System Come into Being?
III. Repercussions of the Two-Tier System: Discrimination
IV. Repercussions of the Two-Tier System: The Erosion of Rights
V. Conclusion
Conclusion
I. Moving Forward
Bibliography
Index

Citation preview

THE TREATMENT OF IMMIGRANTS IN THE EUROPEAN COURT OF HUMAN RIGHTS Over the last twenty years, states across Europe have increasingly criminalised immigration. Criminal law, criminal justice style practices and discourse have all become intertwined with immigration control, representing a new threat to the human rights of immigrants. This book examines the adequacy of the European Court of Human Rights’ response to this development. Reviewing the Court’s case law on deportation, removal and immigration detention, it makes an original contribution to the growing study of ‘crimmigration’.

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The Treatment of Immigrants in the European Court of Human Rights Moving Beyond Criminalisation

Amanda Spalding

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © Amanda Spalding, 2022 Amanda Spalding has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022933884 ISBN: HB: 978-1-50994-740-9 ePDF: 978-1-50994-742-3 ePub: 978-1-50994-741-6 Typeset by Compuscript Ltd, Shannon

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ACKNOWLEDGEMENTS This book would not have been possible without the help and support of so many people. Thank you to everyone at Hart Publishing for their belief in the project and all their hard work including Sasha Jawed, Tom Adams, Anne Bevan, Richard Cox and Sinead Moloney. Thank you very much to all of those who read drafts of this work over the years and whose constructive and detailed feedback was so useful and challenged me to do my best: Professor Aileen McColgan; Professor Ben Bowling; Dr Cian Murphy; Professor Conor Gearty; Dr Ermioni Xanthopoulou; Dr Ioanna Hadjiyianni; Dr Francesca Strumia and Professor Marie-Benedicte Dembour. Over the years I have drawn on the support of so many friends, relatives and colleagues. I would like to thank the PhD community at King’s College London, my colleagues at Canterbury Christ Church University and at the University of Sheffield, whose friendship, advice and understanding of the challenging process was always appreciated. Thank you also to Mum, Dad, Lewis and Cassie for their unfailing love and support. My final thanks must go to my husband, Dr Aveek Bhattacharya, for all his encouragement, love, patience and humour throughout this process.

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CONTENTS Acknowledgements�����������������������������������������������������������������������������������������������������������v Table of Cases������������������������������������������������������������������������������������������������������������������ix Table of Legislation������������������������������������������������������������������������������������������������������ xvii Introduction��������������������������������������������������������������������������������������������������������������������1 I. Immigrants are being Undercriminalised���������������������������������������������������2 II. Book Structure ���������������������������������������������������������������������������������������������10 1. The Criminalisation of Immigration in Europe���������������������������������������������14 I. The Intertwining of Criminal Law and Immigration Law����������������������17 II. The Use of Criminal Justice Practices in Immigration Control�������������25 III. The Media Discourse Surrounding Immigration�������������������������������������33 IV. Moving Beyond Criminalisation����������������������������������������������������������������36 V. Conclusion����������������������������������������������������������������������������������������������������38 2. The Right to Liberty���������������������������������������������������������������������������������������������39 I. The Use of Immigration Detention������������������������������������������������������������39 II. An Overview of the Right to Liberty���������������������������������������������������������45 III. The Test for Criminal Detention����������������������������������������������������������������48 IV. The Test for Immigration Detention����������������������������������������������������������53 V. Any Real Protection against Arbitrariness?����������������������������������������������60 VI. Conclusion����������������������������������������������������������������������������������������������������67 3. The Right to Liberty: Criminal Limb���������������������������������������������������������������69 I. The Use of Deportation and Administrative Removal����������������������������69 II. An Overview of Article 6�����������������������������������������������������������������������������71 III. The Applicability of Article 6 to Immigration Decisions������������������������81 IV. Are Immigration Measures (Sometimes) Criminal Penalties?���������������88 V. Conclusion��������������������������������������������������������������������������������������������������101 4. The Civil Limb of the Right to a Fair Trial��������������������������������������������������� 102 I. Criminalisation and Immigration Decision-Making Procedures��������103 II. An Overview of the Civil Limb of the Right to a Fair Trial: Civil Rights and Obligations���������������������������������������������������105 III. The Applicability of the Civil Limb of Article 6 to Immigration Decisions������������������������������������������������������������������������������107 IV. Inconsistencies and Interpretations���������������������������������������������������������112 V. Conclusion��������������������������������������������������������������������������������������������������123

viii  Contents 5. The Prohibition on Torture, Inhuman and Degrading Treatment���������� 124 I. Criminalisation and the Return of Foreign Nationals���������������������������125 II. An Overview of the Prohibition on Torture, Inhuman and Degrading Treatment�������������������������������������������������������������������������129 III. Exceptions for Immigrants?����������������������������������������������������������������������131 IV. Conclusion��������������������������������������������������������������������������������������������������149 6. Moving Beyond Criminalisation: A Two-Tier System������������������������������� 150 I. A Two-Tier System�������������������������������������������������������������������������������������151 II. How Did the Two-Tier System Come into Being?���������������������������������153 III. Repercussions of the Two-Tier System: Discrimination�����������������������157 IV. Repercussions of the Two-Tier System: The Erosion of Rights������������168 V. Conclusion��������������������������������������������������������������������������������������������������173 Conclusion����������������������������������������������������������������������������������������������������������������� 174 I. Moving Forward�����������������������������������������������������������������������������������������177 Bibliography������������������������������������������������������������������������������������������������������������������181 Index������������������������������������������������������������������������������������������������������������������������������197

TABLE OF CASES European Commission of Human Rights Agee v United Kingdom App No 7729/76 (Commission Decision, 17 December 1976)������������������������������������������������������������������������������������������ 10, 81 Alam and Khan v United Kingdom App No 2991/66 (Commission Decision, 15 July 1967)��������������������������������������������������������� 107–09 Bozano v France App No 9990/82 (Commission Decision, 15 May 1984)���������������������������������������������������������������������������������������������������������110 C v Italy App No 10889/84 (Commission Decision, 11 May 1988)������������������������77 East African Asians v United Kingdom (1995) 19 EHRR CD1��������������������� 159, 166 GS v Federal Republic of Germany App No 2804/66 (Commission Decision, 16 July 1968)�������������������������������������������������������������������������������������������73 Ibbotson v United Kingdom (1999) 27 EHRR CD332���������������������������������������� 89–90 JP v Belgium App No 984/61 (Commission Decision, 29 May 1961)�������������������137 Karara v Finland App No 40900/98 (Commission Decision, 29 May 1998)���������������������������������������������������������������������������������������������������������139 Kareem v Sweden App No 32025/96 (Commission Decision, 25 October 1996)���������������������������������������������������������������������������������������������������110 Kilic v Switzerland App No 12364/86 (Commission Decision, 17 October 1986)���������������������������������������������������������������������������������������������������110 L v United Kingdom App No 12122/86 (Commission Decision, 16 October 1986)���������������������������������������������������������������������������������������������������110 MM v Switzerland App No 43348/98 (Commission Decision, 14 September 1998)����������������������������������������������������������������������������������������������139 Momique-Pola v Sweden (1998) 26 EHRR CD187��������������������������������������������������110 NSV v United Kingdom App No 8971/80 (Commission Decision, 5 May 1981)������������������������������������������������������������������������������������������������������������110 Omkarananda and Divine Light Zentrum v Switzerland App No 8118/77 (Commission Decision, 19 March 1981)�����������������������������������������������������������110 P v United Kingdom App No 13162/87 (Commission Decision, 9 November 1987)�������������������������������������������������������������������������������������������������110 Patel v United Kingdom App No 16009/90 (Commission Decision of 6 September 1991)�������������������������������������������������������������������������������������������������168 Saleem v United Kingdom (1998) 25 EHRR CD193������������������������������������������������110 Singh v United Kingdom App No 2992/66 (Commission Decision, 15 July 1967) �������������������������������������������������������������������������������������������������� 107–09

x  Table of Cases Singh, Uppal and Others v United Kingdom App No 8244/78 (Commission Decision, 2 May 1979)���������������������������������������������������������� 10, 109 Slepcik v Netherlands and Czech Republic App No 30913/96 (Commission Decision, 2 September 1996)������������������������������������������������������110 Tanko v Finland App No 23634/94 (Commission Decision, 19 May 1994)���������������������������������������������������������������������������������������������������������138 Urrutikoetxea v France App No 31113/96 (Commission Decision, 5 December 1996)�������������������������������������������������������������������������������������������������110 X v United Kingdom App No 7902/77 (Commission Decision, 18 May 1977)���������������������������������������������������������������������������������������������������������110 X, Y, Z, V and W v United Kingdom App No 3325/67 (Commission Decision, 15 December 1967)�����������������������������������������������������������������������������108 Zamir v United Kingdom (1983) 5 EHRR CD274���������������������������������������������� 10, 82 European Court of Human Rights A and others v Denmark App No 20826/92 (ECtHR, 8 February 1996)����������������75 A and Others v United Kingdom (2009) 49 EHRR 29���������������������������������������� 10, 55 Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471���������������������������������������������������������������������������� 154, 161, 163–64, 166 Aden Ahmed v Malta App No 55352/12 Judgment of 9 December 2013���������������19 Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23�����������������������������79 Alaverdyan v Armenia App No 4523/04 (ECtHR, 24 August 2010)���������������������105 Aleksanyan v Russia (2011) 52 EHRR 18���������������������������������������������������������� 172–73 Aliev v Ukraine App No 41220/98 (ECtHR, 29 July 2003)���������������������������� 145, 172 Allenet de Ribemont v France (1995) 20 EHRR 557��������������������������������������������������76 Ambruszkiewicz v Poland App No 38797/03 (ECtHR, 4 May 2006)����������������������51 Amegnigan v Netherlands App No 25629/04 (ECtHR, 25 November 2004)�������������������������������������������������������������������������������������� 139, 141 Amuur v France Judgment (1996) 22 EHRR 533���������������������������������������45–46, 177 Andrejeva v Latvia (2010) 51 EHRR 28��������������������������������������������������������������������166 Arcila Henao v Netherlands App No 13669/03 (ECtHR, 24 June 2003)�������� 139–40 Auad v Bulgaria App No 46390/10 (ECtHR, 11 October 2011)�����������������������������55 BB v France App No 30930/96 (ECtHR, 7 October 1998)������������������������������ 139–40 Bendenoun v France (1994) 18 EHRR 54�������������������������������������������������������� 7, 80, 85 Benham v United Kingdom (1996) 22 EHRR 293����������������������������������������� 79–80, 90 Bensaid v United Kingdom (2001) 33 EHRR 10��������������������������������������������� 139, 142 Benthem v Netherlands (1986) 8 EHRR 1������������������������������������������������105, 115, 117 Biao v Denmark (Chamber) App No 38590/10 (ECtHR, 25 March 2014)�����������164 Biao v Denmark [GC] (2017) 64 EHRR 1�������������������������������������������������164–65, 179 Borisova v Bulgaria App No 56891/00 (ECtHR, 21 December 2006)��������������������77 Boulois v Luxemburg [GC] App No 37575/04 (ECtHR, 3 April 2012)�����������������������������������������������������������������������������������91, 105, 116, 177

Table of Cases  xi British Gurkha Welfare Society v United Kingdom (2017) 64 EHRR 11����������������166 Brozicek v Italy (1990) 12 EHRR 371��������������������������������������������������������������������������77 C v Belgium (2001) 32 EHRR 2������������������������������������������������������������������������� 163, 167 Caballero v United Kingdom (2000) 30 EHRR 643���������������������������������������������������49 Camps v France App No 42401/98 (ECtHR, 23 November 1999)������������������������105 Campbell and Fell v United Kingdom (1985) 7 EHRR 165�������������������������������� 78, 80 Chahal v United Kingdom (1997) 23 EHRR 413��������������������������� 10, 54–56, 126–27, 131–32, 144, 149, 153, 180 Charalambos v France App No 49210/99 (ECtHR, 8 February 2000)���������������������������������������������������������������������������������������������������106 Chichlian and Ekindjian v France (1991) 13 EHRR 553�������������������������������������������77 Ciulla v Italy (1991) 13 EHRR 346������������������������������������������������������������������������������51 Conka v Belgium (2002) 34 EHRR 54������������������������������������������������������������������ 54–55 Crowther v United Kingdom App No 53741/00 (ECtHR, 1 February 2005)����������75 Cuscani v United Kingdom (2003) 36 EHRR 2����������������������������������������������������������79 D v United Kingdom (1997) 24 EHRR 423������������������������������������������������138, 142–43 Daktaras v Lithuania (2002) 34 EHRR 60������������������������������������������������������������������76 De Wilde, Ooms and Versyp v Belgium (1979–80) 1 EHRR 438������������������������������52 Deweer v Belgium (1979–80) 2 EHRR 439������������������������������������������80, 91, 105, 177 DH and Others v Czech Republic (2008) 47 EHRR 3����������������������������������������������163 Dragan and Others v Germany App No 33743/03 (ECtHR, 7 October 2004)��������������������������������������������������������������������������� 139, 141 Drozd and Janousek v France and Spain (1992) 14 EHRR 745��������������������������������52 Dybeku v Albania App No 41153/06 (ECtHR, 18 December 2007)���������������������145 Eckle v Germany (1983) 5 EHRR 1����������������������������������������������������������������������� 75, 80 Elles and Others v Netherlands App No 12573/06 (ECtHR, 16 December 2010)�������������������������������������������������������������������������������105 Engel v Netherlands (1979–80) 1 EHRR 647 ������������������������������ 7, 45, 79–81, 85, 87, 89–90, 92, 105, 175 Enhorn v Sweden (2005) 41 EHRR 30������������������������������������������������������������������ 52, 58 Ezeh and Connors v United Kingdom (2004) 39 EHRR 1���������������������������������� 80, 85 Ezeh and Connors v United Kingdom (2004) 39 EHRR 293���������������������������������������7 Feldbrugge v Netherlands (1986) 8 EHRR 425����������������������������������������106, 115, 117 Findlay v United Kingdom App No 22107/93 (ECtHR, 25 February 1997)�����������75 Foucher v France (1998) 25 EHRR 234�����������������������������������������������������������������������78 Funke v France (1993) 16 EHRR 297��������������������������������������������������������������������������76 Gafgen v Germany (2011) 52 EHRR 1����������������������������������������������������������������������129 Garcia Ruiz v Spain (2001) 31 EHRR 22��������������������������������������������������������������������72 Garycki v Poland App No 14348/02 (ECtHR, 6 May 2007)�������������������������������������76 Gaygusuz v Austria (1997) 23 EHRR 364���������������������������������������������������������� 166–67 Goddi v Italy (1984) 6 EHRR 457��������������������������������������������������������������������������������78 Gregacevic v Croatia App No 58331/09 (ECtHR, 10 July 2012)������������������������������78 Gurguchiani v Spain App No 16012/06 (ECtHR, 15 December 2009)������������������������������������������������������������������������������23, 85–88, 91

xii  Table of Cases Gurguchiani v Spain App No 16012/06 (ECtHR, 15 March 2010)�����������������������179 Guzzardi v Italy (1981) 3 EHRR 333���������������������������������������������������������������������������45 H v Belgium (1988) 10 EHRR 339�����������������������������������������������������������������������������117 H v United Kingdom (1988) 10 EHRR 95�������������������������������������������������������������������75 Hadjianastassiou v Greece (1993) 16 EHRR 219�������������������������������������������������������78 Hamer v Belgium App No 21861/03 (ECtHR, 27 February 2008)��������������������������89 Hammerton v United Kingdom (2016) 63 EHRR 23�������������������������������������������������52 Hoogendijk v Netherlands (2005) 40 EHRR SE22���������������������������������������������������163 Huseyn and Others v Azerbaijan App No 35485/05 (ECtHR, 26 July 2011)���������78 Ilascu and Others v Moldova and Russia (2005) 40 EHRR 46���������������������������������52 Ilias and Ahmed v Hungary (2020) 71 EHRR 6������������������������������������������������ 46, 178 Iovchev v Bulgaria App No 41211/98 (ECtHR, 2 February 2006)�������������������������145 Ireland v United Kingdom App No 5310/71 (ECtHR, 18 January 1978)��������������130 Jablonski v Poland (2003) 36 EHRR 27���������������������������������������������������������������� 50–51 Jalloh v Germany (2007) 44 EHRR 32�����������������������������������������������������������������������131 JED v United Kingdom (1999) 27 EHRR CD65�������������������������������������������������������110 John Murray v United Kingdom App No 18731/91 (ECtHR, 8 February 1996)�������������������������������������������������������������������������������������76 Jordan v United Kingdom (2003) 37 EHRR 2�����������������������������������������������������������163 Jussila v Finland [GC] (2007) 45 EHRR 39��������������������������������������������������������� 80, 90 KAB v Sweden App No 886/11 (ECtHR, 5 September 2013)��������������������������������137 Kalashnikov v Russia (2003) 36 EHRR 34������������������������������������������������������� 145, 172 Kamasinski v Austria (1991) 13 EHRR 36������������������������������������������������������������������79 Kanagaratnam v Belgium (2012) 55 EHRR 26����������������������������������������������������������59 Khlaifia v Italy App No 16483/12 [GC] Judgment of 15 December 2016��������������������������������������������������������������������������������������� 104, 177 Konig v Germany (1979–80) 2 EHRR 170����������������������������������������������������������������117 Konstantin Markin v Russia (2013) 56 EHRR 8�������������������������������������������������������164 Konstas v Greece App No 53466/07 (ECtHR, 24 May 2011)������������������������������������79 Koua Poirrez v France (2005) 40 EHRR 2�����������������������������������������������������������������166 Kraska v Switzerland (1994) 18 EHRR 188��������������������������������������������������������������117 Krcmar and Others v Czech Republic (2001) 31 EHRR 41���������������������������������������73 Kremzow v Austria (1994) 17 EHRR 322�������������������������������������������������������������������74 Kudla v Poland (2002) 35 EHRR 11��������������������������������������������������������������������������172 Kuzmin v Russia App No 58939/00 (ECtHR, 18 March 2010)��������������������������������76 Lagerblom v Sweden App No 26891/91 (ECtHR, 14 January 2003)�����������������������78 Lambourdiere v France App No 37387/97 (ECtHR, 2 August 2000)��������������������116 Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1�������������������117 LM and Others v Russia App No 40081/14 (ECtHR, 15 October 2015)����������������59 Lombardo v Italy (1996) 21 EHRR 188���������������������������������������������������������������������115 Luczak v Poland App No 77782/01 (ECtHR, 27 November 2007)�����������������������166 Luka v Romania App No 34197/02 (ECtHR, 21 July 2009)�������������������������������������74 Lutz v Germany (1988) 10 EHRR 182������������������������������������������������������������������ 80, 90 Maaouia v France (2001) 33 EHRR 42������������������������������9, 12, 83–89, 102, 111–12, 114–16, 119, 121–23, 178

Table of Cases  xiii Mahdid and Haddar v Austria (2006) 42 EHRR SE17���������������������������������������������46 Makhfi v France (2005) 41 EHRR 35��������������������������������������������������������������������������73 Masson and Van Zon v Netherlands (1996) 22 EHRR 491�������������������������������������105 Matter v Slovakia (2001) 31 EHRR 32 ���������������������������������������������������������������������118 Mattoccia v Italy (2003) 36 EHRR 47��������������������������������������������������������������������������77 Matyjek v Poland (2011) 53 EHRR 10������������������������������������������������������������������������78 Mayzit v Russia (2006) 43 EHRR 38���������������������������������������������������������������������������78 McKay v United Kingdom (2007) 44 EHRR 41����������������������������������������������������������49 Meho and others v Netherlands (2004) 38 EHRR CD250������������������������139, 141–42 Mikolenko v Estonia App No 10664/05 (ECtHR, 8 October 2009)������������������ 54–55 Minelli v Switzerland (1983) 5 EHRR 554������������������������������������������������������������������76 Moiseyev v Russia (2011) 53 EHRR 9��������������������������������������������������������������������������78 Moustaquim v Belgium (1991) 13 EHRR 802����������������������������������������������������������167 MS v Germany App No 44770/98 (ECtHR, 20 January 2000)�������������������������������166 MSS v Belgium and Greece (2011) 53 EHRR 2���������������������������������������������������������145 Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2008) 46 EHRR 23����������������������������������������������������������������������������������������������������� 59, 179 Muller v France App No 21802/93 (ECtHR, 17 March 1997)��������������������� 48, 51, 61 Muskhadzhiyeva v Belgium App No 41442/07 (ECtHR, 19 January 2010)�������������������������������������������������������������������������������������59 Mustafa (Abu Hamza) v United Kingdom App No 31411/07 (ECtHR, 18 January 2011)�������������������������������������������������������������������������������������76 N v United Kingdom (2008) 47 EHRR 39���������������������10, 12, 124, 141, 143–46, 153 NA v United Kingdom (2009) 48 EHRR 15����������������������������������������������������� 136, 143 NT and ND v Spain Apps Nos 8675/15 and 8695/15 [GC] Judgment of 13 February 2020������������������������������������������������������������������� 104, 177 Nabil and Others v Hungary App No 62116/12 (ECtHR, 22 September 2015)�������������������������������������������������������������������������������������������������59 Ndangoya v Sweden App No 17868/03 (ECtHR, 22 June 2004)������������������������������������������������������������������������������������������������ 139, 141 Niedzwiecki v Germany (2006) 42 EHRR 33������������������������������������������������������������166 Nerattini v Greece App No 43529/07 (ECtHR, 18 March 2009)������������������������������76 Neumeister v Austria (1979–80) 1 EHRR 136�����������������������������������48–49, 51, 73, 80 Ocalan v Turkey (2003) 37 EHRR 10��������������������������������������������������������������������������47 Ocalan v Turkey (2005) 41 EHRR 45��������������������������������������������������������������������������78 Okpisz v Germany (2006) 42 EHRR 32���������������������������������������������������������������������166 Orsus and Others v Croatia (2011) 52 EHRR 7�������������������������������������������������������163 Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1���������������������� 129, 133 Ozturk v Germany (1984) 6 EHRR 409����������������������������������������������������� 7, 80, 85, 90 P and B v United Kingdom (2002) 34 EHRR 19���������������������������������������������������������75 Pakelli v Germany (1984) 6 EHRR 1���������������������������������������������������������������������������78 Panjeheighalehei v Denmark App No 11230/07 (ECtHR, 13 October 2009)���������������������������������������������������������������������������������������������������118 Paposhvili v Belgium App No 41738/10 Judgment [GC] 13 December 2016������������������������������������������������������������10, 124, 147–49, 179–80

xiv  Table of Cases Penev v Bulgaria App No 20494/04 (ECtHR, 7 January 2010)��������������������������������77 Phillips v United Kingdom App No 41087/98 (ECtHR, 5 July 2001)�����������������������89 Pocius v Lithuania App No 35601/04 (ECtHR, 6 July 2010)����������������������������������117 Poltoratskiy v Ukraine (2004) 39 EHRR 43����������������������������������������������������� 131, 145 Poltoratskiy v Ukraine (2004) 38 EHRR 25��������������������������������������������������������������172 Popov v France (2016) 63 EHRR 8�������������������������������������������������������������� 59, 153, 179 Pretty v United Kingdom (2002) 35 EHRR 1������������������������������������������������������������139 Quaranta v Switzerland App No 12744/87 (ECtHR, 24 May 1991)�����������������������79 Rahimi v Greece App No 8687/08 (ECtHR, 5 April 2011)������������������������������ 59, 179 Raimondo v Italy (1994) 18 EHRR 237�����������������������������������������������������������������������45 Rashed v Czech Republic App No 298/07 (ECtHR, 27 November 2008)����������������46 Riad and Idiab v Belgium App No 29787/03 (ECtHR, 24 January 2008)���������������46 Ringeisen v Austria (1979–80) 1 EHRR 455�������������������������������������������������������������106 Roche v United Kingdom (2006) 42 EHRR 30����������������������������������������������������������105 Ruiz-Mateos v Spain (1993) 16 EHRR 505�����������������������������������������������������������������73 Ruiz Torija v Spain (1995) 19 EHRR 553�������������������������������������������������������������������74 Saadi v Italy [GC] (2009) 49 EHRR 30���������������������������������������������� 127–28, 131–32, 134, 142, 180 Saadi v United Kingdom [GC] (2008) 47 EHRR 17������������������������������10, 53–58, 63, 66–67, 103, 149, 153, 178 Sakanovic v Slovenia App No 32989/02 (ECtHR, 13 March 2008)�������������������������75 Salabiaku v France (1991) 13 EHRR 379��������������������������������������������������������������������76 Salah Sheekh v Netherlands (2007) 45 EHRR 50�����������������������������������������������������136 Salaman v United Kingdom (2000) 30 EHRR CD302�����������������������������������������������75 Salesi v Italy (1998) 26 EHRR 187�����������������������������������������������������������������������������117 Salkic v Sweden App No 7702/04 (ECtHR, 29 June 2004)���������������������������� 139, 141 SAS v France (2015) 60 EHRR 11������������������������������������������������������������������������������163 Saunders v United Kingdom (1997) 23 EHRR 313����������������������������������������������������76 Savran v Denmark [2019] ECHR 651����������������������������������������������� 124, 148–49, 179 SCC v Sweden App No 46553/99 (ECtHR, 15 February 2000)����������������������� 139–40 Seagal v Cyprus App No 50756/13 (ECtHR, 26 April 2016)������������������������������������59 Selmouni v France (2000) 29 EHRR 403�������������������������������������������������������������������131 Shala v Switzerland App No 52873/09 (ECtHR, 15 November 2011)��������������������97 Sidabras and Dziautas v Lithuania (2006) 42 EHRR 6�������������������������������������������117 SJ v Belgium (2015) 61 EHRR 21������������������������������������������������������� 142, 144–46, 178 Soering v United Kingdom (1989) 11 EHRR 439�������������������������������������125–27, 132, 137, 143–44, 149, 180 Stafford v United Kingdom (2002) 35 EHRR 32������������������������������������������ 53, 91, 177 Stanev v Bulgaria (2012) 55 EHRR 22��������������������������������������������������������������� 79, 118 Steel and Morris v United Kingdom (2005) 41 EHRR 22������������������������������������������73 Sufi and Elmi v United Kingdom (2012) 54 EHRR 9�����������������������������������������������137 Suso Musa v Malta (2015) 60 EHRR 23�������������������������������������������������������������� 59–60 Szucs v Austria (1998) 26 EHRR 310������������������������������������������������������������������������105 T v United Kingdom (2000) 30 EHRR 121��������������������������������������������������74, 129–30

Table of Cases  xv Tarakhel v Switzerland (2015) 60 EHRR 28���������������������������������������������������������������59 Tatete v Switzerland App No 41874/98 (ECtHR, 6 July 2000)�������������������������������139 Telfner v Austria (2002) 34 EHRR 7����������������������������������������������������������������������������76 Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309�����������������������������������������48 Tsirlis and Kouloumpas v Greece (1998) 25 EHRR 198���������������������������������������������53 Tyrer v United Kingdom (1979–80) 2 EHRR 1���������������������������������������������������������130 Uner v Netherlands App No 46410/99, 26 November 2002 Court (Second Section) Admissibility Decision�������������������������������������������������86 Uner v Netherlands (2007) 45 EHRR 14����������������������������������������� 12, 85–88, 97, 153 Uzukauskas v Lithuania App No 16965/04 (ECtHR, 6 July 2010)������������������������117 V v United Kingdom (2000) 30 EHRR 121�����������������������������������������������������������������74 Vasileva v Denmark (2005) 40 EHRR 27��������������������������������������������������������������������52 Van de Hurk v Netherlands (1994) 18 EHRR 481������������������������������������������������������74 Van Droogenbroeck v Belgium (1982) 4 EHRR 443���������������������������������� 91, 105, 177 Van Mechelen and others v Netherlands (1998) 25 EHRR 647���������������������������������73 Vidacar SA and Obergrup SL v Spain App No 41601/98 (ECtHR, 20 April 1999)����������������������������������������������������������������������������������������106 Vilvarajah and Others v United Kingdom (1992) 14 EHRR 248��������������������� 134–36 VM and others v Belgium App No 60125/11 (ECtHR, 7 July 2015)����������������������������������������������������������������������������������������������59 Welch v United Kingdom (1995) 20 EHRR 247������������������������������������������� 89, 91, 177 Winterwerp v Netherlands (1979–80) 2 EHRR 387������������������������������������������ 52, 118 Witold Litwa v Poland (2001) 33 EHRR 53����������������������������������������������������������������52 Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR 35���������������������� 59–60, 144, 178–79 EU Case Law Case C 562/13 Abdida ECLI:EU:C:2014:2453���������������������������������������������������������120 Case C-249/13 Boudjlida ECLI:EU:C:2014:2431 ���������������������������������������������������120 Case C-69/10 Brahim Samba Diouf [2011] ECR I-07151 ���������������������������� 120, 122 Case C-175/11 HID and BA ECLI:EU:C: 2013:45 �������������������������������������������������120 Case C-383/13 MG and NR ECLI:EU:C:2013:533 �������������������������������������������������120 Case C-277/11 MM ECLI: EU:C:2012:744 �������������������������������������������������������������120 Case C-411/10 and 493/10 NS [2011] ECR I-13905 ����������������������������������������������120 Case C-300/11 ZZ ECLI:EU:C:2013:363 �����������������������������������������������������������������120 UK Case Law Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33�������������������������������������������������������������������116 AM (Zimbabwe) v Secretary of State for the Home Department [2018] 1 WLR 2933�����������������������������������������������������������������������������������������������148

xvi  Table of Cases AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 ���������������������������������������������������������������������������������������������������148 Detention Action v Secretary of State for the Home Department [2014] EWCA Civ 1634������������������������������������������������������������������������������������������64 R (on application of Kiarie v Secretary of State for the Home Department, R (on application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42������������������������������������������������������������������������ 70, 104 R v Carmona 2006 EWCA Crim 508��������������������������������������������������������������������������90 R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542���������������������������������������������160 S v Secretary of State for the Home Department [2011] EWHC 2120 (Admin)���������������������������������������������������������������������������������������������64 Other Case Law Advisory Opinion OC-21/14 Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection Inter-American Court of Human Rights Series A No 21 (19 August 2014)�����������������������������������������������������������������������������������������������������66 Chaparro Álvarez and Lapo Íñiguez Inter-American Court of Human Rights Series C No 170 (21 November 2007)������������������������������������������������������47 Kenneth Good v Botswana African Commission on Human and Peoples’ Rights Comm No 313/05 (12–26 May 2010) ��������������������������� 120, 122 Nadege Dorzema et al v Dominican Republic Inter-American Court of Human Rights Series C No 251 (24 October 2012) ����������������������������� 120–22 Padilla v Kentucky 130 S Ct 1473 (2010)�����������������������������������������������������90–91, 179 Pancheo Tineo Family v Bolivia Inter-American Court of Human Rights Series C No 272 (25 November 2013)��������������������������������������������� 120–22 Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme and Others v Angola African Commission of Human and Peoples’ Rights Comm No 159/96 (11 November 1997) ����������������������������������������������������������������������������������� 120, 122 Velez Loor v Panama Inter-American Court of Human Rights Series C No 218 (23 November 2010)��������������������������������������������������������� 66, 121

TABLE OF LEGISLATION European Union C 303/17 Explanations Relating to the Charter of Fundamental Rights OJ C 2007 303/02��������������������������������������������������������������������������������������119 Charter of Fundamental Rights of the European Union [2012] OJ C326/02�������������������������������������������������������������������������������������������������������������119 Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences [2008] OJ L218/129���������������30 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [2002] OJ L328/17���������������������������������������������������������������������������������������������������������������20 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1������������������������������������������������������������������������ 29, 61 Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice [2013] OJ L180/1����������������������������������������������������������� 30, 62 International American Convention on Human Rights��������������������������������������������������������� 66, 120 Charter of the Organization of American States 1948 as amended������������������������66

xviii  Table of Legislation Convention Relating to the Status of Refugees 1951�����������������������54, 116, 118, 135 European Convention on Human Rights������������������������������������������������������� 4, 19, 31, 39, 44–45, 48–50, 54, 57, 59, 64–65, 67, 71, 76, 81, 84, 86, 89, 97, 102, 104, 111–12, 114, 116, 119, 124, 133–34, 145–46, 161, 172, 175–76, 179 Refugee Convention 1951��������������������������������������������������������������������������� 18, 104, 135 UN Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the UN Convention against Transnational Organised Crime (adopted 15 November 200, entered into force 28 January 2004)������������������������������������������������������������������������������������������������������19 United Kingdom Aliens Act 1905��������������������������������������������������������������������������������������������������������������17 Aliens Registration Act 1914�������������������������������������������������������������������������������������156 Asylum and Immigration (Treatment of Claimants etc) Act 2004������������ 19, 32, 71 Borders Act 2007���������������������������������������������������������������������������������������� 23, 32, 70, 90 Commonwealth Immigrants Act 1962������������������������������������������������������������ 108, 158 Commonwealth Immigrants Act 1968���������������������������������������������������������������������158 Immigration Act 1971������������������������������������������������������������������� 32, 70–71, 83, 88, 91 Immigration Act 2014����������������������������������������������������������������������������21–23, 103, 170 Immigration Act 2016���������������������������������������������������������������������������������� 22, 103, 160 Immigration and Asylum Act 1988����������������������������������������������������������������������������70 Immigration and Asylum Act 1999��������������������������������������������������������������� 32, 70–71 Immigration, Asylum and Nationality Act 2006���������������������������������������� 32, 91, 170 Justice and Security Act 2013�������������������������������������������������������������������������������������170 Nationality, Immigration and Asylum Act 2002���������������������������������������������� 32, 170 Official Secrets Act 1989���������������������������������������������������������������������������������������� 82, 91 Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013/1542�����������������������������������������������������������������32 Prevention of Terrorism Act 2005�����������������������������������������������������������������������������170 Race Relations Act 1965���������������������������������������������������������������������������������������������158 Registration of Aliens Act 1826, 1836�����������������������������������������������������������������������155 Racial and Religious Hatred Act 2006������������������������������������������������������������������������91 Sex Offenders Act 1997�������������������������������������������������������������������������������������������������89 Special Immigration Appeal Commission Act 1997����������������������������������������������170 Terrorism Act 2006�������������������������������������������������������������������������������������������������������91 Terrorism Prevention and Investigation Measures Act 2011��������������������������������170 UK Borders Act 2007��������������������������������������������������������������������������������� 23, 32, 70, 90

Introduction Over the last three decades, across Europe, scholars have noted the ever-increasing trend of criminalising immigration.1 The criminalisation of immigration is a multifaceted phenomenon which, at its core, entwines what was previously a predominantly administrative system of immigration control and enforcement with the criminal law and criminal justice system.2 This is done through the increasing number of criminal offences which relate to immigration or interaction with immigrants, and an expanding use of criminal justice-style measures and practices (most notably detention) in the immigration system. Criminal law and administrative law are intended to serve very different purposes. While criminal law is concerned, generally, with punishing individuals and requires a high standard of proof, the purpose of administrative law is to provide some oversight to government decision-making and is characterised by a significant amount of judicial deference to government decisions.3 Thus, the interweaving of these two distinct areas of law raises numerous issues, not least of which is what this means for human rights. The criminalisation of immigration represents a new threat to the human rights of immigrants. The operation of the modern criminal justice system is an area that is inextricably bound up with human rights. Many human rights provisions directly concern matters related to it such as the right to a fair trial, non-retroactivity of the criminal law and the right to liberty while many other rights have an important role in limiting the measures used by the criminal justice system such as the prohibition on torture, inhumane and degrading treatment or punishment and the right to a private and family life. When this area of law becomes influenced by, and entwined with, immigration law, an area of law that for the last one hundred years has been characterised by a very significant amount of state power and discretion,4 the effect and potential for abuse is significant. The criminal justice system offers the state the ability to engage in public condemnation of immigrants as criminals which legitimates harsh measures such as imprisonment, while the immigration system gives the state the ability to circumvent the high levels of proof and 1 See J Parkin, ‘The Criminalisation of Migration in Europe’ (Centre for European Policy Studies 2013) for an overview of the expanding literature. This phenomenon is not confined to Europe and has been well documented in the United States and Australia as well. 2 J Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime and Sovereign Power’ (2006) 56 American University Law Review 367, 381. 3 E Guild, ‘The Criminalisation of Migration in Europe: Human Rights Implications’ (Commissioner for Human Rights, Council of Europe, 4 February 2010) 4. 4 B Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012) 30.

2  Introduction judicial oversight typical of the criminal justice system. The combination of the two systems thus means that the state is able to effectively further undermine the already precarious human rights of immigrants. It is this aspect of the criminalisation phenomenon that this book explores. This book seeks to expand the knowledge of the criminalisation of immigration by considering the effect that the criminalisation phenomenon has on the human rights of immigrants in Europe and by examining the adequacy of the European Court of Human Rights’ (ECtHR) response. This is done through a thorough examination of the case law of the ECtHR and how it has interpreted migrants’ rights in various areas. In doing so this book explore three key themes. First, that immigrants are being ‘undercriminalised’5 – in other words they are not necessarily benefiting from the safeguards that should accompany ‘criminalisation’. Second, that there is much discussion over the potential punitiveness of immigration measures and the ECtHR should scrutinise this more closely. And third, the ECtHR’s response to criminalisation as well as the way in which it has interpretated immigrants’ rights outside the criminalisation paradigm indicates that something beyond criminalisation is occurring.

I.  Immigrants are being Undercriminalised The criminalisation phenomenon indicates that criminal law and immigration law have become intertwined. However, the extent to which these two systems have been interwoven is important. If immigrants are truly being criminalised, then there should be a corresponding increase in the safeguards granted to them given the traditionally robust procedural protections associated with the criminal law and the criminal justice system. As has been discussed elsewhere and will be shown throughout this book, the ECtHR has not provided a very robust defence of migrants’ rights in the face of criminalisation. In particular, the much lower levels of human rights safeguards in the immigration system enables states to impose all the stigma and condemnation of the criminal law but bypass the stringent safeguards of the criminal justice system when convenient and with very similar outcomes for the migrant. This book will explain, from a legal perspective, why the ECtHR’s response to criminalisation has been inadequate and ineffective by comparing the robust human rights protections for those purely in the criminal justice system with the much lower protection given to those in the immigration system. In doing so it seeks to demonstrate how the Court has allowed states to asymmetrically incorporate criminal justice practices into immigration law, meaning they are able to cherry-pick measures

5 A Ashworth and L Zedner, ‘Preventative Orders: A Problem of Undercriminalisation’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford University Press 2010). Further discussion of this is given below and in ch 1.

Immigrants are being Undercriminalised   3 from both systems. If immigrants were truly being criminalised, they might, in a perverse way, actually be better off. Some US scholars, particularly Stephen Legomsky, have noted this disparity in an American context.6 While European scholars have occasionally briefly noted the difference in human rights protection between domestic criminals and immigrants – the so-called ‘dangers of under-criminalization of the immigration system’7 this is not the main focus of these works. Their arguments tend to focus on human rights in practice, such as the access to legal advice, accountability or services that are rendered in prisons but not in immigration detention centres.8 By comparison, this book will focus on how this undercriminalisation in Europe has come about by examining the actual human rights standards set by an international human rights court, the ECtHR. In order to show this asymmetry in the system this book will consider the criminalisation of immigrations from the perspective of two human rights provisions: the right to liberty and the right to a fair trial.

A.  The Right to Liberty One aspect of the criminalisation phenomenon which has attracted a lot of attention in European scholarship is the detention of immigrants. Immigration detention is a form of administrative detention where migrants are detained while they await an immigration decision or deportation. This practice has become commonplace across Europe9 and has been facilitated by a rapid expansion of the Europe detention estate.10 As well as literature which attempts to keep track of the ever-changing rules and processes of immigration detention, there is much criminological and sociological literature which explores the punitive aspects of this phenomenon which will be discussed in more depth throughout this book. There is also literature which examines the particular experience of immigrants detained in prisons, especially where they are detained under immigration powers after their sentence has been served.

6 SH Legomsky, ‘The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms’ (2007) 64 Washington and Lee Law Review 469. 7 M Bosworth, ‘Human rights and immigration detention in the UK’ in M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011) 173. 8 C Bacon, ‘The Evolution of Immigration Detention in the UK: The Involvement of Private Prison Companies’ (2005) University of Oxford Working Paper 27, available at: www.rsc.ox.ac.uk/files/files-1/ wp27-evolution-immigration-detention-uk-2005.pdf; M Bosworth and M Guild, ‘Governing Through Migration Control: Security and Citizenship in Britain’ (2008) 48 British Journal of Criminology 703; A van Kalmthout, F Hofstee-van der Meulen and F Dunkel (eds), Foreigners in European Prisons (Wolf Legal Publishers 2009); Bosworth, ‘Human rights and immigration detention in the UK’ (n 7). 9 L Arbogast, ‘Migration Detention in the European Union: A Thriving Business’ (Migreurop 2016). 10 M Welch and L Schuster, ‘Detention of Asylum Seekers in the US, UK, France, Germany and Italy: A Critical View of the Globalizing Culture of Control’ (2005) 5 Criminal Justice 331.

4  Introduction A significant amount of literature on immigration detention and the vast majority of the legal literature which analyses immigration detention is concerned with human rights. Most relevant for this book is the scholarship discussing the actual standard of human rights protection given to immigrants when it comes to detention. Article  5 of the European Convention on Human Rights (ECHR) provides for the right to liberty and security but this right is not fully afforded to immigrants. The ECtHR sets a different and lower standard of human rights protection for immigration detention as compared with other forms of detention (as will be discussed at length in chapter two). This lower standard has not gone unnoticed by the academic community.11 Much of the scholarship takes a very doctrinal, legalistic approach to the problem and critiques the ECtHR judgments by comparing them with judgments and guidelines of other human rights bodies and institutions.12 Others, Galina Cornelisse in particular, have looked deeper into the problem to assess why the ECtHR applies this lower standard for immigration detention.13 This research tends to focus on the nature and development of human rights. This is useful literature which points out many of the problematic contradictions and inconsistencies of this area of law, but does so without considering the broader trend of criminalisation and what effect this does or should have on immigration detention. This book will add to the current understanding of immigration detention by examining it within the context of the criminalisation phenomenon and from the perspective of human rights law. As stated above, the European literature generally does not consider immigration detention through the lens of the criminal justice system. An exception to this is an article by Cathryn Costello in which she points out that those who are detained after being convicted of a crime benefit from many other procedural safeguards prior to detention as compared with immigration detention.14 This is a valuable critique, but considering immigration 11 N Blake and R Husain, Immigration, Asylum and Human Rights (Oxford University Press 2003); B Bogusz et al (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Martinus Nijhoff Publishers 2004); H Lambert, The Position of Aliens in Relation to the European Convention on Human Rights (Council of Europe 2007); M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011); C Costello, ‘Immigration Detention: The Grounds Beneath Our Feet’ (2015) 68 Current Legal Problems 143; M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015); C Costello, The Human Rights of Migrants and Refugees in European Law (Oxford University Press 2016). 12 J Hathaway, The Rights of Refugees Under International Law (Cambridge University Press 2005); H O’Nions, ‘Exposing Flaws in the Detention of Asylum Seekers: A Critique of Saadi’ (2008) 17 Nottingham Law Journal 34; H O’Nions, ‘No Right to Liberty: The Detention of Asylum Seekers for Administrative Convenience’ (2008) 10 European Journal of Migration and Law 149. 13 G Cornelisse, ‘Human Rights for Immigration Detainees in Strasbourg: Limited Sovereignty or a Limited Discourse?’ (2004) 6 European Journal of Migration and Law 93; G Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff Publishers 2010); G Cornelisse, ‘Immigration Detention and the Territoriality of Human Rights’ in N De Genova and N Peutz (eds), The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Duke University Press 2010). 14 Costello, ‘Immigration Detention’ (n 11) 157.

Immigrants are being Undercriminalised   5 detention through the lens of criminalisation is not the main focus of this work and this forms only a small section in this piece. Other legal literature which criticises the ECtHR’s case law on immigration detention by comparing it with other case law does not use the ECtHR’s case law on the detention of suspected or convicted criminals as the point of comparison. Instead, the formula most often used is that developed by Cornelisse15 which compares the case law on immigration detention with the case law on the detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics, drug addicts or vagrants.16 This reaffirms the idea that immigration detention is preventative though and does not explain why the test of pre-trial detention should not also be a point of comparison given the more clear similarities between it and immigration detention. Likewise, apart from Costello as noted above, the literature does not explain why the ECtHR’s decision to adopt a similar test for immigration detention and post-conviction detention is flawed. By comparing the much higher standards of protection given in the criminal justice system as compared to immigration detention and discussing the illogical reasoning behind these different standards, the asymmetry of the criminalisation phenomenon is clearly demonstrated.

B.  The Criminal Limb of the Right to a Fair Trial All immigration decisions have been interpreted by the ECtHR as to be outside the remit of the right to a fair trial as protected by Article 6 of the Convention. This includes the decision to order a deportation or removal. This is problematic because deportation and removal have become increasingly entwined with the criminal law and the criminal justice system. Sociological literature has attempted to understand various aspects of the removal process, including controversial and often violent practices as well as attempts to document and understand the experience of immigrants after they have been deported.17 From a human rights perspective, legal scholars have primarily been concerned with the removal of certain groups of immigrants, particularly those whose deportation raises questions about Article 3 15 Cornelisse, ‘Human Rights for Immigration Detainees in Strasbourg’ (n 13); Cornelisse, Immigration Detention and Human Rights (n 13); Cornelisse, ‘Immigration Detention and the Territoriality of Human Rights’ (n 13). 16 Cited by Bosworth, ‘Human rights and immigration detention in the UK’ (n 7) 174; Costello, ‘Immigration Detention’ (n 11) 146. 17 See, eg, D Brotherton and L Barrios, ‘Displacement and Stigma: The Social and Psychological Crisis of the Deportee’ (2009) 5 Crime, Media, Culture 29; L Fekete, A Suitable Enemy (Pluto Press 2009); S Khosravi, ‘Sweden: Detention and Deportation of Asylum Seekers’ (2009) 50 Race & Class 38; L Fekete and F Webber, ‘Foreign Nationals, Enemy Penology and the Criminal Justice System’ (2010) 51 Race & Class 1; D Brotherton and L Barrios, Banished to the Homeland (Columbia University Press 2011) 212; L Schuster and N Majidi ‘What Happens Post-Deportation? The Experience of Deported Afghans’ (2013) 1 Migration Studies 221; L Schuster and N Majidi, ‘Deportation Stigma and Re-migration’ (2015) 41 Journal of Ethnic and Migrant Studies 635.

6  Introduction of the Convention which prohibits torture, inhumane and degrading treatment or punishment.18 There is very little literature, however, which considers the procedural legal ramifications of the criminalisation of immigration which includes the expansive use of deportation and removal as a consequence of either actual or suspected criminal behaviour. There is some US work in this area which offers some valuable arguments that may be helpful for developing work in a European context.19 There is some UK-based work by Ana Aliverti which is informative as it demonstrates how blurred the line between criminal conviction and removal has become from an institutional perspective, but this work is not predominantly concerned with the right to a fair trial.20 Sheona York also briefly considered the issue of deportation and the right to a criminal trial but this analysis was brief and limited to UK law.21 Finally, Izabella Majcher recently has also examined Swiss legislation and the EU Returns Directive and their approach to immigration detention with reference to lack of protection under Article 6 of the Convention, but the focus is on detention as opposed to removal and it does not go into depth in discussing the ECtHR’s immigration case law on this point.22 This book seeks to examine in depth how the ECtHR’s interpretation of the right to a fair trial and immigration decisions is problematic and needs to be reassessed in light 18 C Sawyer, ‘Insufficiently Inhuman: Removing AIDS patients from the UK. N v Secretary of State for the Home Department (Terence Higgins Trust intervening) [2003] EWCA Civ 1369’ (2004) 26 Journal of Social Welfare & Family Law 281; V Bettinson and A Jones, ‘Is Inadequate Medical Care Insufficient to Resist Removal? The Return of Foreign Nationals with HIV/AIDS and Article 3 ECHR’ (2006) 28 Journal of Social Welfare & Family Law 70; H Battjes, ‘In Search of Fair Balance: The Absolute Character of the Prohibition of Refoulement Under Article  3 ECHR Reassessed’ (2009) 22 Leiden Journal of International Law 583; V Bettinson and A Jones, ‘The Integration or Exclusion of Welfare Rights in the European Convention on Human Rights: The Removal of Foreign Nationals with HIV After N v UK’ (2009) 31 Journal of Social Welfare & Family Law 83; A Devillard, ‘The Principle of Non-discrimination and Entry, Stay and Expulsion of Foreigners Living with HIV/AIDS’ (2009) 11 International Journal on Multicultural Societies 91; V Mantouvalou, ‘N v UK: No Duty to Rescue the Nearby Needy?’ (2009) 72 Modern Law Review 815; H Lambert, ‘The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence’ (2013) 25 International Journal of Refugee Law 207. 19 R Pauw, ‘A New Look at Deportation as Punishment: Why at Least Some of the Constitution’s Criminal Procedure Protections Must Apply’ (2000) 52 Administrative Law Review 305; D Kanstroom, ‘Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases’ (2000) 113 Harvard Law Review 1889; Daniel Kanstroom, ‘Deportation and Punishment: A Constitutional Dialogue’ (2000) 41 Boston College Law Review 771; Legomsky (n 6); P Markowitz, ‘Deportation is Different’ (2010) 13 University of Pennsylvania Journal of Constitutional Law 1300. 20 A Aliverti, ‘Exploring the Function of Criminal Law in the Policing of Foreigners: The Decision to Prosecute Immigration-Related Offences’ (2012) 21 Social & Legal Studies 511; A Aliverti, ‘Making People Criminal: The Role of Criminal Law in Immigration Enforcement’ (2012) 16 Theoretical Criminology 417; A Aliverti, Crimes of Mobility: Criminal Law and the Regulation of Immigration (Taylor and Francis 2013). 21 S York, ‘Deportation of foreign offenders – a critical look at the consequences of Maaouia and whether recourse to common-law principles might offer a solution’ (2017) 31 Journal of Immigration, Asylum & Nationality Law 8. 22 I Majcher, ‘The Effectiveness of the EU Return Policy at All Costs: The Punitive Use of Administrative Pre-removal Detention’ in N Kogovšek Šalamon (ed), Causes and Consequences of Migrant Criminalization (Springer 2020); I Majcher ‘Discipline and Punish? Analysis of the Purposes of Immigration Detention in Europe’ (2014) 11(2) AmeriQuests 1.

Immigrants are being Undercriminalised   7 of the criminalisation phenomenon. It is another example of the undercriminalisation of immigration where states are able to bypass the safeguards of the criminal justice system while creating increasing links between deportation and the criminal law.

C.  Immigration Measures may be Punitive One of the main stumbling blocks to asserting the undercriminalisation of immigration is the general belief that immigration measures are not punitive. In the legal profession, immigration measures are generally considered to be nonpunitive as they are an administrative power. However as discussed above the immigration system has become increasingly intertwined with the criminal justice system. Given the significant life-changing effects of immigration measures such as deportation and detention which include effects reminiscent of criminal justice measures, including loss of liberty and removal from society, it is possible that immigration measures may be used for punitive effect. This book argues that in the context of the criminalisation phenomenon, the conception of immigration measures as non-punitive must be carefully scrutinised. It does so by critiquing the arguments made in the case law that immigration measures are not associated with the criminal justice system by pointing out inconsistencies and logical flaws in the reasoning. However, the legal conception of what is a punitive measure is greatly dependent on the real-life effects of the measure. The ECtHR, for example, considers whether a punishment has been inflicted for the purposes of Article 6 by looking at issues such as the severity of the measure and the nature of the offence,23 which includes a consideration of issues such as whether the aim of the rule broken was to be punitive or to act as a deterrent.24 This means that pure legal literature can only be of limited use in assessing the situation. Much criminological and sociological work has been conducted on immigration measures such as immigration detention and deportation or removal orders and whether they may be considered punitive. The question – ‘what is punishment?’ – is still a debated question in criminological theory,25 meaning that scholars take a variety of approaches, including examining the violent physical and psychological effects of immigration measures,26 the goals that immigration measures are used 23 Engel v Netherlands (1979–80) 1 EHRR 647, para 82. 24 Ozturk v Germany (1984) 6 EHHR 409, para 53; Bendenoun v France (1994) 18 EHRR 54, para 47; Ezeh and Connors v United Kingdom (2004) 39 EHRR 293, para 56. 25 See, for an overview, L Zedner, ‘Penal Subversions: When is a Punishment Not Punishment, Who Decides and On What Grounds?’ (2015) 20 Theoretical Criminology 1. 26 Bosworth and Guild (n 8); Fekete and Webber (n 17); Brotherton and Barrios, Banished to the Homeland (n 17) 212; M Bosworth, ‘Subjectivity and Identity in Detention: Punishment and Society in a Global Age’ (2012) 16 Theoretical Criminology 123; M Bosworth, Inside Immigration Detention (Oxford University Press 2014); I Hasselburg, ‘Coerced to Leave: Punishment and the Surveillance of

8  Introduction to achieve,27 and the theoretical similarity between historical forms of punishment and immigration measures.28 This is all very valuable work which points towards immigration measures as punitive and indicates that the ECtHR is failing to look into the issue with sufficient scrutiny. These works are, at the moment however, rather disparate and this book attempts to synthesise the information and discuss it alongside the problematic legal reasoning in case law in order to make a more robust argument that the ECtHR should more carefully assess the use of immigration measures by the state.

D.  The Interpretation of Immigrants’ Rights Outside Criminalisation This book is entitled ‘moving beyond criminalisation’ because it seeks to show how the treatment of migrants may be misconceptualised as ‘criminalisation’ and may rather be ‘undercriminalisation’ due to the failure to provide migrants with the robust protections offered by criminal law and the provisions of the criminal justice system. However, it also seeks to look at the interpretation of rights outside the direct criminalisation phenomenon. The criminalisation phenomenon is part of a wider trend of very harsh immigration regimes in Europe and the two are often related. The criminalisation phenomenon may increase the harshness with which immigrants are dealt with and exacerbate existing issues, but it is not always the root problem in the failure of the Court to protect migrants fully. There have been two significant studies recently which examine the way in the which the European Court of Human Rights treats migrants. First, Marie-Benedicte Dembour’s book, When Humans Become Migrants,29 explores the treatment of immigrants in the ECtHR and compares it with case law emanating from the Inter-American Court of Human Rights. Second, Costello’s book, The Human Foreign National Prisoners in the UK’ (2014) 12 Surveillance & Security 471; E Kaufman, Punish and Expel: Border Control, Nationalism and the New Purpose of Prison (Oxford University Press 2015); S Turnbull, ‘Stuck in the Middle: Waiting and Uncertainty in Immigration Detention’ (2016) 25 Time & Society 61 27 L Weber and L Gelsthorpe, ‘Deciding to Detain: How Decisions to Detain Asylum Seekers Are Made at Ports of Entry’ (2000) Criminal Justice, Borders and Citizen SSRN Paper Series 62, available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=2520382andrec=1andsrcabs=416364andalg=7 andpos=2; L Schuster, ‘A Sledgehammer to Crack a Nut: Deportation, Detention and Dispersal in Europe’ (2005) 39 Social Policy & Administration 606; L Weber, ‘The Detention of Asylum Seekers as a Crime of Obedience’ (2005) 13 Critical Criminology 89; A Leerkes and D Broeders, ‘A Case of Mixed Motives? Formal and Informal Functions of Administrative Detention’ (2010) 50 British Journal of Criminology 830. 28 J Bleichmar, ‘Deportation as Punishment: A Historical Analysis of the British Practice of Banishments and its Impact on Modern Constitutional Law’ (1999) 14 Georgetown Immigration Law Journal 115; W Walters, ‘Deportation, Expulsion and the International Police of Aliens’ (2002) 6 Citizenship Studies 265; D Kanstroom, Deportation Nation (Harvard University Press 2007); Cornelisse, Immigration Detention and Human Rights (n 13). 29 Dembour, When Humans Become Migrants (n 11).

Immigrants are being Undercriminalised   9 Rights of Migrants and Refugees in European Law,30 provides an overview of both the ECtHR case law and the case law of the Court of Justice of the European Union as it relates to migrants. Both of these works offer important critical insights into the reasoning of the ECtHR in migrant cases. They both find the Court tends to give primacy to the legal principle that states have the right to control immigration over human rights considerations. Dembour refers to this as the ‘Strasbourg reversal’ or ‘state control principle’31 while Costello calls it the ‘statist assumption’.32 This tension between ideas of sovereignty and the human rights of immigrants is central to both books. Dembour shows how another regional human rights court, the Inter-American Court of Human Rights, has taken a different approach to the question of migrants’ rights which does not give primacy to state powers. Costello focuses on various flashpoints between the rights of the migrant and the powers of the state such as questions of family reunification, immigration detention and asylum seeking and dissects how both the ECtHR and the European Union have dealt with these issues. Both works provide valuable state-of-the-art overviews on the condition of the human rights of immigrants in Europe and both indicate that in order to truly understand the treatment of immigrants in Europe, the criminalisation of the immigration framework may be insufficient. In this book, two aspects of the ECtHR’s case law outside the criminalisation phenomenon will be considered. The first is the law relating to immigration decisions and the civil limb of the right to a fair trial as protected by Article 6 of the Convention. The ECtHR has found that immigration decisions fall completely outside the scope of Article 6. This issue has not been discussed in depth in the academic community, including in the above works by Costello and Dembour.33 The last significant work that considered the civil limb of the right to a fair trial and immigration decisions was published in 1997 by Pieter Boeles.34 This work provides some valuable insights into the inconsistency of the Court’s case law but it was published before the landmark ECtHR case on the point, Maaouia v France, which was decided in 2000.35 Given the potential for the civil limb of Article 6 to encompass a wide range of decisions relating to immigration, such as the right to work and practise a profession, the right to social assistance and its coverage of rights relating to property and family law, it would be an effective tool in giving immigrants more robust protection against the powerful state. The other area of the Court’s case law that will be examined is its case law on immigrants and Article 3, which prohibits torture, inhumane or degrading treatment or punishment. This has been chosen because Article 3 is supposed to be 30 Costello, The Human Rights of Migrants and Refugees in European Law (n 11). 31 Dembour, When Humans Become Migrants (n 11) 1, 3–5. 32 Costello, The Human Rights of Migrants and Refugees in European Law (n 11) 9–12. 33 Although Dembour does engage in some discussion of Article  6 and migrants, this does not include an in-depth analysis of the reasoning in the Article  6 case law: Dembour, When Humans Become Migrants (n 11) 355–56. 34 P Boeles, Fair Immigration Proceedings in Europe (Martinus Nijhoff Publishers 1997). 35 Maaouia v France (2001) 33 EHRR 42.

10  Introduction absolute, meaning that a state cannot legitimately derogate from this Article or justify any breach. However, the Court has arguably compromised this absoluteness for migrants through its case law on diplomatic assurances, returns to situations of general violence and ‘healthcare removals’. Although recently Dembour provided an excellent overview of the problematic interpretation of Article 3 by the Court when it comes to migrants,36 it is worth reiterating the point given the significance of the Court compromising an absolute prohibition. In particular, this book will take a slightly different approach to Dembour and focus its attention on the problematic legal reasoning in the N v United Kingdom37 in which the ECtHR explicitly stated that a violation of Article 3 could be justified in circumstances concerning migrants; it also brings the issue right up to date by incorporating the subsequent case law such as Paposhvili.38 One important limitation of this book is that many of the examples of practice are taken from a UK context. There are two reasons for this. First, in order to fully explain and conduct a rigorous legal analysis of some of the problems with various aspects of the criminalisation trend requires a detailed and in-depth discussion of the use and effects of such policies. While chapter one of this book demonstrates that this trend is evident across Europe by giving a brief overview of the kinds of laws and practices that have been adopted, a full discussion of all the relevant policies across Europe in depth would be a lengthy book in and of itself. Second, UK practice was chosen because a significant number of landmark cases concerning immigrants’ rights have come from there – such as Saadi,39 Chahal40 and A and Others41 concerning immigration detention; early Article  6 Commission decisions such as Agee,42 Zamir43 and Singh, Uppal and Others44 whose reasoning was followed by the Court; and Article 3 cases such as N v United Kingdom45 which is the focus of chapter five. This makes it appropriate to use the UK context as an example.

II.  Book Structure Chapter one of this book will provide an overview of the criminalisation of immigration in Europe. This is crucial information which puts the arguments of this 36 M-B Dembour ‘The Sleeping Beauty Awakens Late: An Absolute Prohibition with Many Buts (Around Soering)’ in M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015). 37 N v United Kingdom (2008) 47 EHRR 39, para 44. 38 Paposhvili v Belgium App No 41738/10 Judgment [GC] 13 December 2016. 39 Saadi v United Kingdom [GC] (2008) 47 EHRR 17. 40 Chahal v United Kingdom (1997) 23 EHRR 413. 41 A and Others v United Kingdom (2009) 49 EHRR 29. 42 Agee v United Kingdom App No 7729/76 (Commission Decision, 17 December 1976). 43 Zamir v United Kingdom (1983) 5 EHRR CD274. 44 Singh, Uppal and Others v United Kingdom App No 8244/78 (Commission Decision, 2 May 1979). 45 N v United Kingdom (n 37).

Book Structure   11 book in context and demonstrates the scale of this phenomenon. The chapter will provide a summary of the criminalisation of immigration in Europe by discussing three of its main elements. The first two: (1) the intertwining of the criminal law and immigration law; and (2) the incorporation of criminal justice practices into the immigration system are areas which clearly fall within this still debated definition of the ‘crimmigration’ trend.46 The third – the discourse on immigration – is discussed briefly because some scholars consider anti-migrant discourse to be an important factor in enabling and legitimising the criminalisation trend.47 Chapter two will focus on the ECtHR case law on deprivations of liberty. It will begin with a brief outline of how immigration detention is being used across Europe and the right to liberty as protected in Article 5 of the Convention. This chapter will contrast Article 5’s high standard of protection from incarceration for those in the domestic criminal justice system with its fairly minimal protection against immigration detention by comparing pre-trial detention and immigration detention. This comparison is made for two reasons. First, because the test for pre-trial detention is representative of the usual high level of protection that the Court imposes on deprivations of liberty in other areas. Second, because pre-trial detention and immigration detention exist ostensibly to serve the same goals: to prevent absconding and for necessary public protection. Yet there is a huge difference in the level of protection against pre-trial detention and protection against immigration detention with no explanation given as to why this is the case nor why immigration detention is given much less protection than most other forms of detention. The only other form of detention that has such a low bar for protection is detention after a criminal conviction, but it is argued that this similarity is odd because the criminal justice system provides many other protections in the lead up to convictions which those subject to immigration detention do not benefit from. Chapter three will focus on the ECtHR’s approach to the criminal limb of the right to a fair trial and how the criminalisation of immigration has affected the use of deportation and administrative removal. It will outline how the wider use and imposition of harsher criminal consequences for immigration offences and immigration consequences for criminal offences has changed criminological understanding of immigration measures. It will move on to examine how deportation and administrative removal are being imposed in response to both proven and alleged criminal conduct and how the ECtHR has dealt with cases 46 Stumpf, ‘The Crimmigration Crisis’ (n 2) 381; Legomsky (n 6) 471; J Stumpf, ‘The Process is the Punishment in Crimmigration Law’ in K Aas and M Bosworth (eds), The Borders of Punishment (Oxford University Press 2013) 61; MAH van der Woude, JP van der Leun and J-AA Nijland, ‘Crimmigration in the Netherlands’ (2014) 39 Law & Social Inquiry 560, 562. 47 J Brouwer, M van der Woude and J van der Leun, ‘Framing migration and the process of crimmigration: A systematic analysis of the media representation of unauthorised immigrants in the Netherlands’ (2017) 14 European Journal of Criminology 100. See also M Maneri, ‘Media Discourse on Immigration: Control Practices and the Language we Live’ in S Palidda (ed), Racial Criminalization of Migrants in the 21st Century (Ashgate 2011) 79; van der Woude, van der Leun and Nijland (n 46) 562.

12  Introduction arguing that this means these measures are being used as criminal penalties. This will include lengthy discussion of early Commission case law as well as of cases such as Maaouia48 and Uner.49 It will be argued that this case law does not adequately account for the proliferation in use and the way in which immigration law has become bound up with the criminal law in this area. The danger of states giving offences a dual existence in both criminal and administrative laws will be discussed as this allows the state to bypass the criminal justice system when it wishes to do so. Chapter four will consider the ECtHR case law on the applicability of the civil limb of Article 6 to immigration decisions. In order to put this context, the chapter will briefly discuss how the criminalisation of immigration is related to a wider ‘crackdown’ on immigration and how this has led to increasingly precarious decision-making procedures for immigration matters. The approach of the ECtHR generally to the interpretation of ‘civil rights and obligations’ will be explored before turning to how this has been dealt with in the immigration context. This will include a discussion of early Commission case law and the Maaouia case.50 It will be argued that there are several inconsistencies and arguments over interpretation in this area which undermine the Court’s reasoning, especially in relation to immigration decisions which decide refugee status. Chapter five will focus on the ECtHR’s interpretation of Article 3’s prohibition on torture and inhuman or degrading treatment when it comes to immigration issues. Although the Court has made many positive steps in this area to maintain equality between immigrants and citizens, there are several situations which reveal that immigrants are receiving inadequate protection. This prohibition has been interpreted by the Court to be absolute but there are several cases concerning migrants which indicate that the Court has accepted exceptions to this right. Issues such as the return of seriously ill people to states where they will not receive adequate medical care, the use of diplomatic assurances in removals to unsafe states and deportations to situations of general violence will be discussed, including a lengthy exploration of the case of N v United Kingdom51 and subsequent case law. This is particularly important as it demonstrates an area where the ECtHR appears to have responded to criticism of its interpretation of migrants’ rights and adjusted its approach. Chapter six seeks to demonstrate why fully understanding the ECtHR’s approach to migrants is important and explores the potential underlying dangers that arise from this case law. It considers how useful the criminalisation framework is to understand the situation of migrants in Europe as well how this treatment of immigrants in the ECtHR has come about and why it is undesirable.

48 Maaouia

v France (n 35). v the Netherlands (2007) 45 EHRR 14. 50 Maaouia v France (n 35). 51 N v United Kingdom (n 37). 49 Uner

Book Structure   13 This will include a discussion of whether immigrants are in fact facing a two-tier system of both criminal justice and human rights in Europe. It will then go on to discuss the undesirable consequences that may arise from the case law of the ECtHR and a two-tier system such as the possibility of unchecked racial discrimination and the potential for this style of interpretation to spread to other areas of human rights law.

1 The Criminalisation of Immigration in Europe Over the past 20 years, Europe’s approach to immigration has come to be defined by criminalisation. The criminalisation of immigration or ‘crimmigration law’1 is still a relatively new development and so scholars are still in the process of constructing its core elements and delimitating its boundaries.2 For a long time the literature focused much more on documenting the changing landscape of immigration and criminal law rather than attempting to understand the theoretical basis of this trend.3 Crimmigration does not affect all migrants equally and is primarily targeted, particularly in media and political discourse, at non-white, unskilled and poor migrants.4 This can be seen at a practical level in the differential treatment of migrants through, for example, differing entry requirements and visa processes. Katja Franko has called this stratification the difference between ‘crimmigrants’ (who are regarded as suspicious) and ‘bona fide travellers’ (who are regarded as trustworthy).5 The category of ‘bona fide travellers’ does not necessarily exclude all from the global south but rather is concentrated on those with citizenship of ‘trusted’ countries or with strong economic or cultural capital (diplomats, business travel, etc).6 Nevertheless, the frequent appeals to the idea of ‘illegal immigrants’ in the public discourse on migration underlines a general association between migrants and criminality. This discourse frequently fails to recognise that illegality is a condition that immigrants can move in and out of depending on their circumstances and changes in government policies.7 For example, the treatment of asylum claims from a certain country can change swiftly despite little change

1 J Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime and Sovereign Power’ (2006) 56 American University Law Review 367. 2 CCG Hernandez, ‘Creating Crimmigration’ (2013) 6 Brigham Young University Law Review 1457. 3 Stumpf, ‘The Crimmigration Crisis (n 1) 377. 4 A Aliverti, Crimes of Mobility: Criminal Law and the Regulation of Immigration (Taylor and Francis 2013) 4. 5 K Aas ‘Crimmigrant Bodies and Bona Fide Travellers: Surveillance, Citizenship and Global Governance’ (2011) 15 Theoretical Criminology 331. 6 ibid. 7 K Franko, ‘The Deviant Immigrant: Migration and Discourse About Crime’ in K Franko Globalization and Crime, 3rd edn (Sage 2020) 85.

The Criminalisation of Immigration in Europe  15 in situation – the treatment of asylum claims from Eritrea in the United Kingdom being a well-known example of this problematic practice.8 The ‘crimmigration’ phenomenon has been associated with the concept of ‘new penology’ in that it is concerned with the preventative identification and management of ‘risky’ populations.9 As Ben Bowling and Sophie Westenra have argued, targeting people on the basis of colour and visible difference is tied up with attempting to identify ‘suspicious’ populations.10 Thus, crimmigration is partly justified and explained by the increasing intertwining of immigration with security concerns. For example, David Cole, among many others, has argued that immigration legislation, procedure and rhetoric were the centrepiece of post-9/11 counterterrorism measures11 and this pattern has been likewise noted in Europe.12 Some scholars however argue for caution in overstating the link between antiterror legislation and crimmigration, pointing out that the criminalisation of immigration trend was evident before the 9/11 attacks and that much of the immigration discourse and legislation does not focus on counter-terror but on a broader spectrum of alleged social problems13 meaning the migrant is a more nuanced ‘folk devil’ – a convenient scapegoat and target for modern anxieties.14 The rhetorical link between immigration and crime has resulted in a proliferation of changing legislation, measures and procedures for dealing with immigration in recent years – in Europe but also in the United States and Australia. Although the exact measures used vary, it is clear that the criminalisation of immigration encompasses situations where the criminal law and immigration law have overlapped, most commonly in the form of the creation or expansion of both immigration consequences for criminal behaviour and criminal consequences15 for immigration violations.16 Stumpf, who coined the term ‘crimmigration’, defines the key aspects of the criminalisation of immigration 8 Right to Remain, ‘Politics Before Protection: the story of Eritrean asylum seekers in the UK’ (2017), available at: righttoremain.org.uk/politics-before-protection-the-story-of-eritrean-asylum-seekers-inthe-uk/. 9 B Bowling and S Westenra, ‘A really hostile environment: Adiaphorization, global policing and the crimmigration control system’ (2018) 24 Theoretical Criminology 163; T Miller, ‘Citizenship and Severity: Recent Immigration Reforms and the New Penology’ (2003) 17 Georgetown Immigration Law Journal 611. 10 B Bowling and S Westenra ‘Racism, immigration and policing’ in M Bosworth, A Parmar and Y Vázquez (eds), Race, Criminal Justice and Migration Control: Enforcing the Boundaries of Belonging (Oxford University Press 2018). 11 D Cole, Enemy Aliens (The New Press 2003). 12 L Fekete, A Suitable Enemy (Pluto Press 2009). 13 Aliverti (n 4). 14 Bowling and Westenra, ‘A really hostile environment (n 9); L Weber and B Bowling, ‘Valiant beggars and global vagabonds: Select, eject, immobilize’ (2008) 12 Theoretical Criminology 355. 15 Or consequences that mimic criminal ones such as detention. 16 Stumpf, ‘The Crimmigration Crisis’ (n 1) 381; SH Legomsky, ‘The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms’ (2007) 64 Washington and Lee Law Review 469, 471; J Stumpf, ‘The Process is the Punishment in Crimmigration Law’ in K Aas and M Bosworth (eds), The Borders of Punishment (Oxford University Press 2013) 61; MAH van der Woude, JP van der Leun and J-AA Nijland, ‘Crimmigration in the Netherlands’ (2014) 39 Law & Social Inquiry 560, 562.

16  The Criminalisation of Immigration in Europe as ‘(1) substance of immigration law and criminal law increasingly overlaps, (2) immigration enforcement has come to resemble criminal law enforcement, and (3) the procedural aspects of prosecuting immigration violations have taken on many of the earmarks of criminal procedure’.17 This was referring to the US context and indeed much of the ‘crimmigration’ literature comes from the United States18 but there has been a small but growing academic interest in this phenomenon in Europe.19 This literature draws heavily on the US theoretical literature in defining criminalisation and identifies similar key characteristics in its definitions of the phenomenon usually focusing on the increasing overlap between criminal law and immigration law and the use of criminal justice and security style measures in the immigration sphere.20 The role of discourse on immigration has also been identified as important to the criminalisation of immigration as this feeds and shapes public perception.21 The use of criminal law, criminal justice practices and rhetoric in the immigration system have a significant effect because they convey a message. The law does not operate in a vacuum as ‘legal words and practices are constructs which carry powerful meanings not just to those trained in the law but also to lay people as well’.22 Criminal law is used to censure wrongdoing and represents moral condemnation from the state – in other words criminal law ‘tends to focus principally on the bad guys’.23 Thus, the criminalisation of immigrants results in them being demonised or cast as ‘the bad guys’ in European society. The public perception of immigrants as criminals results in calls for policies that incorporate criminal justice norms into the immigration system. The incorporation of such norms fuels the public perception of immigrants as criminals then, creating a vicious cycle. This chapter will focus on three fundamental elements of the European criminalisation of immigration which are necessary to understand to scale and impact of this phenomenon: (1) the intertwining of criminal law and immigration law; (2)  the use of criminal justice-style practices in immigration enforcement; and (3) the discourse of immigration. Each of these aspects will be discussed in turn. 17 Stumpf, ‘The Crimmigration Crisis’ (n 1) 381. 18 Why this should be the case is not particularly clear though some have speculated that the long history of academic interest in the link between migration and criminality in the United States has played a role. See J Parkin, ‘The Criminalisation of Migration in Europe’ (Centre for European Policy Studies 2013) 1. 19 K Aas and M Bosworth (eds), The Borders of Punishment (Oxford University Press 2013) vii; Parkin (n 18) 1. 20 See, eg, E Di Molfetta and J Brouwer, ‘Unravelling the crimmigration knot: penal subjectivities, punishment and the censure machine’ (2019) 20 Criminology & Criminal Justice 302; Bowling and Westenra, ‘A really hostile environment (n 9); F Pakes and K Holt, ‘Crimmigration and the prison: Comparing trends in prison policy and practice in England and Wales and Norway’ (2017) 14 European Journal Of Criminology 63; Aliverti (n 4). 21 See, eg, Franko, ‘The Deviant Immigrant’ (n 7); Parkin (n 18). 22 A Kubal, ‘Struggles Against Subjection. Implications of Criminalisation of Migration for Migrants’ Everyday Lives in Europe’ (2014) 62 Crime, Law and Social Change 91, 96. 23 Legomsky (n 16) 474.

The Intertwining of Criminal Law and Immigration Law   17

I.  The Intertwining of Criminal Law and Immigration Law The past 20 years has seen a significant rise in the use of criminal sanctions and administrative sanctions which mirror criminal ones (such as detention) in the field of immigration control. For example, in the United Kingdom (UK) (from 1997 to 2016) 89 new immigration offences were created – the most significant increase in immigration crimes since the Aliens Act 1905. The different types of action which have been criminalised will be considered in this section. The criminalisation of actions taken by immigrants will be discussed first, followed by an examination of the criminalisation of actions carried out by persons who engage with immigrants.

A.  The Criminalisation of Entry and Stay Several actions which can be categorised as ‘entry’ and ‘stay’ offences or ‘immigration status’ offences have been criminalised. Typically, these crimes can only be committed by immigrants, although as will be demonstrated later in this chapter, citizens who facilitate or assist irregular or illegal entry or stay have also faced increasing criminalisation. Irregular or illegal entry refers to the crossing of a border without fulfilling the necessary legal requirements (eg, being in possession of the correct visa). Irregular or illegal entry is punished widely across Europe with imprisonment or a fine.24 The term irregular or illegal stay refers to the act of residing in a state without the proper authorisation for that residence. Like irregular entry, it is also widely criminalised with fines and imprisonment as potential punishments. Both irregular entry and stay can also frequently result in a ‘re-entry ban’ which prohibits the migrant from returning; often the violation of a re-entry ban is itself also a criminal offence. The severity with which European countries punish these crimes varies significantly. The level of fine can be relatively low such as in the Czech Republic and Estonia where maximum fines are below €1,000 whereas in countries such as Austria, Cyprus, Italy and the United Kingdom maximum fines exceed €4,000.25 Many countries sit more in the middle with substantial maximum fines somewhere between €1,000 and €3,500. In the case of violation of re-entry bans, the fines are often higher – reaching, for example, €7,500 in Austria and €10,000 24 European Union Agency for Fundamental Rights, ‘The Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them’ (March 2014), available at: fra.europa.eu/en/ publication/2014/criminalisation-migrants-irregular-situation-and-persons-engaging-them. 25 See the relevant country profile reports from Global Detention Project which tracks the criminalisation of immigration status offences. Global Detention Project is available at: www.globaldetentionproject.org/. All country profile reports used in this book were written and up-to-date between 2017 and 2020.

18  The Criminalisation of Immigration in Europe in  Greece.26 Imprisonment is also a penalty for irregular entry or stay in many states but there is less variation than with fines. Most European states, including the United Kingdom, Sweden, Norway, the Netherlands, Ireland, Germany, France, Finland and Denmark, set the maximum prison term for these types of crime at between six months to one year.27 There are some outliers as well with some states imposing very short prison sentences such as 30 days in Croatia and three months in Latvia, and likewise some with longer sentences such as up to five years in Bulgaria and three years in Cyprus and Hungary.28 Although these are the legal provisions, there is evidence that in some states actual practice is often not as severe as the legislation allows. For example, in Finland and Germany although imprisonment is a potential punishment for irregular entry and stay, in reality it is rarely used, and fines are much more commonly imposed.29 There is also evidence of countries abusing and misusing powers associated with criminalisation of immigration, especially in respect to asylum seekers who under Article 31 of the Refugee Convention should not be subjected to criminal penalties. For example the United Nations Refugee Agency reports that in Bulgaria in 2017 3.5 per cent of asylum seekers arriving at the border ‘were prevented to apply for asylum at the border, allegedly, in order to be convicted beforehand’,30 and likewise in the Czech Republic non-governmental organisations (NGOs) have reported that asylum seekers have been denied access to the asylum system and are instead imprisoned for the use of forged documents.31 It is also clear that despite the existence of such criminal legislation in European states, this has not replaced their administrative immigration regimes which are still used extensively. This of course raises questions about the legitimacy of such a dual system and this will be tackled in later chapters of this book. There are some European states which have very minimal or no criminalisation provisions when it comes to irregular or illegal stay or entry. Slovakia and Portugal for instance have not criminalised irregular entry or stay and instead deal with these issues under a pure administrative law system.32 Some states which previously criminalised irregular entry and stay have subsequently decriminalised it. Romania, for example, decriminalised immigration status offences in 2012 and Malta broadly decriminalised immigration status offences in 2002.33 However, this does not mean that ‘crimmigration’ is absent from these countries as other aspects 26 ibid. 27 ibid. 28 ibid. 29 ibid. 30 UNHCR, Bulgarian Helsinki Committee, and General Directorate of Border Police, ‘Bulgaria, 2017 Annual Border Monitoring Report – Access to Territory and International Protection’ (25 June 2018) 9, available at: www.bghelsinki.org/media/uploads/special/2017_annual_report_access_to_ territory_and_asylum_procedure_en.pdf. 31 Hungarian Helsinki Committee (HHC), ‘Pushed Back at the Door: Denial of Access to Asylum in Eastern EU Member States’ (2017) 9, available at: www.helsinki.hu/wp-content/uploads/pushed_ back.pdf. 32 See the relevant country profile reports from Global Detention Project. 33 ibid.

The Intertwining of Criminal Law and Immigration Law   19 of the phenomenon such as prison-like detention under immigration powers are still used. Maltese immigration practices have been particularly problematic and controversial, with policies such as automatic mandatory detention for all irregular arrivals (which legally ended in 2015 but is still largely practised according to NGOs)34 and long-standing concerns about the conditions in immigration detention with the European Court of Human Rights (ECtHR) finding they amounted to ill-treatment in violation of Article 3 of the European Convention on Human Rights (ECHR) in 2013.35 Although irregular entry and stay are offences in and of themselves, some states also punish behaviours that are associated with this, such as actions that may be undertaken to avoid detection. For example, in the United Kingdom the failure to provide immigration documents, to provide fingerprints, to complete a form accurately or to attend an immigration interview all constitute offences which can result in up to two years in prison.36 In Finland, failing to provide the authorities with an address or refusing to hand over travel documents such as passports or travel tickets are also separate offences from irregular entry and stay.37 It is an offence in Italy to fail to show documents certifying legal residence, without reasonable justification, when asked by law enforcement officers.38

B.  The Criminalisation of Interaction with Migrants The criminalisation phenomenon is not confined to the immigrants themselves, particularly when it comes to facilitating irregular entry or stay. In many states, those who aid immigrants in entering and staying in the country without authorisation may also be considered guilty of an offence. A UN Protocol against the Smuggling of Migrants by Land, Sea and Air required its signatories to criminalise the facilitation of entry or stay when it was done for direct or indirect, financial or material gain.39 This Protocol has been ratified by most European states with Ireland and Iceland as notable exceptions.40 There is also relevant European Union (EU) law in this area. Article  1(1)(a) of the EU Facilitation Directive requires Member States to adopt appropriate sanctions to punish those who intentionally help someone to enter a Member State irregularly. The Directive states that 34 ibid. 35 Aden Ahmed v Malta App No 55352/12 Judgment of 9 December 2013. 36 Asylum and Immigration (Treatment of Claimants etc) Act 2004, s 35. 37 Aliens Act (581/2005) s 185. 38 Consolidated Immigration Act (Legislative Decree 25 July 1998, n 286) Article 6(3). 39 UN Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the UN Convention against Transnational Organised Crime (adopted 15 November 200, entered into force 28 January 2004) Article 6. 40 ‘Status of ratification of the UN Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the UN Convention against Transnational Organised Crime’ (United Nations Treaty Series Collection 7 September 2021), available at: treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=XVIII-12-b&chapter=18&clang=_en.

20  The Criminalisation of Immigration in Europe Member States may decide not to impose sanctions under Article 1(1)(a) if the aim of the behaviour was to provide humanitarian assistance.41 Article 1(1)(b) requires Member States to impose sanctions on anyone who, for financial gain, helps someone reside irregularly in a Member State. The aim of these measures was, at least in part, to tackle organised crime. This is explicitly the aim of the UN Protocol as it supplements the UN Convention against Transnational Organised Crime and the preamble to the Protocol focuses on the harm that this type of organised crime does to states and to the migrants themselves. For the EU measure, two aims are given: (1) to combat illegal immigration; and (2) to combat networks which exploit human beings,42 this second aim essentially referring to combating organised crime. Unfortunately, these measures may also affect many other people who are not participating in organised crime. The reference to material gain in the UN Protocol was meant to exclude family members and NGOs from punishment.43 Article 1(2) of the Facilitation Directive allows Member States to refrain from punishing those who help someone irregularly enter a Member State if their main aim was to provide humanitarian assistance. Article 1(1)(b) of that Directive explicitly refers to financial gain when discussing the punishment of those who facilitate irregular residence, indicating that Member States may exclude those whose main aim was humanitarian assistance. The problem is that neither the UN Protocol nor the EU Directive requires states to refrain from punishing those who facilitate entry or stay due to humanitarian reasons. This has resulted in diverging standards across Europe as to when the facilitation of entry or stay is a punishable offence. Many European states do not require a financial gain or profit when facilitating irregular entry or stay in order to impose sanctions.44 Some states do have national provisions which prohibit sanctions if the actions were undertaken for humanitarian reasons, usually referring to the facilitation of entry of asylum seekers or where the facilitation was of family members.45 Even when such exceptions exist, informal sanctions may be imposed regardless. For example, in 2013 several NGOs involved in migrants’ rights spoke of the national obstacles facing them including the fact that they were often detained, questioned, pressured and harassed by law enforcement bodies.46 41 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [2002] OJ L328/17, Article 1(2). 42 ibid, Preamble. 43 UNGA, ‘Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions’ (10 November 2002) 55th session, UN Doc A/55/383/Add.1, 16. 44 Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom: European Union Agency for Fundamental Rights, ‘The Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them’ (n 24). 45 European Union Agency for Fundamental Rights, ‘The Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them’ (n 24) 10 (Figure 3 and Figure 4). 46 ‘The protection of migrant rights in Europe’ (Commissioner for Human Rights, Council of Europe, April 2013) Section Three, available at: rm.coe.int/CoERMPublicCommonSearchServices/Display DCTMContent?documentId=09000016806da9ce.

The Intertwining of Criminal Law and Immigration Law   21 The criminalisation of the facilitation of entry and stay has caused controversy and concern in numerous areas across Europe. In Denmark in 2016, for example, a prominent children’s rights campaigner, Lisbeth Zornig Andersen, made headlines when she was prosecuted for human smuggling for helping Syrian refugees who were moving from Germany to Sweden.47 In 2017, Hungary introduced legal provisions that seriously undermined the aid offered to migrants as it criminalised those who undertake activities which facilitate asylum applications including preparing and circulating information on the subject. The offence carries a 3-month prison sentence if there is no financial gain involved and organisations who commit the offence can be dissolved and fined.48 One of the most controversial aspects of the criminalisation of facilitating entry and stay has been the ‘criminalisation of rescue’49 where those who aid migrant boats in distress at sea have faced criminal charges. Although the EU Fundamental Rights Agency has tracked numerous cases against NGO ships across Europe, the problem is particularly prominent in Malta, Greece and especially in Italy.50 Beyond the facilitation of entry and stay some states have criminalised other interactions with migrants by attaching criminal offences or harsh administrative penalties to the provision of certain services to migrants who do not have authorisation to remain. The most popular form of this is the criminalisation of landlords who rent accommodation to such immigrants.51 Some states do allow for exceptions; for example, in France and Malta52 providing accommodation to a close relative will not be punished and in Italy the landlord must have taken unfair advantage of the migrants’ situation when renting the property in order to attract criminal liability.53 The UK Immigration Act 2014 introduced a harsh administrative regime which makes landlords responsible for checking the immigration status of their tenants and allows for the imposition of a significant fine (£3,000) if they do rent accommodation to those in an irregular situation.54 This was further

47 Global Detention Project, ‘Immigration Detention in Denmark: Where officials cheer the deprivation of liberty of “rejected asylum seekers”’ (May 2018) 13, available at: www.globaldetentionproject.org/ immigration-detention-in-denmark-where-officials-celebrate-the-deprivation-of-liberty-of-rejectedasylum-seekers. 48 Global Detention Project, ‘Immigration Detention in Hungry: Transit Zone or Twilight Zone’ (June 2020) 14, available at: www.globaldetentionproject.org/immigration-detention-in-hungarytransit-zone-or-twilight-zone. 49 European Union Agency for Fundamental Rights, ‘Fundamental rights considerations: NGO ships involved in search and rescue in the Mediterranean and criminal investigations’ (October 2018), available at: fra.europa.eu/sites/default/files/fra_uploads/fra-2018-ngos-sar-mediterranean_en.pdf; available at: fra.europa.eu/en/publication/2020/2020-update-ngos-sar-activities. See also, E Cusumano and M Villa, ‘From “Angels” to “Vice Smugglers”: The Criminalization of Sea Rescue NGOs in Italy (2020) 27 European Journal on Criminal Policy and Research 23. 50 European Union Agency for Fundamental Rights, ‘Fundamental rights considerations’ (n 49). 51 European Union Agency for Fundamental Rights, ‘The Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them’ (n 24) 13. 52 Code of Entry and Stay of Aliens and Right of Asylum, Article L. 622-4 (France) and the Immigration Act, Article 32 (Malta). 53 The Immigration Law, Legislative Decree 286/1998 Article 12. 54 Immigration Act 2014, ss 22–23.

22  The Criminalisation of Immigration in Europe expanded in the Immigration Act 2016 to make it a criminal offence for landlords to let to irregular immigrants.55 This kind of legislation, which makes non-immigration organisations or individuals’ part of the state border control force, is becoming more popular. The UK Immigration Act 2014 provides that banks must check the immigration status of their customers before opening an account and requires the Driver and Vehicle Licensing Agency to check someone’s immigration status before issuing them with a driving licence. The Immigration Act 2016 also makes the employment of a migrant without a right to work a criminal offence.56 In 2013, the UK Department of Education even suggested that schools could be held responsible for checking on the immigration status of its pupils,57 though the proposal was later dropped.58 In 2009, Italy passed a security package59 which required money transfer companies to check a customer’s residence permit and identification and to inform the authorities if these could not be produced within 12 hours of the request. The package also required the submission of a residence permit to register for any public services. There are exceptions for health services and obligatory schooling services though this was only after doctors and educators protested their inclusion in the measure and indicated that they would not participate in reporting patients/ students. The security package also authorises ‘citizen’s patrols’ so that ordinary citizens may patrol Italian territory and report crimes to the police (including that of irregular entry and stay). These kinds of measures significantly affect the lives of immigrants. The criminalisation of the letting of accommodation to migrants means that many landlords are unwilling to let to anyone whose immigration status they are unsure of.60 This means that migrants may be more likely to be taken advantage of in terms of rent, put in substandard housing and have no protection from eviction without notice – leading to homelessness.61 By making non-immigration organisations part of border enforcement, the everyday lives of migrants are made much more difficult and filled with fear. Due to the (real or simply perceived) danger of being reported irregular migrants often do not use state medical facilities, send

55 Immigration Act 2016, s 39. 56 ibid, s 35. 57 Shiv Malik and Peter Walker, ‘Minister planning immigration crackdown on education tourists’ Guardian (27 March 2013), available at: www.theguardian.com/politics/2013/mar/27/ministersimmigration-crackdown-education-tourists. 58 Nicholas Watt, ‘David Laws vetoes plan to force schools to check immigration status of pupils’ Guardian (22 May 2013), available at: www.theguardian.com/politics/2013/may/22/ immigrant-status-checks-on-schoolchildren-vetoed. 59 M Merlino, ‘The Italian (In)Security Package’ (Centre for European Policy Studies, 2013). 60 UK Refugee Council, ‘Refugee Council Response to the Home Office Consultation: Tackling Illegal Immigration in Privately Rented Accommodation’ (UK Refugee Council, August 2013) 2, available at: www.refugeecouncil.org.uk/assets/0002/9930/Refugee_Council_response_to_landlords_consultation. pdf. 61 ibid.

The Intertwining of Criminal Law and Immigration Law   23 their children to school or register their births.62 These difficulties are usually the explicit aim of such measures. For example the then UK Home Secretary, Theresa May, stated that the aim of the Immigration Act 2014 was to create a ‘really hostile environment for illegal immigration’.63 This attitude does not acknowledge the real dangers of such an approach which will put many people in situations where they are vulnerable to violence, exploitation and abuse.

C.  Immigration Consequences for Criminal Convictions In addition to immigration activities becoming criminalised, immigration measures have also become a more common consequence of a criminal conviction. Although the maintenance of public security has long been a ground for deportation in many European countries, the use of immigration measures after conviction has become increasingly harsh.64 Since 2000, the United Kingdom,65 Denmark,66 Germany67 and Italy68 have all passed laws making deportation an automatic result of many criminal convictions where the convicted person is a foreign national. In Switzerland, non-citizens who commit serious crimes can be subject to automatic deportation and there have been attempts to extend this to minor crimes.69 Spain unsuccessfully attempted to automatically replace prison sentences given to foreign nationals with deportation.70 Even where deportation is not automatic, imposing severe immigration consequences for committing a criminal offence have become the norm. For example, in 2002 the Netherlands passed a law allowing for the deportation of foreign residents who had been sentenced to one month in prison or community work.71 The rise in immigration consequences for criminal convictions has been accompanied by separate prisons to hold foreign national prisoners in the United 62 European Union Agency for Fundamental Rights, ‘The Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them’ (n 24) 6. 63 James Kirkup and Robert Winnett, ‘Theresa May Interview: we’re going to give illegal migrants a really hostile reception’ Telegraph (25 May 2012), available at: www.telegraph.co.uk/news/ uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-re ally-hostile-reception.html. 64 M Savino, ‘The Right to Stay as a Fundamental Freedom: The Demise of Automatic Expulsion in Europe’ (2006) 7 Transnational Legal Theory 70; L Fekete and F Webber, ‘Foreign Nationals, Enemy Penology and the Criminal Justice System’ (2010) 51 Race & Class 1. 65 UK Borders Act 2007, s 32. 66 Aliens (Consolidation) Act 2013, s 26 (2). 67 German Residence Act 2004, s 53. 68 Law 30 July 2002, no 189 (‘Bossi–Fini’ law), amending the 1998 Immigration Act. 69 ‘Swiss vote for deportation of foreigners who commit serious crimes’ Guardian (28 November 2010), available at: www.theguardian.com/world/2010/nov/28/swiss-vote-deportation-foreignerscrime; John Miller, ‘Swiss to vote on law aimed at expelling convicted foreigners without appeal’ (Reuters, 17 February 2016), available at: www.reuters.com/article/us-swiss-foreigners-idUSKCN0VQ0PG. 70 See Gurguchiani v Spain App No 16012/06 (ECtHR, 15 December 2009) This will be discussed in detail in ch 3. 71 Fekete and Webber (n 64) 9.

24  The Criminalisation of Immigration in Europe Kingdom and Norway. Shortly after the foreign national offender ‘crisis’ in 2006,72 the UK Border Agency and the Ministry of Justice worked together to change the structure of the UK’s prison estate. They created the ‘hub and spokes’ system.73 From then on, non-citizen offenders were to be placed in particular prisons known as hubs and some prisons were supposed to be dedicated ‘foreign national offender only’ prisons.74 These prisons had full-time immigration staff on site. In terms of facilities and services, however, there is evidence that these prisons are considered worse than others. Prison officials have noted that ‘for funding Canterbury [a former FNP only site] is at the bottom of the list’ because ‘NOMS [the National Offenders Management Service] said what they are doing is reducing reoffending. These people aren’t ending up on the stats. Why give them services if they won’t affect the stats?’75 This is because, theoretically, this prison holds people who will not be returning to British society so certain services such as vocational classes and anger management courses are not run. This disparity was noted by several prisoners themselves: It does feel like punishment for being foreign a bit because there are a number of differences in this prison. Once you’re branded a foreign national, it is irrelevant where your family is … Education is not the same.76 There is not the quality of education here, probably because it’s a foreign national prison … I don’t have access to the courses I need for my sentence plan … Enhanced thinking skills, victim awareness, they’re not here.77 We only get gym facilities from other prisoners who have discarded them. They’re making us second rate prisoners.78

This concept of foreign national prisoner only prisons and the perception that they provide a lesser service than typical prisons is not unique to the United Kingdom. As mentioned above, Norway has followed suit and enacted a similar system of foreign national prisoner only prisons and has faced similar accusations of providing a lesser system than that found in other prisons.79 Although only Norway and the United Kingdom have created these separate foreign national offender only prisons, most countries in Europe operate a system of immigration detention which detains a significant number of migrants outside the criminal justice system – this will be discussed in detail below. 72 The scandal concerned the revelation that over 1,000 foreign national offenders had been released from British prisons without being considered for deportation: ‘How the deportation story emerged’ (BBC News, 9 October 2006), available at: BBC NEWS | Politics | How the deportation story emerged. 73 UK Border Agency and Ministry of Justice, ‘Service Level Agreement to Support the Effective and Speedy Removal of Foreign National Prisoners’ (1 May 2009) 20. 74 ibid. 75 E Kaufman, Punish and Expel: Border Control, Nationalism and the New Purpose of Prison (Oxford University Press 2015) 129. 76 ibid, 128. 77 ibid. 78 ibid, 129. 79 T Uglevik and D Damsa, ‘The Pains of Crimmigration Imprisonment: Perspectives from a Norwegian All-Foreign Prison’ (2017) 58 British Journal of Criminology 1025; Pakes and Holt (n 20).

The Use of Criminal Justice Practices in Immigration Control  25

II.  The Use of Criminal Justice Practices in Immigration Control Accompanying the rise in criminal offences for immigration actions there has been a rise in the use of practices which are usually associated with the criminal justice sector being used in the immigration sphere. In this section, three types of practices which have been imported from the criminal justice arena to immigration control will be explored: (1) detention, (2) surveillance and (3) the police-like powers of immigration officers.

A. Detention The detention of immigrants is the most obvious criminal justice practice which has been transposed into the field of immigration control. Until the 1990s the administrative detention of immigrants was not widely used and was considered an exceptional measure. This is no longer the case as can be seen in the huge increase in the state detention estate over the past 15 years.80 For example, in the Netherlands there were 45 immigration detention places in 1980, by 2006 there were 3,310 places.81 In theory, the detention of immigrants is different from detention under the criminal law. This is because immigration detention is generally referred to as administrative detention – that is detention which is not meant to be a punishment. Nevertheless, as will be outlined below and is discussed at length in chapter two, the boundaries between administrative detention and detention under the criminal law are often very blurred. In this subsection, the circumstances under which a migrant may be put in administrative detention, the place where they will be detained and the conditions in that place of detention will be briefly discussed. In her ‘Typology of different types of centres in Europe’,82 Elspeth Guild outlined the four situations in which migrants might be put into administrative detention. The first is detention on arrival where migrants are taken into detention as soon as they arrive on state territory. This often takes places at ‘transit zones’, which are usually airports or ship docks. This type of detention is typically only used for a fairly short period of time. France is particularly keen on this

80 M Welch and L Schuster, ‘Detention of Asylum Seekers in the US, UK, France, Germany and Italy: A Critical View of the Globalizing Culture of Control’ (2005) 5 Criminal Justice 331. 81 D Broeders, ‘Return to Sender? Administrative Detention of Irregular Migrants in Germany and the Netherlands’ (2010) 12 Punishment & Society 169, 176. 82 E Guild, ‘A Typology of Different Types of Centres for Third Country Nationals in Europe’ (European Parliament, 2006), available at: www.europarl.europa.eu/RegData/etudes/note/join/2006/378268/ IPOL-LIBE_NT(2006)378268_EN.pdf.

26  The Criminalisation of Immigration in Europe form of detention, having 67 ‘zones d’attente’ (‘waiting areas’) at ports of entry.83 The second situation is detention as part of the asylum system. This is where an immigrant is detained while their asylum application is being considered. This practice does differ from state to state. In Spain and Luxembourg, asylum seekers are generally not detained except in very specific circumstances.84 In Greece and the United Kingdom, however, it is very easy to detain asylum seekers and practice has shown that this has led to their systematic detention.85 The third situation in which immigrants may be detained is when the immigration officials discover that they have been residing irregularly in the country. Irregular stay is a ground for detention in several European countries such as Belgium,86 Bulgaria,87 Latvia,88 Lithuania89 and Norway.90 In other states, irregular stay on its own is not enough for the detention of an immigrant; the authorities often must also prove that the migrant is a flight risk or a threat to public security.91 Once a person has been caught irregularly staying, however, their detention is often due to them being issued with a deportation order. This is the fourth situation where a migrant may be detained. When a migrant has been ordered to leave the state, the authorities often have the discretion to detain them. This discretion is sometimes fettered and the authorities have to show that the migrant is likely to impede the realisation of the deportation order or to be a threat to public security.92 Discretion is not always fettered however and sometimes a removal order simply needs to be issued in order for the authorities to detain the migrant. Even where discretion is fettered, broad or vague terms can result in extensive detention powers. For example, in Italy a migrant who faces removal may be detained if there is a risk of absconding. The authorities may deem there to be a risk of absconding where the migrant (1) does not have valid passport or equivalent document; (2) does not have documents proving accommodation; (3)  has previously made false declarations with respect to his or her identify; (4) has breached reporting obligations during the voluntary departure period; or (5) has not left during that period or has re-entered despite the ban on re-entry.93

83 Global Detention Project, ‘Immigration Detention in France: Longer, More Widespread and Harder to Contest’ (October 2018), available at: www.globaldetentionproject.org/immigration-detentionfrance. 84 See the relevant country profiles at Global Detention Project. 85 See the relevant country profiles at Global Detention Project. 86 Aliens Act 1980, Article 42/6. 87 Law for Foreigners in the Republic of Bulgaria, Article 41/2. 88 Immigration Law 2002, s 51. 89 The Law on the Legal Status of Foreigners, Articles 112–13. 90 Immigration Act 2008, s 106c. 91 Finland (Aliens Act 2004, s 121); Hungary (Act II of 2007 on the Admission and Rights of Residence of Third Country Nationals, s 54(1)); the Netherlands (Aliens Act 2000, Article  59) and Poland (Aliens Act, Article 102(1)). 92 See, eg, Law 3907/2011, Article 30(1) (Greece). 93 The Immigration Law, Legislative Decree 286/1998 Article 13(4 bis).

The Use of Criminal Justice Practices in Immigration Control  27 In 2017, the ground of repeatedly refusing fingerprinting was added as well.94 This broad definition means that many migrants awaiting removal could be classed as a flight risk, making the restrictions on the power to detain quite limited. Where migrants may be detained also varies from state to state. Most states have dedicated facilities for the administrative detention of immigrants. Ireland is a notable exception to this and continues to detain migrants only in selected prisons although there have been plans to open specialist facilities.95 Until 2011 Luxembourg did not have dedicated immigration detention facilities and detained migrants in prisons, as did Norway until 1998.96 Even if states have dedicated immigration detention centres they may still detain their migrants in prisons or police holding facilities. In Cyprus, most of the immigration detention centres are located in police facilities.97 Furthermore, many of the dedicated immigration detention centres closely resemble prisons or penal institutions. In some states detention centres are located in former prisons or military barracks.98 In many states such as Bulgaria the detention centres have a prison-like appearance with high walls topped with barbed wire and guards using CCTV.99 The personnel employed to work in the detention centres can also contribute to a prison-like environment. For example in 2008, 76 per cent of the personnel in Belgian detention centres were security staff.100 This is not unusual; in many countries (such as Poland, Spain, Malta, Greece, Cyprus, Lithuania, Estonia and Hungary) staff in detention centres are almost entirely security personnel in the form of police officers, guards, border guards, or private security staff.101 In other countries, where

94 Article 17(3) of Law Decree 13/2017. 95 Global Detention Project, ‘Ireland Immigration Detention Profile’ (August 2019), available at: www.globaldetentionproject.org/countries/europe/ireland#country-report. 96 Global Detention Project, ‘Luxembourg Immigration Detention Profile’ (April 2018) Luxembourg Immigration Detention Profile – Global Detention Project | Mapping immigration detention around the world, available at: www.globaldetentionproject.org/countries/europe/luxembourg; and ‘Norway Immigration Detention Profile’ (February 2018) Norway Immigration Detention Profile – Global Detention Project | Mapping immigration detention around the world, available at: www.globaldetentionproject.org/countries/europe/norway. 97 T Hammarberg, ‘Report following his visit to the Republic of Cyprus on 7–10 July 2008. Issues reviewed: Asylum, Detention of Migrants and Trafficking in Human Beings in the Republic of Cyprus’ (Commissioner for Human Rights, Council of Europe, 12 December 2008), available at: www.refworld. org/docid/494225702.html. 98 Global Detention Project, ‘Immigration Detention in Belgium’ (March 2020) GDP – Immigration Detention in Belgium 2020, available at: www.globaldetentionproject.org/wp-content/uploads/2020/03/ GDP-Immigration-Detention-in-Belgium-2020.pdf; ‘Norway Immigration Detention Profile’ (n 96). 99 Global Detention Project, ‘Immigration Detention in Bulgaria: Fewer Migrants and Refugees, More Fences’ (April 2019), available at: www.globaldetentionproject.org/immigration-detentionbulgaria-fewer-migrants-refugees-fences; V Ilareva, ‘Immigration Detention in International Law and Practice: In Search of Solutions to the Challenges Faced in Bulgaria’ (Statewatch, 2007), available at: www.statewatch.org/news/2008/jan/valeria-iIlareva-immigration-detention-bulgaria.pdf. 100 Office des Etrangers, ‘Activity Report 2008’ (Brussels, 2009) 25, available at: dofi.ibz.be/sites/dvzoe/ FR/Documents/2008fr.pdf. 101 ‘The Conditions in Centres for Third Country National (Detention Camps, Open Centres as well as Transit Centres and Transit Zones) with a Particular Focus on Provisions and Facilities for Persons with Special Needs in the 25 EU Member States’ (European Parliament, December 2007) 237.

28  The Criminalisation of Immigration in Europe migrants are detained in prisons, the majority of the personnel present are prison officers. The circumstances described above primarily relate to state detention centres. The situation may be different for asylum seekers who are often kept in separate facilities commonly called reception centres. These centres tend to have fewer movement restrictions and more relaxed regimes and the personnel are usually a more balanced mix of security, administrative and other staff. Despite this, medical staff and staff trained to deal with vulnerable groups are often lacking in these reception centres.102 The conditions in the detention centres again differ from state to state. Until recently, the conditions in most detention centres in Hungary were said to be akin to ‘the maximum severity level of a prison sentence’103 where detainees were only allowed out of their cells to eat and to have one hour of open air exercise. In Slovenia, the detainees are required to wear prison-like uniforms.104 Although over 10 years old, a study for the European Parliament105 conducted in 2007 provides an in-depth look at the severity of conditions of detention that migrants have been exposed to in recent years. In many European states the conditions of detention were described as severe and prison-like. Conditions contributing to this description were confinement to cells for most of the day, a lack of activities and a lack of access to outdoor space. The prison-like regimes were not the most concerning finding of that study. The study found the detention conditions in some countries to be dehumanising, with detainees being kept in dilapidated structures with ‘appalling’ and ‘deplorable’ hygiene standards. For example, in Italy it found that detainees were sometimes kept in large cages or shipping containers. A recent study of detention conditions in Greece in 2017 also found about 300  men being held in shipping containers.106 Of course, detention conditions generally vary from detention centre to detention centre but the level of case law at the ECtHR on detention conditions indicates significant issues in certain countries such as Greece.107 102 ibid. 103 ‘Briefing Paper for the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the Occasion of the CPT’s Periodic Visit to Hungary’ (Hungarian Helsinki Committee, 28 March 2013) 24, available at: helsinki.hu/wp-content/uploads/ HHC_briefing-paper_CPT_periodic_visit_28March2013_FINAL.pdf. 104 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), ‘Report to the Slovenian Government on the Visit to Slovenia Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 28 March to 4 April 2017, CPT/Inf (2017) 27’ (September 2017), available at: rm.coe.int/pdf/168074adf9. 105 ‘The Conditions in Centres for Third Country National (Detention Camps, Open Centres as well as Transit Centres and Transit Zones) with a Particular Focus on Provisions and Facilities for Persons with Special Needs in the 25 EU Member States’ (n 101). 106 HS Bhui, M Bosworth and A Fili, ‘Monitoring Immigration Detention at the Borders of Europe: Report on a pilot project in Greece, Hungary, Turkey and Italy, 2016–2017’ (2018) Working Paper, Oxford Centre for Criminology, available at: www.law.ox.ac.uk/sites/files/oxlaw/project_report_final_ copy.pdf. 107 European Court of Human Rights, ‘Migrants in Detention Factsheet’ (March 2021): FS_Migrants_ detention_ENG (coe.int).

The Use of Criminal Justice Practices in Immigration Control  29 The detention of immigrants is an element of the criminalisation phenomenon in many ways. A person who is put in detention is deprived of their liberty; this is one of the most serious penalties that a state can use against an individual. They are put in detention facilities which are (or are very similar to) prisons even though their detention is supposed to be administrative and not punitive. The conditions in which immigrants are often kept contribute to the idea that they are being punished despite their detention being administrative. Furthermore, by using such a serious sanction the state perpetuates the stereotype of the migrant as an untrustworthy criminal offender or security threat.

B. Surveillance Another criminal justice practice that has been imported into the immigration system is surveillance. The definition of surveillance in the Oxford English Dictionary makes clear its link to the criminal justice system: ‘close observation, especially of a suspected spy or criminal’.108 The focus in political and media discourse of the idea of ‘illegal immigration’ as opposed to other terms such as ‘irregular migration’ has cemented the idea of such border crossing as a matter of criminality as opposed to an administrative or humanitarian issue. This means that the idea of strong borders has become heavily associated with the political law and order agenda.109 This has led to a significant focus on surveillance and sometimes called ‘militarization’ of the border.110 Many of the most prominent developments in this area in Europe have come from the EU. The EU has created a ‘plethora of systems’111 regarding border control so several different systems will be discussed below. EURODAC is a fingerprint database and stands for European Dactyloscopy. It is used by all the EU countries as well as the United Kingdom, Iceland, Norway, Liechtenstein and Switzerland. EURODAC was initially a project centred on asylum seekers112 but has since been extended to all irregular crossings. It requires each state to take the fingerprints of every person over the age of 14 who either makes an application for asylum or is an alien who has been apprehended ‘in connection with the irregular crossing by land, sea or air’.113 This data is then transmitted to the Central Unit database which stores the information for 10 years. The initial

108 ‘Surveillance’ (Oxford English Dictionary): en.oxforddictionaries.com/definition/english/ surveillance. 109 K Franko, Globalization and Crime, 3rd edn (Sage 2020) 83–85. 110 P Andreas, Border Games: Policing the US–Mexico Divide (Cornell University Press 2000) 132. 111 Aas (n 5) 334. 112 J Aus, ‘Eurodac: A Solution Looking for a Problem’ (2006) 10 European Integration Online Papers 1, 16. 113 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1, Article 8.

30  The Criminalisation of Immigration in Europe purpose of this database was to aid the operation of the common asylum system which generally required the state of first entry to deal with the asylum application. Thus, by using EURODAC, a state could see whether the asylum applicant had already entered another Member State and send him back there for his asylum application. Controversially, however, the EURODAC system may now be accessed by Europol (European Police Office) and national law enforcement agencies. Two conditions must be fulfilled before either can access the database. First, it must be for ‘the prevention, detection or investigation of terrorist offences or other serious criminal offences’; it must be necessary in that specific case and there must be reasonable grounds to consider that access will ‘substantially contribute to the prevention, detection or investigation of any of the criminal offences in question’.114 Second, those seeking access must have unsuccessfully tried other sources of information. There must be no match for the fingerprint they are seeking to compare in the national database, other Member State databases and the Visa Information System database. The Visa Information System (VIS) is another EU database which contains the biometric information on all third-country nationals who apply for a visa in the Schengen area. The Schengen area is made up of several European states (mainly from the EU) that have abolished passport and border controls at common borders. The main purpose of the VIS is to verify the authenticity of the visa on entry. The biometric information taken includes fingerprints and a facial image which are then stored in a central European database for five years. The national law enforcement bodies and Europol have access to this database too.115 Likewise the Schengen Information System (SIS, now SIS II) is a database which allows the exchange of information between the police, border control, the judicial authorities and customs and visa authorities. By the end of 2017, SIS held approximately 76.5 million records; as of the end of 2018 it had been accessed 6.1 billion times.116 In 2018, SIS gained new functions (becoming SIS II) including biometrics and launched the Automated Fingerprint Identification System as well as face identification and DNA profile technology.117

114 Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice [2013] OJ L180/1, Article 20. 115 Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences [2008] OJ L218/129. 116 European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice ‘SIS II’ (EU-LISA, 2021), available at: eu-LISA – SIS II (europa.eu). 117 ibid.

The Use of Criminal Justice Practices in Immigration Control  31 Eurosur is an EU surveillance system which uses drones, sensors and satellites to track irregular immigration.118 Its purpose is to monitor the EU’s external borders with the aim of reducing cross-border crime, preventing undetected migration and ostensibly aiding those in distress (ie, migrant boats in distress). These borders include all external land and sea borders and air borders. Data collected by Eurosur is collated at national level in a National Coordination Centre. Each Centre (ie, each country) has the right to decide which information to share and with whom and when. The use of drones, typically a military weapon, makes a connection between immigration and risks to national security. The use of fingerprint and other surveillance technology in immigration control in and of itself has connotations with the criminal law, but when national and international enforcement bodies are given access to the data this compounds the idea that immigrants may be criminal offenders. This is made explicit by the discourse surrounding the justification for such technology. The European Commissioner for Justice, Freedom and Security, Franco Frattini, was quoted as justifying biometric border controls by saying: ‘We don’t have an alternative. It’s because of terrorist threats, criminality, paedophile networks. We cannot have them using better technology than police’.119 The use of electronic tagging in some European countries adds to the continued surveillance and collection of data on immigrants. An electronic monitoring device may be attached to the immigrant’s ankle or wrist. Its purpose is to track the whereabouts of the migrant and to prevent absconding. This ‘alternative’ to detention also represents a restriction on movement as the tag is used to ensure the migrant stays within a specific area or place. The use of electronic tagging in the immigration arena has been adopted by a few European states: the United Kingdom, Portugal, Denmark and France.120 The United Kingdom has recently extended this power to GPS trackers on foreign national offenders subject to a deportation order. These trackers can trace the entire movement of a person, as opposed to simply alerting the authorities if they leave a designated area, and the UK government has approved the use of this data for reasons unrelated to bail such as checking the veracity of ECHR Article  8 claims.121 This form of surveillance generally is not commonly used with states preferring detention in most cases. From the data available, the United Kingdom seems to be the most prolific user of it: in the period starting 1 January 2011 and ending 16 October 2011, the United Kingdom imposed electronic tagging on 50 persons whereas it was not imposed 118 ‘Eurosur’ (Frontex, 2017): frontex.europa.eu/intelligence/eurosur. 119 Renata Goldirova, ‘EU Unveils Plans for Biometric Border Controls’ (EUobserver, 13 February 2008), available at: euobserver.com/22/25650. 120 European Union Agency for Fundamental Rights, ‘Annual Report 2011’ (June 2012) 50, available at: file://stafs-nhr-02.ccad.canterbury.ac.uk/as1051/Downloads/2211-FRA-2012_AnnualReport-2011_EN%20(1).pdf. 121 Mathilda Mallinson, ‘Home Office Condemned for Forcing Migrants on Bail to Wear GPS Tags’ Guardian (14 June 2021), available at: www.theguardian.com/global-development/2021/jun/14/ home-office-condemned-for-forcing-migrants-on-bail-to-wear-gps-tags.

32  The Criminalisation of Immigration in Europe on anyone by France, Portugal or Denmark during that period.122 Nevertheless by condoning its use for immigrants, states link them to the criminal justice system.

C.  Powers Given to Immigration Officers Several criminal justice practices which have been brought into the immigration sphere fall under the police-like powers which have been granted to immigration officers. In the United Kingdom, for example, since the late 1990s an increasing number of police-like powers have been given to immigration officers. These powers include arrest with or without a warrant,123 search and arrest with or without a warrant,124 the power to enter business premises to make arrests,125 to enter and search premises,126 to search personnel records with or without a warrant,127 to search arrested persons and those in police custody,128 to seize and to retain material,129 to detain people,130 to search detained persons131 and retain evidence and to fingerprint people.132 The use of force by immigration officers has been condoned in legislation when carrying out a detention, a search and arrest of premises and when taking fingerprints.133 Despite the fact that these powers mirror those given to the police, the relevant statutory framework governing the code of practice for the proper exercise of such powers was not legally applicable to immigration officers until 2013134 – almost 15 years since most of the powers were first granted. This is an excellent illustration of a key theme in this book – the ‘asymmetric’ use of the criminal law without any of the criminal law procedural guarantees.135 Giving police-related powers to immigration officials contributes to 122 ibid. 123 Immigration Act 1971, ss 28AA and 28A respectively (as introduced by the Immigration and Asylum Act 1999 and amended by the Nationality, Immigration and Asylum Act 2002). 124 Immigration Act 1971, ss 28C and 28B respectively (as introduced by the Immigration and Asylum Act 1999 and amended by the Nationality, Immigration and Asylum Act 2002). 125 Immigration Act 1971, s 28CA (as introduced by the Nationality, Immigration and Asylum Act 2002). 126 Immigration Act 1971, ss 28D, 28E and 28F (as introduced by the Immigration and Asylum Act 1999 and amended by the Nationality, Immigration and Asylum Act 2002). 127 Immigration Act 1971, ss 28FB and 28FA respectively (as introduced by the Immigration and Asylum Act 1999 and Nationality, Immigration and Asylum Act 2002). 128 ss 28G and 28H, Immigration Act 1971 (as introduced by the Immigration and Asylum Act 1999). 129 Immigration Act 1971, s 28(I) (as introduced by the Immigration and Asylum Act 1999). 130 The Immigration Act 1971, sch 2 para 16 (as amended by the Immigration and Asylum Act 1999, Nationality, Immigration and Asylum Act 2002, and the Immigration, Asylum and Nationality Act 2006); Nationality, Immigration and Asylum Act 2002, s 62; UK Borders Act 2007, s 2. 131 UK Borders Act 2007, s 2. 132 Immigration and Asylum Act 1999, s 141 (as amended by the Nationality, Immigration and Asylum Act 2002, Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and the Immigration, Asylum and Nationality Act 2006). 133 Immigration and Asylum Act 1999, s 146 (as amended by the Nationality, Immigration and Asylum Act 2002); UK Borders Act 2007, s 2(4). 134 Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013/1542. 135 Legomsky (n 16).

The Media Discourse Surrounding Immigration  33 the criminalisation of migrants because it implies that migrants are untrustworthy and dangerous and that the public needs to be protected from them. The condoning of the use of force is especially symbolic in reiterating the idea that migrants are dangerous.

III.  The Media Discourse Surrounding Immigration The discourse surrounding immigration has much in common with the discourse surrounding crime and criminal justice. Although there are different focuses in different states, the way in which the European media portrays immigrants provides clear links to the criminal justice system.136 This can be seen in the language and images used and the way in which narratives are constructed. This is problematic because it represents the construction and/or product of migrants as threats to society. This can help shape the public’s view on immigration and justify the application of criminal law or criminal justice-style practices or alternatively it can be a reflection of and reinforce these processes.137

A.  The Immigration Narrative The way in which the media constructs the narrative of immigration stories is very important as it affects how the public perceives the stories. Marcello Maneri noted that, in Italy, immigration is usually covered by the ‘crime reporter’.138 This has the effect of severely limiting the way in which immigration is framed. Immigration news in Italy overwhelming fits into three themes: (1) invasion, which discusses arrivals and expulsions; (2) Islamic terrorism, which discusses bomb scares, investigations and trials; and (3) security, which discusses criminal activity and public order. This trend has been noted to exist across Europe with media stories on immigration generally being framed in a negative light, most usually associated with crime or security.139 This trend is perpetuated by the absence of migrant voices in the media to counteract it. A 2014 UK study found that migrants are given the opportunity to comment on a news story in just 12 per cent of coverage.140 On stories concerning asylum, asylum seekers or refugees are almost never asked to comment and, if they are, the reports tend to neglect to mention the 136 J-M Eberl et al, ‘The European media discourse on immigration and its effects: A literature review’ (2018) 42(3) Annals of the International Communication Association 207. 137 ibid. 138 M Maneri, ‘Media Discourse on Immigration: Control Practices and the Language We Live’ in S Palidda (ed), Racial Criminalization of Migrants in the 21st Century (Ashgate 2011) 79. 139 J Berkhout, ‘Changing Claims and Changing frames in the Politics of Migration in Western Europe, 1995–2009’ (2012) SOM Working Paper No 2012-09, available at: papers.ssrn.com/sol3/ papers.cfm?abstract_id=2168713; Eberl et al (n 136). 140 D Nelson (ed), ‘Migration and the Media’ (Migrant Voice, 2014) 20.

34  The Criminalisation of Immigration in Europe migrant’s story and why they left their home country.141 This contributes to an ‘us’ and ‘them’ style narrative where ‘they’ are committing crimes against ‘us’. Even when migrants are spoken to, this ‘us’ and ‘them’ frame continues to apply. For example, a study of migrant interviews in the Netherlands found that, when migrants were spoken to, they were not asked about their problems or difficulties but rather how their situation affected ‘us’ – the Dutch.142 In other words, migrants are seen as ‘objects’ to be talked about, not ‘subjects’ whose views should be sought.143 This contributes to the public perception of a migrant as a criminal ‘other’.

B. Language The language used by the media when discussing immigration compounds this idea of criminality. First, both the media and politicians tend to use the term ‘illegal immigrant/immigration’ when discussing immigration. This presents immigration as a problem associated with crime.144 Other phrases used by the UK media when discussing immigrants also hint at deception and criminality – for example ‘asylum cheat’, ‘bogus asylum seeker’, ‘fake asylum seeker’.145 This is a problem in other countries as well, for example in France media discourse on migrants focuses on the ‘banlieues’ which is a byword for lawlessness and criminality,146 and in Italy ‘clandestino’ is used which denotes not only illegality but squatting and deviance as well.147 These labels are not the only ‘criminalisation’ language used by the media; the actions of immigrants are also described in a criminalised and threatening manner. For example, war-like language is frequently used when discussing the arrival of migrants – terms like an ‘invasion’ of migrants are used or the country is described as ‘besieged’ by migrants.148 When immigrants do actually commit crimes, the media usually takes the opportunity to point out that 141 T Wengraf (ed), ‘What’s the Story? Results from Research into Media Coverage of Refugees and Asylum Seekers in the UK’ (Article 19, 2003). 142 European Union Agency for Fundamental Rights, ‘Racism and Cultural Diversity in the Mass Media’ (February 2002) 41, available at: fra.europa.eu/en/publication/2002/racism-and-culturaldiversity-mass-media. 143 J Trebbe and P Schoenhagen, ‘Ethnic Minorities in the Mass Media: How Migrants Perceive Their Representation in Swiss Public Television’ (2011) 12 Journal of International Migration and Integration 411, 421. 144 B Anderson, Us and Them: The Dangerous Politics of Immigration Control (Oxford University Press 2015) 117; Eberl et al (n 136); J Brouwer, M van der Woude and J van der Leun, ‘Framing migration and the process of crimmigration: A systematic analysis of the media representation of unauthorized immigrants in the Netherlands’ (2017) 14 European Journal of Criminology 100, 110. 145 Wengraf (ed) (n 141) 15. 146 European Union Agency for Fundamental Rights, ‘Racism and Cultural Diversity in the Mass Media’ (n 142) 50. 147 Maneri (n 138) 91. 148 ibid, 92.

The Media Discourse Surrounding Immigration  35 they are immigrants. This is done by mentioning their nationality or at least their ‘foreignness’ in the article and usually in the headline.149 There is also evidence that immigration crimes are reported in a more sensational and brutal way than domestic crimes and that the motives of ‘foreign’ criminals are rarely discussed.150

C. Imagery The imagery used by the media when discussing immigration also contributes to the criminalisation phenomenon. The image most often used by the media is that of a threatening young male. Women and children are rarely seen.151 Asylum seekers and refugees are most commonly depicted in the media as shabbily dressed men in transit, climbing over fences, fighting with police or running in large numbers. Images of men with families or in ordinary domestic situations are not used.152 Thus, the dominant image is of threatening-looking men trying to ‘break in’ to the country. This ‘criminal-like’ imagery is sometimes used by the media to accompany immigration stories to which it has little or no relevance.153 For ­example, a study found that the Daily Express inappropriately used a photo of police wrestling men to the ground next to an immigration article. The image was twice the size of the article and the incident photographed was barely referred to in the article. Likewise, the study found that the Metro ran images of men running in large groups trying to illicitly board trains alongside an article on domestic UK immigration policy. It was also common for the images to be of individual men with their faces covered.154 In one example an Iraqi refugee was shown leaving a church, using his coat to hide his face and with two policemen at his side. This image is reminiscent of media footage surrounding high-profile legal cases. This problem may be perpetuated by the refusal of immigrants to be photographed. Asylum seekers and refugees may be scared of endangering the lives of friends or family back home and immigrants who are not asylum seekers or refugees would obviously be scared of being tracked down by the border authorities. Many immigrants, however, stated that they were unwilling to be photographed due to the unpredictable reaction of their neighbours – they were scared not only of people ‘thinking less’ of them but also of harassment and physical attack.155 This results in a vicious cycle where the media continues to 149 ibid, 80. 150 European Union Agency for Fundamental Rights, ‘Racism and Cultural Diversity in the Mass Media’ (n 142) 43. 151 Wengraf (ed) (n 141) 9. 152 ibid, 22. 153 ibid, 25. 154 ibid, 24. 155 ibid, 28.

36  The Criminalisation of Immigration in Europe use imagery which contributes to the criminalisation of immigration which will continue to feed public hostility towards migrants and make them more unwilling to be photographed.

IV.  Moving Beyond Criminalisation There has been much academic debate on the growing use of the criminal law to combat undesirable behaviour.156 This practice goes against the principle that the criminal law should only be used when absolutely necessary. The criminal law carries with it a serious stigma and censure function and it legitimises the state’s authority and ability to punish the person.157 Criminalising behaviour thus sends the message that the behaviour was not just undesirable but that it was so bad that the criminal law must become involved.158 This means that the criminalisation of a behaviour should be accompanied by a stringent set of procedural safeguards, to limit the potential for abuse or unfair treatment. It is evident from the discussion above that much of immigration law has become criminalised and that criminal justice practices have been incorporated into the immigration system. There is a need, however, to look beyond the criminalisation phenomenon to appreciate the reality of the situation that immigrants are in. This book will demonstrate that these ‘criminalisation’ developments have not been accompanied by the relevant procedural safeguards. This is because of the way the ECtHR has interpreted the human rights of immigrants. Theresa Miller has noted the problems with the focus on the ‘criminalisation’ of immigration in the United States. She notes that this term does not reflect the way that criminal law and immigration law are both affected. Immigration law is equally influencing and changing the function of the criminal law: ‘the “criminalization” of immigration law fails to capture the dynamic process by which both systems converge at points to create a new system of social control that draws from both immigration and criminal justice, but it is purely neither’.159 In this book, however, the focus of concern is the failure of the immigration system to fully incorporate the criminal justice system’s procedural protections. The problem for immigrants may be then conceptualised as a problem of ‘undercriminalisation’.160 Andrew Ashworth and Lucia Zedner offer a clear definition of this practice: [U]ndercriminalisation can be said to occur when the state sets out to provide for the exercise of police power against citizens in alternative (non-criminal) channels which 156 A Ashworth, ‘Is Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225; D Husak, Overcriminalization: The Limits of the Criminal Law (Oxford University Press 2008); D Baker, The Right Not to be Criminalised: Demarcating Criminal Law’s Authority (Ashgate 2011). 157 AP Simester and A Von Hirsch, Crime, Harms and Wrongs (Hart Publishing 2011). 158 J Herring, Criminal Law: Text, Cases and Materials, 6th edn (Oxford University Press 2014) 10. 159 T Miller (n 9) 616. 160 G Campesi, ‘Genealogies of Immigration Detention: Migration Control and the Shifting Boundaries Between the Penal and Preventative State’ (2020) 29 Social & Legal Studies 527;

Moving Beyond Criminalisation  37 are subject only to lesser protections inadequate to constraining an exercise of power of the nature and magnitude involved … undercriminalisation occurs where the failure to designate a preventative measure as criminal deprives the citizen of what is due to her, in view of the substance of the restrictions on liberty and possible sanctions involved in the ostensibly preventative measure.161

Although they refer to ‘citizens’ and the discussion here focuses on non-citizens, the process is the same. Undercriminalisation allows the state to engage in practices associated with the criminal law without the concurrent safeguards. It is also possible that this is not simply ‘undercriminalisation’ but the beginnings of a separate criminal law and justice system for immigrants akin to the idea of ‘Feindstrafrecht’ (‘enemy penology’ or ‘criminal law for enemies’) as developed by German law professor Gunther Jakobs.162 Jakobs advocates for a separate criminal law for certain categories of people and will be discussed in more depth in chapter six. This book will demonstrate that the continued availability of the alternative immigration system allows states to impart all the populist condemnation and stigma of the criminal law but without the need to offer significant procedural protection. If immigrants where truly being criminalised, they might, in a perverse way, actually be better off as they would benefit from more safeguards against state power. The concept of criminalisation also does not encompass some of the other ways in which immigrants’ rights are undermined outside the criminal sphere, such as by the general denial of the right to a fair trial for immigration decisions. The criminalisation phenomenon may increase the harshness with which immigrants are dealt with generally and thus exacerbate these existing issues, but the root problem is not necessarily related to the criminalisation phenomenon. The result is that the criminalisation phenomenon is acting in tandem with the generally lower protection of human rights given to immigrants to create a two-tier system of both human rights and criminal justice.163 This suggests that the treatment of immigrants goes beyond mere criminalisation. What has led the ECtHR M Bosworth, ‘Immigration Detention, Punishment and the Transformation of Justice’ (2019) 28 Social & Legal Studies 81; C Bacon, ‘The Evolution of Immigration Detention in the UK: The Involvement of Private Prison Companies’ (2005) University of Oxford Working Paper 27, available at: www.rsc. ox.ac.uk/files/files-1/wp27-evolution-immigration-detention-uk-2005.pdf; M Bosworth and M Guild, ‘Governing Through Migration Control: Security and Citizenship in Britain’ (2008) 48 British Journal of Criminology 703; A van Kalmthout, F Hofstee-van der Meulen and F Dunkel (eds), Foreigners in European Prisons (Wolf Legal Publishers 2009); M Bosworth, ‘Human rights and immigration detention in the UK’ in M-B Dembour and Tobias Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011). 161 A Ashworth and L Zedner, ‘Preventative Orders: A Problem of Undercriminalisation’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford University Press 2010). 162 G Jakobs, ‘Kriminalisierung im Vorfeld einer Rechtsgutsverletzung’ (1985) 97 Zeitschrift für die Gesamte Strafrechtswissenschaft 751; G Jakobs, ‘“Bürgerstrafrecht und Feindstrafrecht”, Höchstrichterliche Rechtsprechung Strafrecht’ (2004) 5 Onlinezeitschrift für Höchstrichterliche Rechtsprechung zum Strafrecht 88. See S Krasmann, ‘The Enemy on the Border’ (2007) 9 Punishment & Society 301 or Fekete and Webber (n 64) for a discussion of Jakobs’ theory in English. 163 This idea of a two-tier human rights system is discussed in detail in ch 6.

38  The Criminalisation of Immigration in Europe to endorse this treatment of immigrants and what some of the consequences may be will be considered in depth in chapter six.

V. Conclusion This chapter has given a brief overview of the criminalisation of immigrants in Europe. This trend can be seen in three different spheres: (1) the intertwining of the criminal law and immigration law; (2) the use of criminal justice practices in immigration control; and (3) the media discourse surrounding immigration. The intertwining of the criminal law with immigration law has resulted in a rise in legislation which makes immigration actions constitute criminal offences and the use of harsh, criminal law-like sanctions for immigration offences. These apply not only to immigrants, but to those who engage with immigrants such as landlords. The use of criminal justice practices in the immigration arena is represented most prominently by the increased reliance on immigration detention. Though this detention is not supposed to be a ‘punishment’, the places and conditions of detention are often prison-like or worse. There has also been an increased use of surveillance techniques typically associated with the criminal law and the granting of police-like powers to immigration officials. Finally, the media discourse surrounding immigration contributes to the criminalisation phenomenon by using language and imagery which has connotations with criminals and by constructing a narrative which contributes to an ‘us’ and ‘them’ style of thinking. All these factors contribute to the ‘criminalisation’ of immigration. This is problematic as the use of criminal justice law, language and practices is generally associated with a person or group who is morally deviant and a threat to society. The criminalisation of migration thus results in a ‘demonisation’ of migrants in Europe but it is not the full picture of the treatment of immigrants in Europe. It is important to recognise that the situation has moved beyond merely criminalising migrants and into something else entirely. The rest of this books seeks to make that case.

2 The Right to Liberty This chapter will focus on deprivations of liberty. The chapter will begin with a brief outline of how immigration detention is being used across Europe and an overview of the right to liberty as protected in Article 5 of the European Convention on Human Rights (ECHR). It will then move on to contrast Article 5’s high standard of protection from incarceration for those in the domestic criminal justice system with its fairly minimal protection against immigration detention. This comparison is made for several reasons. First, because the test for pre-trial detention in the criminal justice system is representative of the usual high level of protection that the European Court of Human Rights (ECtHR) imposes on deprivations of liberty in other areas. Second, because pre-trial detention and immigration detention exist ostensibly to serve the same goals: to prevent absconding and for necessary public protection. Third, the test used for checking the compatibility of post-conviction detention will be considered because it, like immigration detention, is an exception to the strict approach normally used by the Court and is the blueprint for the test used for immigration detention. Finally, the legitimacy of this approach by the Court will be examined through a discussion of the similar aims of pre-trial detention and immigration detention, the extra protections afforded to post-conviction detainees and the fact that the ECtHR seems out of step with other international human rights bodies on this point.

I.  The Use of Immigration Detention Although the power to detain migrants has a long history, the recent rapid expansion in the use of this power across Europe has been well documented. Though clear statistics are hard to come by, there is a general consensus that the detention of immigrants across Europe has significantly increased in the last decade1 and 1 M Welch and L Schuster, ‘Detention of Asylum Seekers in the US, UK, France, Germany and Italy: A Critical View of the Globalizing Culture of Control’ (2005) 5 Criminal Justice 331; J Banks, ‘The Criminalisation of Asylum Seekers and Asylum Policy’ (2008) 43 Prison Service Journal 175; A Leerkes and D Broeders, ‘A Case of Mixed Motives? Formal and informal Functions of Administrative Detention’ (2010) 50 British Journal of Criminology 830; E Guild, ‘The Criminalisation of Migration in Europe: Human Rights Implications’ (Commissioner for Human Rights, Council of Europe, 4 February 2010); M Bosworth, ‘Human rights and immigration detention in the UK’ in M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants

40  The Right to Liberty the European Commission has previously estimated that almost 600,000 immigration detentions are carried out across Europe each year.2 The NGO Migreurop tracks the number of encampments used to detain immigrants across Europe. An ‘encampment’ is a closed centre surrounded by walls and with surveillance devices which detainees may not leave without some form of escort. They estimate that, between 2000 and 2012, almost one hundred encampments were built across Europe, often with larger capacity than older encampments.3 Thus, the criminalisation of immigration has resulted in the proliferation of the use of immigration detention.4 To take the United Kingdom (UK) as an example, in 1993 the UK immigration detention estate had a capacity of 250 places, by 2005 that capacity had increased to 2,644 places5 and the current detention estate has over 3,000 places.6 There has also been a significant increase in the number of migrants held in prisons under immigration detention powers with over 1,000 people held in prisons in 2018.7 In 2018 24,748 people (including children) entered immigration detention in the United Kingdom8 and these people can be held indefinitely, with many migrants being held for over six months and some cases where migrants have been held for over two years.9 Immigration detention involves important human rights considerations as it entails a loss of liberty. A loss of liberty is a significant disruption of the detainee’s ordinary life. It removes the detainee from society and, in doing so, deprives him of intimate contact with loved ones and prevents participation in life events such as marriages or children’s milestones.10 It also prevents or restricts many of the basic day-to-day activities that make up ordinary life such as going shopping, cooking and going out with friends.11 Thus, detainees lose a large degree of autonomy and

in Europe and the United States (Routledge 2011); S Palidda (ed), Racial Criminalization of Migrants in the 21st Century (Ashgate 2011). 2 Commission, ‘Communication on Migration’ COM(2011) 248 final, 24. 3 ‘Mapping of Migrant Camps’ (Migreurop, 23 November 2013), available at: en.closethecamps. org/2013/11/23/migreurops-encampment-map. 4 Guild (n 1). 5 C Bacon, ‘The Evolution of Immigration Detention in the UK: The Involvement of Private Prison Companies’ (2005) University of Oxford Working Paper 27, 2, available at: www.rsc.ox.ac.uk/files/ files-1/wp27-evolution-immigration-detention-uk-2005.pdf; B Taylor, A Girvan and L Matthews, A History of Immigration Detention in the UK 1914–2018 (Right to Remain, 2018), available at: righttoremain.org.uk/wp-content/uploads/2018/09/DetentionHistory.pdf. 6 S Shaw, Review Into the Welfare in Detention of Vulnerable Persons: A Report to the Home Office (Cm 9186, 2016) 7. 7 S Silverman and M Griffiths, ‘Immigration Detention in the UK’ (Migration Observatory, 29  May 2019), available at: migrationobservatory.ox.ac.uk/resources/briefings/immigration-detentionin-the-uk/. 8 ibid. 9 T McGuiness and M Gower, Immigration Detention in the UK: An Overview, House of Commons Library Research Briefing, CBP-7294 (12 September 2018) 30, available at: researchbriefings.parliament. uk/ResearchBriefing/Summary/CBP-7294#fullreport. 10 D Drake, Prisons, Punishment and the Pursuit of Security (Palgrave Macmillan 2010) 86. 11 ibid.

The Use of Immigration Detention  41 control over their own lives. In the United Kingdom, it is estimated that at least 100 people a year are unlawfully detained in immigration removal centres12 and the Home Affairs Committee recently condemned the Home Office’s approach to immigration detention stating it was ‘appalled’ by the ‘shockingly cavalier attitude to the deprivation of liberty and the protection of people’s basic rights’.13 As briefly discussed in chapter one the conditions in these centres are often on a par with, if not worse than, prisons.14 The detention of immigrants is an element of the criminalisation phenomenon in many ways. Immigration detention has been widely compared to detention in prison by criminologists and is considered to have punitive elements. Although the definition of punishment is still being widely debated,15 literature in this area has taken a variety of approaches with scholars typically focusing on the conditions of detention including the violent physical and psychological effects on detainees, the use of immigration detention and the goals it is used to achieve, both officially and unofficially, and the similarity of immigration detention to more historical forms of punishment such as poor houses. These will each be discussed briefly in turn below. When considering the conditions of immigration detention, scholars often refer to their prison-like environment as mentioned in chapter one.16 Studies have also focused on the lived experience of detention with detainees frequently experiencing immigration detention as punishment.17 In the United Kingdom, detainees who have experienced both prison and Immigration Removal Centres (IRCs) report their overall experience in IRCs to be worse than prison.18 In prison, the detainees generally felt that they were doing time for a crime for which they were convicted, which is an expected outcome of committing an offence. In immigration detention, however, they could not understand why they were being detained if not to punish them again, which seemed unfair.19 The fact that immigration detention may be indefinite in the United Kingdom also compares unfavourably with prison, as the detainees had no release date and so lived with constant uncertainty.20

12 Chapter 3, ‘The Decision to Detain’ in House of Commons Home Affairs Committee, Immigration Detention (HC 913, 2017–19) para 64. 13 ibid, para 65. 14 M Bosworth, Inside Immigration Detention (Oxford University Press 2014); I Hasselburg, ‘Coerced to Leave: Punishment and the Surveillance of Foreign National Prisoners in the UK’ (2014) 12 Surveillance & Security 471. 15 See L Zedner, ‘Penal Subversions: When is a Punishment Not Punishment, Who Decides and On What Grounds?’ (2015) 20 Theoretical Criminology 1. 16 M Bosworth ‘Border Criminologies: Assessing the Changing Architecture of Crime and Punishment’ (2016) Global Detention Project Working Paper 10, 5. 17 ibid. 18 Hasselburg (n 14). 19 ibid, 478. 20 S Turnbull, ‘Stuck in the Middle: Waiting and Uncertainty in Immigration Detention’ (2016) 25 Time & Society 61.

42  The Right to Liberty Studies have also found links between the use of immigration detention and goals traditionally associated with the punishment, such as retribution and deterrence. For example, official descriptions of immigration detention have presented those detained as deviants. In 2011, the UK Border Agency described immigration detention centres on their website as follows: Our removal centres are used for temporary detention in situations where people have no legal right to be in the UK but have refused to leave voluntarily. Those detained in any of our centres can leave at any time to return to their home country. Some detainees are foreign national prisoners who have completed prison terms for serious crimes but who then refuse to comply with the law by leaving the UK. If returnees refuse to comply with the law and leave the UK, we will move to enforce their return.21

The language here focuses on detainees refusing to comply with the law and specifically mentions that some have been convicted of crimes, implying a justification of ‘just deserts’. This fails to mention that those whose cases are still being decided, including asylum seekers, may be held in the centres, meaning that some do have a legal right to be in the United Kingdom.22 Nor does it mention that they may be complying with the authorities but, due to bureaucratic problems in either the UK immigration service or their home state, they have not yet been returned.23 Justifying detention on the grounds that the person will not comply with the law is very similar to justifying imprisonment following criminal conviction.24 This retributive attitude is reflected in some immigration practices. Leanne Weber’s study of immigration officers in the United Kingdom in 2000 shows that retributive elements come into the decision to detain.25 Mary Bosworth’s studies on immigration detention in the United Kingdom found that immigration detainees in IRCs often try to distinguish themselves from criminals in order to show their morality, indicating that they feel they are being punished for a moral failing or are not receiving their ‘just deserts’. They lay claim to ‘acts of citizenship’ such as ‘a hard worker, mother, or tax-payer – unrecognizable in law, but grounded in familiar moral hierarchies’.26 Staff at IRCs also felt confused about the detainee’s situation and regularly referred to criminals as a moral comparison to justify compassion or sympathy towards detainees.27 One member of staff differentiated between foreign national prisoners and other detainees. Foreign national prisoners were seen as ‘rapists, 21 Hasselburg (n 14) 474 (original emphasis). 22 ibid. 23 ibid. 24 ibid. 25 L Weber and L Gelsthorpe, ‘Deciding to Detain: How Decisions to Detain Asylum Seekers Are Made at Ports of Entry’ (2000) Criminal Justice, Borders and Citizen SSRN Paper Series 62, available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=2520382andrec=1andsrcabs=416364andalg=7and pos=2. 26 Bosworth, Inside Immigration Detention (n 14) 88. 27 ibid, 97–107.

The Use of Immigration Detention  43 kiddie fiddlers, and murderers’, whereas other detainees who had ‘just forgotten to update their visa or whatever’ were less morally contemptible.28 Likewise staff at Colnbrook IRC spoke warmly of an individual who was ‘personable and remorseful’ and ‘considered him as an exception to the rest, deserving of their compassion’.29 Weber also found some reluctance on the part of some immigration staff in deciding whether to detain where they felt that the person did not morally deserve it.30 Thus, elements of retribution are evident in practices of both the government and ground immigration staff. Weber also found that deterrence was a factor in her study on the decision of Home Office officials to detain an individual. Some officials detained with the goal of ‘specific deterrence’ – in order to get the specific asylum seeker to withdraw their claim.31 Specific deterrence occurs when the immigration officer has discretion in the decision to detain but there are also instances where a more general deterrent is the goal of immigration detention. This is where detention is used to deter either a specific category of irregular immigrants (eg, those of a certain nationality) or irregular immigrants generally from coming and filing a claim. General deterrence practices normally come from ‘above’ and curtail the individual officer’s discretion.32 Another way in which the punitive elements of immigration detention have been explored is through comparison with historical forms of punishment. Immigration detention has been compared to poor houses in that it may be a last resort alternative to destitution. The historical poor houses were meant to manage the external effects of pauperism and to provide a relief to those facing destitution. A study by Arjen Leerkes and Dennis Broeders noted that irregular migrants in the Netherlands were excluded from most forms of welfare assistance and so had to fall back on informal arrangements when facing homelessness etc.33 This led to a rise in petty crime – or ‘subsistence crime’34 – among that population. Likewise, issues such as substance abuse have been linked to homelessness which can contribute to antisocial behaviour.35 Such behaviour is usually not serious enough to result in criminal prosecution, but it may constitute a public order disturbance which may upset the established population. There was evidence that immigration detention was used to alleviate these ‘nuisances’ caused by immigrant pauperism. This was not only a practice of the local police force, but was

28 ibid, 99. 29 ibid, 99 (emphasis added). 30 L Weber, ‘The Detention of Asylum Seekers as a Crime of Obedience’ (2005) 13 Critical Criminology 89, 90. 31 Weber and Gelsthorpe (n 25). 32 ibid, 101. 33 Leerkes and Broeders (n 1). 34 A Leerkes and W Bernasco, ‘The Spatial Concentration of Illegal Residence and Neighbourhood Safety’ (2010) 32 Journal of Urban Affairs 368, 368. 35 ibid, 384–85.

44  The Right to Liberty encouraged by the Dutch government: ‘all efforts are aimed at expelling criminal and/or nuisance causing illegals and if that is not yet possible to detain them in order to take away the nuisance for society’.36 This policy is especially clear in the interviews conducted with immigration detention staff in Leerkes and Broeders’ study where it was revealed that ‘undesirable aliens are sometimes put in immigration detention by the police in big cities during special festivities in town such as Koninginnedag, the national celebration of the Dutch queen’s birthday’.37 A separate study by Leerkes found that some immigrants preferred to stay in the detention centre because it gave them relief from their life on the streets. The study looked at several cases where individuals actively tried to get put into immigration detention. Examples include a man setting up camp next to a detention centre after he had been released, and another pleading guilty to offences he had not committed in order to be put back in detention.38 Although no UK study similar to this has been undertaken, one study did find examples of cases where immigrants preferred to be in detention than to face destitution and that there are many instances of ‘cobbling’ (the practice of releasing someone from detention only to pick them back up again later) in the United Kingdom.39 Liz Fekete has also drawn on the example of the poor houses to analyse the accommodation of asylum seekers in the United Kingdom who lose their claim to financial assistance and face destitution if they do not remain with the authorities.40 Unlike some of the poor houses, though, immigration detention generally does not seek to reform the individual. The use of immigration detention is thus widespread, often in conditions on a par with or worse than prisons, and its use has been heavily critiqued and linked to punishment by scholars in the field. However, these debates are often not reflected in the legal approach to immigration detention. The detention of an individual by the state is an interference with the human right to liberty and so is only acceptable in specific circumstances and when appropriate procedures have been followed. The ECHR protects the right to liberty under Article 5. The Court usually applies a strict test when determining whether a detention is compatible with the Convention which will be outlined below. There are two exceptions to this strict test however: post-conviction detention and immigration detention.

36 Dutch Ministry for Justice report (2009) cited in A Leerkes and D Broeders, ‘A Case of Mixed Motives? Formal and informal Functions of Administrative Detention’ (2010) 50 British Journal of Criminology 830, 841. 37 ibid. 38 A Leerkes, Illegal Residence and Public Safety in the Netherlands (Amsterdam University Press 2009) 198. 39 A Klein and L Williams, ‘Immigration Detention in the Community: Research on the Experiences of Migrants Released from Detention Centres in the UK’ (2012) 18 Population, Space and Place 741, 743. 40 L Fekete, ‘The Emergence of Xeno-Racism’ (2001) 43 Race & Class 23, 32.

An Overview of the Right to Liberty   45

II.  An Overview of the Right to Liberty The right to liberty and security of person is enshrined in Article 5 of the ECHR which provides that everyone has a right to liberty and security of person with a limited number of permitted exceptions: 1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a. the lawful detention of a person after conviction by a competent court; b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

For the purposes of this chapter, the most crucial aspects of the right are Article 5(1)(a) for convicted criminals, Article 5(1)(c) for suspected criminals, and Article 5(1)(f) for immigrants. Before examining how the ECtHR has developed those specific sections of Article 5, however, it is necessary to look at Article 5’s overarching scope. In order for Article  5 to be invoked, there must be a deprivation of liberty; it is not concerned with restrictions on liberty which are protected separately in Protocol 4 to the Convention.41 The difference between a deprivation of liberty and a restriction on liberty is ‘merely one of degree or intensity, and not one of nature or substance’,42 so drawing a distinction between the two requires an examination of the individual circumstances of the case.43 Distinguishing between a restriction on and a deprivation of liberty is complicated – not needing permission to leave is not always sufficient to exempt a measure from being a deprivation of liberty. A distinction based on the need for permission to leave would be problematic for 41 Engel v Netherlands (1979–80) 1 EHRR 647, para 57. 42 Guzzardi v Italy (1981) 3 EHRR 333, para 92; Amuur v France Judgment (1996) 22 EHRR 533, para 42. 43 Guzzardi v Italy, ibid; Raimondo v Italy (1994) 18 EHRR 237.

46  The Right to Liberty many immigration cases. For example, in Amuur v France44 the French government tried to argue that holding asylum seekers in the international transit zone of an airport was not detention because, although the Applicants could not enter France, they were free to fly to another state. The government also argued that the Applicants could not ‘validly complain of a situation which they had largely created’.45 The Court stated that the fact that an asylum applicant may voluntarily leave the country does not exclude the possibility of a deprivation of liberty and noted that, in the case of an asylum seeker, the possibility of leaving the country and finding refuge elsewhere is usually theoretical anyway. The Court went on to reason that a restriction on liberty can turn into a deprivation of liberty in certain circumstances. In this particular case, the constant police surveillance of the Applicants and the fact that they had no recourse to social or legal assistance meant that they had been deprived of their liberty. The Court has issued similar rulings in other cases concerning immigrants.46 Despite this, in Mahdid and Haddar v Austria47 the Court found that immigrants cannot rely on Article  5 where they have largely created the situation, if that situation is combined with other factors. In this case, the two Applicants were asylum seekers who had destroyed their travel documents after their asylum applications had been dismissed. This meant they could not be deported and were required to stay at Vienna airport. The destruction of their travel documents was classed by the Court as a ‘deliberate choice for which the Contracting States cannot be in any way held responsible’.48 It should be noted that the decision to refuse the application of Article 5 was not solely based on this act of ‘free choice’ but on other factors as well, such as the lack of police surveillance, the lack of any impediment in seeking legal assistance and that the Applicants had refused better accommodation which was under surveillance. Likewise, in an apparent limited reversal of the principle set forth in Amuur, the Grand Chamber in the recent case of Ilias and Ahmed v Hungary49 held that Applicants who were held in the transit zone between Hungary and Serbia while their asylum application was decided were not deprived of their liberty as they could simply walk from Hungary to Serbia. The Grand Chamber distinguished this case from Amuur on the basis that in the Amuur case the Applicants could not leave ‘without authorisation to board an airplane and without diplomatic assurance concerning their only possible destination country, Syria, a country not bound by the Geneva Convention’ and that ‘what the applicants [in Ilias and Ahmed] feared in case of return to Serbia … was not a direct threat to their life or health but deficiencies in the functioning of Serbia’s

44 Amuur v France Judgment (n 42). 45 ibid, para 39. 46 Riad and Idiab v Belgium App No 29787/03 (ECtHR, 24 January 2008); Rashed v Czech Republic App No 298/07 (ECtHR, 27 November 2008). 47 Mahdid and Haddar v Austria (2006) 42 EHRR SE17. 48 ibid. 49 Ilias and Ahmed v Hungary (2020) 71 EHRR 6.

An Overview of the Right to Liberty   47 asylum system’.50 In this case, the Court laid out a set of factors to be taken in to account when determining whether or not the confinement of migrants in airport transit zones and reception centres amounted to a deprivation of liberty: (a) ‘the applicants individual situation and their choices’; (b) ‘the applicable legal regime of the respective country and its purpose’; (c) ‘the relevant duration, especially in light of the purpose and the procedural protection enjoyed by the applicants pending the events’; and (d) ‘the nature and degree of the actual restrictions imposed on or experienced by the applicants’.51 Thus, there is no easy test for identifying when a situation will only amount to a restriction on liberty rather than detention amounting to a deprivation of liberty. In order for Article 5 to be engaged, then, there must have been a deprivation of liberty. But as can be noted from the number of exceptions to this right, deprivations of liberty are a usual occurrence in everyday state business. Given how commonplace they are, to say that Article 5’s main focus is to prevent any deprivation of liberty would seem odd. Rather, the true aim of Article 5 is to prevent arbitrariness in detention. Thus, when examining a case under Article  5, the ECtHR will not only ask whether there was a deprivation of liberty, but whether that deprivation of liberty was lawful. In order to be ‘lawful’, the purpose of detention must fall under one of the exceptions listed in Article 5. If it does not, there will be an automatic violation of the Convention. ‘Lawful’ also refers to the domestic legislation and encompasses an examination as to whether the circumstances of the detention meet with certain general requirements that prevent a detention from being branded as arbitrary: On the question of whether a detention is lawful …, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of the right to liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.52

The ECtHR has not provided any set definition of what constitutes arbitrariness to cover all deprivations of liberty but most international human rights instruments consider it to encompass a test as to whether the detention was reasonable, proportionate and necessary in the circumstances and this is the usual approach of the ECtHR.53

50 ibid, paras 237–43. 51 ibid, para 217. 52 Ocalan v Turkey (2003) 37 EHRR 10, para 83. 53 UN Human Rights Committee (HRC), van Alphen v the Netherlands (Communication No 305/1988) CCPR/C/39/D/305/1988 23 July 1990, para 5.8; UNHCR, ‘Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention’ (2012) Guideline 4; Inter-American Commission on Human Rights, ‘Report on Immigration in the United States: Detention and Due Process’ (OAS 2010) OEA/Ser.L/II.Doc 78/10, paras 429–32; Chaparro Álvarez and Lapo Íñiguez Inter-American Court of Human Rights Series C No 170 (21 November 2007) para 93.

48  The Right to Liberty

III.  The Test for Criminal Detention There are two forms of detention relating to the criminal justice system covered by Article  5: (1) detention prior to trial; and (2) detention after conviction. We will begin with a discussion about pre-trial detention as this demonstrates the usual approach of the Court to detentions under Article 5, including a rigorous necessity and proportionality assessment. Article  5(1)(c) ECHR provides that a person may be detained prior to trial where there is a reasonable suspicion that they have committed an offence or when it is reasonably considered necessary to prevent them committing an offence or fleeing after having done so. The category of persons subject to such detention may be more simply categorised as ‘suspected criminals’, that is, persons who are suspected of committing a crime but who have not yet been convicted for committing the offence by a court. In determining whether a pre-trial detention was legal under the ECHR, the Court will consider not only whether it met all the requirements of the domestic law, but whether the detention was necessary and proportionate. These twin requirements appear to overlap somewhat as, generally, a proportionality test includes an examination of whether the measure was necessary (whether any less restrictive alternatives could have been used) but the ECtHR deals with these tests separately and has not explained its reasoning for doing so.54 In at least one instance the Court has found that a measure may be proportionate even if less severe measures were available.55 Thus the tests will be considered separately below.

A.  The Necessity Test and Pre-Trial Detention The actual wording of Article 5(1)(c) contains a reference to the necessity test in that the detention must be ‘reasonably considered necessary’. This must also be read in conjunction with Article 5(3) which applies specifically to those detained under Article 5(1)(c). It provides them with safeguards: Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Although this does not specifically refer to the necessity test, the interpretation of Article 5(3) has contributed to the fleshing out of the necessity test such as in the case of Neumeister v Austria.56 The case concerned an Austrian man who was

54 This is in line with the approach of other human rights bodies where these tests are usually ­separated – see below. 55 Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309, para 62. 56 Neumeister v Austria (1979–80) 1 EHRR 136. See also Muller v France App No 21802/93 (ECtHR, 17 March 1997).

The Test for Criminal Detention  49 suspected of defrauding the tax authorities. After initial arrest, he was released on parole. Throughout his parole, he had made two trips away from Austria, both with the permission of the investigating judge, and both of which he had returned from. An application for a third trip abroad, however, was refused at the behest of the Public Prosecutor’s Office. This was because the charges against the Applicant had become significantly more serious following further investigation. The Applicant was then put in detention as a flight risk because he had continued preparing for his trip despite the lack of authorisation and because the sentence against him would be severe if he was found guilty. He complained that this breached his rights under Article 5(3) ECHR. He argued that the detention was not necessary and the factors determining it as such were incorrect. The Court found that the basis for the Applicant’s lengthy pre-trial detention (that there was a danger of flight) was insufficiently made out to constitute being reasonably necessary. The fact that the sentence against the Applicant was severe and must have caused him fear was relevant, but on its own was not enough to constitute a danger of flight. Other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted, should all be considered as well. Thus, the case established that the Court would scrutinise the state’s reasons behind the detention and that such reasons must be quite robust. It also made it clear that the possibility of a severe penalty was not sufficient justification for a state to detain individuals under Article 5(1)(c). The Applicant in Neumeister also complained that his right to trial within a reasonable time was breached. The Austrian government argued that under Article 5(3) when a suspect is offered release on bail, even if he cannot afford it, then the right to a trial within a reasonable time is forfeited. The ECtHR rejected this argument; it found that Article  5(3) does not give the authorities a choice between release pending trial and trial within a reasonable time. The Court disclosed the essential purpose of that provision is to require a provisional release once detention ceases to be reasonably necessary. Thus, there is a presumption in favour of release which corresponds to the principle that a suspected criminal is innocent until proven guilty. The presumption in favour of release has been affirmed in the case of Mckay v United Kingdom57 where the ECtHR found that whether the continuation of a detention is reasonably necessary must be assessed in light of all the individual circumstances of the case. Therefore, the necessity of the detention under Article 5(1)© must be shown throughout the whole length of the detention, not just at the initial decision to detain. As well as the continuing need for detention to be established, each case of pre-trial detention must be considered on its own merits and circumstances. In Caballero v United Kingdom,58 a UK law required



57 McKay

v United Kingdom (2007) 44 EHRR 41, para 40. v United Kingdom (2000) 30 EHRR 643.

58 Caballero

50  The Right to Liberty the national courts to automatically deny bail to anyone who was charged with a serious offence where that person had a previous conviction of that offence (in this instance, rape). This was incompatible with Article 5(3) as it did not allow for the individual assessment of each case. So how ‘reasonably necessary’ a detention is must be determined by an individual test. The ECtHR has also stated that where the risk of absconding can be mitigated by other measures such as bail, police supervision or other guarantees to appear for trial, then the authorities are under a duty to consider those alternatives. In Jablonski v Poland59 the Applicant was charged with aggravated theft, armed robbery and attempted homicide. The authorities used the serious nature of the offences as reason to keep him detained. The Applicant challenged his detention on several grounds, one of which was that the Polish courts had failed to consider other, more lenient measures than detention. The ECtHR found a duty to consider alternatives in the very text of the Convention: national courts are under an obligation to consider other alternatives to detention because Article 5(3) also guarantees ‘release which may be conditioned by guarantees to appear for trial’.60 Thus, for suspected criminals detained under Article 5(1)(c) the necessity test has the following features: there is (1) an individual test of the suspect’s circumstances which is (2) based upon the presumption of release. This test (3) applies throughout the whole length of the detention and (4) requires the state to consider alternatives to detention.

B.  The Proportionality Test and Pre-Trial Detention As one of the implied general principles of the ECHR, the requirement of proportionality runs through the whole of the Convention.61 As stated above, a proportionality test is very similar to the necessity test and is also used to balance conflicting interests by weighing the legitimate goal against the individual’s rights. Proportionality is usually interpreted as being divided into three sub-principles:62 (1) suitability, (2) necessity and (3) proportionality in the narrow sense. The first sub-principle, suitability, requires a causal relationship between the measure and the aim pursued. The second sub-principle, necessity, refers to idea that the least restrictive measure should be used to achieve the goal meaning the state must have considered alternative measures. Third, proportionality in the narrow sense requires the Court to assess whether the potential ‘harm’ caused by the measure is appropriate to the needs of the public interest. In other words: are there ‘sufficiently

59 Jablonski v Poland (2003) 36 EHRR 27. 60 ibid, para 83. 61 P Van Dijk and G Van Hoof, Theory and Practice of the European Convention on Human Rights (Kluwer Law International 1998) 81. 62 E Brems and J Gerards (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2014) 42.

The Test for Criminal Detention  51 compelling reasons for the burden or disadvantage suffered?’63 When the ECtHR applies the proportionality test it does not always explicitly apply these three subprinciples, but they are usually present in the assessment.64 Express references to the proportionality test in the ECtHR’s Article  5 case law are uncommon as it usually restricts itself to testing for ‘arbitrariness’ or ‘lawfulness’,65 but the three sub-principles of proportionality are often present in the Court’s consideration of the detention of suspected criminals under Article 5(1)(c). The suitability principle is present in the idea of a legitimate purpose for the detention. To be suitable under Article 5(1)(c) the detention should only be carried out to bring a person before a competent legal authority when there is a reasonable suspicion that they committed the offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. Any other reason for detention will not fall under Article 5(1)(c) as the detention will not pursue the aim specified in that Article. The ‘necessity’ principle is very prevalent in ECtHR Article 5 case law. As seen above, in the case of a suspected criminal’s detention, the ECtHR will require the state to consider whether any less restrictive measures could have been used to achieve the aim of detention which is usually the interests of justice or public security.66 There is also ECtHR case law in regard to the consideration of proportionality in the narrow sense and suspected criminals. As stated above, proportionality in the narrow sense requires the Court to weigh the burden suffered by the individual (ie, the loss of his liberty) against the public interest. This test is most obvious when the state attempts to justify the detention of a person to prevent him fleeing. A suspected criminal may be detained continuously because he is a ‘flight risk’. This balances the public interest of justice with the individual’s right to liberty. But this is a stringent test; a suspected criminal cannot be labelled a flight risk merely because there is a possibility he will abscond.67 There must be compelling reasons to label him a flight risk and continue his detention on that basis. He cannot be detained because it is simply easier for the state to detain him to ensure that he appears for trial. In other words, the public interest only outweighs the burden when there is a very real danger that it will not be realised – not when there is a mere possibility of this. Pre-trial detention thus involves rigorous scrutiny of the reasons given for the detention taking into account all the circumstances of the case. The interpretation of this provision exemplifies the usual approach of the Court towards 63 N Gibbs, ‘Getting Constitutional Theory in Proportion: A Matter of Interpretation’ (2007) 27 Oxford Journal of Legal Studies 175, 185. 64 D Susnjar, Proportionality, Fundamental Rights and the Balance of Powers (Brill Publishing 2010) 91; J Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’ (2013) 11 International Journal of Constitutional Law 466, 467. 65 J Christofferson, Fair Balance: A Study of Proportionality, Subsidiarily and Primarity in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009) 117. 66 Muller v France App No 21802/93 (n 56); Jablonski v Poland (n 59); Ambruszkiewicz v Poland App No 38797/03 (ECtHR, 4 May 2006) paras 29–30. See also Ciulla v Italy (1991) 13 EHRR 346. 67 Neumeister v Austria (n 56).

52  The Right to Liberty deprivations of liberty. For example, under Article  5(1)(b)68 the ECtHR has found that a balance must be struck between the interests of securing an obligation and the right to liberty. In assessing whether such a balance has been correctly struck the Court will essentially ask: given an individual assessment of the circumstances, was it necessary to detain the person to fulfil the goal?69 Under Article  5(1)(e)70 the ECtHR has found that the detention of persons to prevent the spreading of infectious diseases must be a last resort because less severe measures would not ensure public safety.71 For those of unsound mind the mental disorder must be of a kind which warrants compulsory detention and their continued detention must also be justified by the continued presence of such a mental disorder.72 For alcoholics, the ECtHR has found their detention unlawful where it was unnecessary.73 There are two exceptions to this normally rigorous test, however; the first is post-conviction detention covered by Article  5(1)(a) which is outlined below, and the second is immigration detention where the very low standard of protection stands in direct contrast with the normal approach of the Court and will be detailed in section IV.

C.  Post-Conviction Detention Article  5(1)(a) covers the other aspect of criminal detention: detention after conviction. It is important to note that under Article 5(1)(a) the Court will only examine whether the detention was lawful, not whether the conviction was lawful, although the court which orders the conviction must be ‘competent’. This means that it must have the power under national law to order the conviction; the body must possess a judicial character and follow a fair procedure.74 Here ‘fair procedure’ does not refer to all of the requirements under the right to a fair trial in Article  6 of the Convention, but rather means where there is a ‘flagrant denial of justice’ which was ‘manifestly contrary’ to the provisions for a fair trial then a detention under Article  5(1)(a) will be unlawful.75 For example, in the case of Ilascu and Others v Moldova and Russia76 the Applicants had been convicted and sentenced to detention by the Supreme Court of the Moldavian Republic of 68 Concerning detention to secure the fulfilment of an obligation prescribed by law or because of non-compliance with a lawful court order. 69 Vasileva v Denmark (2005) 40 EHRR 27, para 37. 70 Concerning the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants. 71 Enhorn v Sweden (2005) 41 EHRR 30, para 42. 72 Winterwerp v Netherlands (1979–80) 2 EHRR 387, para 39. 73 Witold Litwa v Poland (2001) 33 EHRR 53, para 79. 74 De Wilde, Ooms and Versyp v Belgium (1979–80) 1 EHRR 438. 75 Drozd and Janousek v France and Spain (1992) 14 EHRR 745, para 110; Ilascu and Others v Moldova and Russia (2005) 40 EHRR 46, paras 458–62; Hammerton v United Kingdom (2016) 63 EHRR 23, para 98. 76 Ilascu and Others v Moldova and Russia, ibid.

The Test for Immigration Detention  53 Transdniestria. This Republic was not recognised under international law. Though the Court found that this was not always a barrier to recognition as a ‘competent court’, the procedure followed by the Supreme Court was patently unfair. Examples of clearly unfair procedure included allowing witnesses to remain in the room while other witnesses gave evidence, and the fact that the Applicants could only speak to their lawyers when armed police officers were present. The ECtHR found that the Applicants had not been convicted by a ‘court’ and so their detention was arbitrary. The Court will also consider the detention to be unlawful where the conviction had no basis in domestic law such as in the case of Tsirlis and Kouloumpas v Greece77 where a military tribunal blatantly ignored Greek law to convict two Jehovah’s Witnesses for insubordination, making their subsequent detention arbitrary. Another condition for the lawfulness of a detention under Article 5(1)(a) is that the detention is ‘after’ a conviction by a competent court. ‘After’ here does not simply mean ‘after in time’ but rather refers to the idea that the deprivation of liberty is directly caused by the conviction.78 Therefore, a detention will only be lawful if it depends upon the conviction, not if it simply follows the conviction in time. Thus, the Court’s test for arbitrary detention under Article  5(1)(a) has the following features: (1) the court which issued the conviction must be competent, which includes the idea that the process should not be manifestly contrary to the Article  6 provisions for a fair trial (in other words, the absence of bad faith in conviction); (2) the conviction must arise from an actual offence committed under domestic law; and (3) the detention must not only follow the conviction in time but also ‘flow’ from it.

IV.  The Test for Immigration Detention The use of immigration detention is covered by Article 5(1)(f) which allows for the detention of persons (1) to prevent them effecting unauthorised entry into the country or (2) when action is being taken against them with a view to deportation. The standard of protection offered by each aspect of Article 5(1)(f) is essentially the same. The Court’s test for arbitrariness under Article 5(1)(f) does not require the state to show the necessity of the measure nor is there any real proportionality test. Instead, the test has three main components: (1) the detention must be genuinely ‘with a view to deportation’ or ‘closely connected’ to preventing unauthorised entry; (2) there must not be any bad faith; and (3) the detention period must not be unnecessarily prolonged. The development and foundation of this test, most prominently in the Saadi case,79 will be discussed below.

77 Tsirlis

and Kouloumpas v Greece (1998) 25 EHRR 198. v United Kingdom (2002) 35 EHRR 32. 79 Saadi v United Kingdom [GC] (2008) 47 EHRR 17. 78 Stafford

54  The Right to Liberty

A. The Saadi Test A clear statement of the test for arbitrariness in cases of immigration detention was provided in the Saadi case.80 In this case the Applicant had fled Iraq and claimed asylum in the United Kingdom. He was subsequently detained for seven days. He challenged this detention as being unlawful under Article 5 of the ECHR. Whether or not asylum seekers were covered by Article 5(1)(f) as ‘unauthorised entrants’ was uncertain before Saadi. The Grand Chamber in Saadi determined that anyone who had not been officially granted leave to remain by the authorities was in the state’s territory illegitimately and so had not effected a lawful entry; this category included asylum seekers. This decision has drawn criticism from the academic community and civil society because it fails to draw any distinction between an asylum seeker who may travel without papers,81 and an irregular economic immigrant.82 After determining that asylum seekers could be considered unauthorised entrants, the Court in Saadi began its assessment of whether or not the detention was arbitrary. It began by noting that the ECtHR had not yet formulated a test for arbitrariness under Article 5(1)(f). Previous case law had provided some indicative criteria, however. The case of Chahal v United Kingdom83 established that the Court would not undertake a necessity test for immigration detention when the person was being held for deportation.84 The case also established that the Court would consider the length of detention when assessing arbitrariness. To prove that the detention was unnecessarily prolonged, an applicant would have to show that the deportation proceedings were not being pursued with due diligence and this meant even very long periods of detention could still be compatible with the Convention. In Chahal85 for example, the Applicant had been detained for six years during which time the Home Secretary had twice considered his application for asylum and rejected it. The first rejection took seven months to come through and the second rejection took six months. The ECtHR did not consider these periods to be excessive due to the serious nature of the considerations that must be undertaken, given that public security was at risk. 80 ibid. 81 1951 Convention Relating to the Status of Refugees, Article 31. 82 The United Nations High Commissioner for Refugees, the European Council on Refugees and Exiles, the AIRE Centre and the NGO Liberty submitted observations to the Grand Chamber in Saadi expressed concern. The dissenting judges in the case were also unhappy with this decision: Saadi v United Kingdom (n 79), Joint Partly Dissenting Opinion of Judge Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and Hirvela. See also H O’Nions, ‘Exposing Flaws in the Detention of Asylum Seekers: A Critique of Saadi’ (2008) 17 Nottingham Law Journal 34; H O’Nions, ‘No Right to Liberty: The Detention of Administrative of Asylum Seekers for Administrative Convenience’ (2008) 10 European Journal of Migration and Law 149. 83 Chahal v United Kingdom (1997) 23 EHRR 413. 84 ibid, para 112; Conka v Belgium (2002) 34 EHRR 54, para 38; Mikolenko v Estonia App No 10664/05 (ECtHR, 8 October 2009). 85 Chahal v United Kingdom (n 83).

The Test for Immigration Detention  55 In A and Others v United Kingdom,86 the Court established that a detention under Article 5(1)(f) must truly be for immigration purposes. The Court found that several of the Applicants in this case had no realistic prospects of being deported. One of the Applicants was stateless and the UK government had not provided any evidence that there were any other states willing to take him. Deporting some of the other Applicants would violate Article 3 of the Convention. The UK government had also not engaged in negotiations with the states of Algeria or Jordan until the end of 2003 despite the fact that several of the Applicants were of those nationalities and had been detained since 2001. No assurances were received from either country until 2005. Given these circumstances the Court found that the government’s policy of keeping the possibility of deportation under review failed to be consistent or determinative enough to warrant ‘detention with a view to deportation’. The Applicants were actually being detained because they were considered to be a threat to national security. Therefore, their detention was not truly with ‘a view to deportation’. Their detention was found to be arbitrary under Article 5(1)(f). In the case of Conka v Belgium87 several Roma families were told to come to a police station to ‘enable files concerning their asylum applications to be completed’.88 The Applicants attended and were served with deportation notices and taken into detention. The ECtHR found that the wording of the notice amounted to a practice of deception which was inappropriate in this context. The authorities had acted in bad faith which made the detention arbitrary. Thus, the Court in Saadi found that the previous case law provided for tests of good faith, that the measure be genuinely linked to the restrictions under Article 5(1)(f), and that there is some relationship between the reason for the deprivation of liberty and the place, length and conditions of detention.89 The Court then examined the tests for arbitrariness under Articles  5(1)(b), (d) and (e) which, as briefly outlined above, require an assessment of whether detention was necessary to achieve the legitimate purpose. Interestingly it did not mention Article 5(1)(c) which, as shown above, also requires a necessity test. It then went on to cite the test for arbitrariness under Article 5(1)(a) which deals with detention after conviction by a competent court. Article  5(1)(a) does not require a necessity test, only that the detention be in good faith and be genuinely linked to the exemption under Article 5(1)(a). The Court compared the Article 5(1)(a) test to the one used under Article 5(1)(f) when determining the lawfulness of a detention ‘with a view to deportation’ as laid down in Chahal90 which also did not include a requirement of necessity. Then the

86 A and Others v United Kingdom (2009) 49 EHRR 29. 87 Conka v Belgium (n 84). 88 ibid, para 18. 89 Chahal v United Kingdom (n 83); Conka v Belgium (n 84) para 38; Mikolenko v Estonia App No 10664/05 (ECtHR, 8 October 2009); Auad v Bulgaria App No 46390/10 (ECtHR, 11 October 2011). 90 Chahal v United Kingdom (n 83).

56  The Right to Liberty Court states that the test used in Chahal should also be used in cases to prevent unauthorised entry. The only explanation given for this reasoning is that: Since States enjoy the right to control equally an alien’s entry into and residence in their country, it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country.91

Where did this leave the test for arbitrariness? The ECtHR determined that the concept of arbitrary detention did not require a necessity test: To avoid being branded as arbitrary … such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate and the length of detention should not exceed that reasonably required for the purpose pursued.92

Requiring a detention to be ‘closely connected’ to the purpose of preventing unauthorised entry is far broader than a necessity test. In order for a detention to be ‘closely connected’ all the state really needs to show is that it was genuinely trying to enforce immigration laws.93 There is no requirement to assess individual cases to determine whether detention is appropriate. This point is raised in the Opinion of the dissenting judges who argue that this ruling means that asylum applicants may now be liable to detention at any time. This arbitrariness test also includes whether the place, conditions and length of detention are appropriate. In Chahal, the ECtHR stated that the test for the appropriateness of the length of immigration detention was whether deportation proceedings were being pursued with due diligence. The ECtHR does not provide any specific test for the length of detention of an unauthorised entrant but it does discuss the test laid down in Chahal, so it can be assumed that the test for the lawfulness of the length of detention is whether the Applicant’s case is being considered with due diligence. Despite the importance that the Court had placed on alternatives to detention in other areas under Article 5, there was almost no mention of the possibility of alternatives in Saadi. Alternatives are only hinted at in the final paragraph of the judgment: [T]he Court finds that, given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with increasingly high numbers of asylum-seekers, it was not incompatible with Article 5 § 1 (f) of the Convention to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Moreover, regard must be had to the fact 91 Saadi v United Kingdom (n 79) para 73. 92 ibid, para 74. 93 G Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff Publishers 2010) 298.

The Test for Immigration Detention  57 that the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers.94

Again, the dissenting judges criticised the lack of discussion of alternatives saying that this last sentence indicates that there was the possibility of alternatives. They also raised the point that the ECHR does not operate in a vacuum and cite various international guidelines and instruments which encourage the necessity test and alternatives to detention. The judgment in Saadi95 does retain some elements of proportionality in that there are considerations regarding the length of detention and the place and conditions of detention which were laid down in previous case law. Nevertheless, the test for the lawfulness of the detention of an unauthorised entrant laid down in Saadi does appear to remove a proper proportionality assessment. First, in regard to the suitability test, the judges in Saadi stated that the detention must be ‘closely connected’ to the purpose of preventing unauthorised entry. The prevention of unauthorised entry is a legitimate aim of an exception to the right to liberty but this phrasing implies that it has been expanded. As stated above, ‘closely connected’ to preventing unauthorised entry could be interpreted to merely mean seeking to control immigration.96 This is a much wider purpose to test suitability against and will inevitably allow more measures than a stricter legitimate purpose test. Though a vague purpose does not necessarily mean that the suitability criterion has been removed, when it is compared with the position of suspected criminals it is clear that the suitability test here is much weaker. The lack of a necessity test also presents problems for the suitability principle. How can the suitability of a measure to a legitimate aim be assessed without a consideration of whether the measure was necessary for the aim to be achieved? Second, the necessity criterion of the proportionality test is completely lacking for unauthorised entrants. The ECtHR does not require the state to consider any less restrictive measures for the pursuit of the aim.97 The test laid down in Saadi does call for an examination of the length of detention which could have represented a ‘least restrictive means’ test if it had included an assessment of whether the length of the detention was necessary for the legitimate aim but this is not the case: all that needs to be shown is that the authorities are treating the claim with due diligence. There is no assessment of whether the detention is actually necessary for the realisation of the proceedings. Third, and most prominently absent, is the test of proportionality in the narrow sense. Proportionality in the narrow sense requires that the burden of



94 Saadi 95 ibid.

v United Kingdom (n 79) para 80.

96 Cornelisse 97 Saadi

(n 93) 298. v United Kingdom (n 79).

58  The Right to Liberty detention does not outweigh the goal. The Saadi criteria do not require any individual assessment of the circumstances except whether the length of the detention was reasonable. Without the necessity test to determine the likelihood of the detainee absconding, however, the test is not very rigorous. Detention is not a pleasant experience – it separates families and causes mental health problems – it is potentially a very harmful experience.98 Detention can be a frightening experience for anyone, but the effect is amplified when those detained have already been victims of torture or incredibly traumatic circumstances as ‘it recreates the environment of oppression, fear and uncertainty from which people have fled’.99 A true proportionality test would require an assessment of whether this harm is offset by a public interest.100 The public interest in this case relates to a state’s right to control its borders – in other words an effective and efficient system of immigration control. Such an assessment would surely require a consideration of whether detaining immigrants is necessary for the immigration system to remain effective and efficient, for example, the likelihood of absconding. Without an individual assessment of the circumstances, how is it possible to determine whether the harm involved in detaining that individual is strictly proportionate to the importance of immigration control? Instead of asking whether detention is needed to prevent absconding and whether the length is proportionate given the importance of immigration control, the test becomes whether there a good chance that the goal of deportation can still be realised. This is a far less stringent test which puts much more emphasis on the importance of the goal in comparison to other aspects of Article 5. Problematically, the ECtHR also appeared to express a belief that detention is for the benefit of unauthorised entrants: Indeed the policy behind the creation of the Oakington regime was generally to benefit asylum-seekers; as Lord Slynn put it, getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue.101

In other words, if it speeds up the process, it is proportionate to keep an immigrant detained. It is true that in other aspects of Article 5 the Court has allowed for the detention of persons who may be a danger to themselves but in every case this must be substantiated by the state as a necessary measure.102 Here the Court just seems to assume that a ‘speedy decision’ outweighs any negative effects detention may have on the Applicant. 98 This point is discussed at length in ch 1. 99 C Pourgourides ‘The mental health implications of detention of asylum seekers’ in J Hughes and F Liebaut (eds), Detention of Asylum Seekers in Europe: Analysis and Perspectives (Kluwer Publishing 1998) 24. See also ‘Becoming Vulnerable in Detention’ (Jesuit Refugee Service, June 2011), available at: www.refworld.org/docid/4ec269f62.html; and J Cleveland and C Rousseau, ‘Psychiatric Symptoms Associated with Brief Detention of Adult Asylum Seekers in Canada’ (2013) 58 Canadian Journal of Psychiatry 409. 100 O’Nions, ‘No Right to Liberty’ (n 82) 181. 101 Saadi v United Kingdom (n 79) para 77. 102 Enhorn v Sweden (n 71).

The Test for Immigration Detention  59

B.  A Stricter Test for Children It should be noted that since 2006 the ECtHR has taken a stricter approach to the detention of children in immigration detention. In Mubilanzila Mayeka and Kaniki Mitunga v Belgium,103 a five-year-old girl (Tabitha) was brought from the Democratic Republic of Congo to Belgium by her uncle who was a Dutch national with the end goal of being reunited with her mother who had been recognised as a refugee in Canada. Her uncle failed to convince the Belgian authorities that Tabitha was his daughter; he was deported to the Netherlands and Tabitha was placed into immigration detention with adults for two months. Her release was ordered by a Belgian court but the next day she was deported to back to the Democratic Republic of Congo. The ECtHR found that the detention of Tabitha had violated Article 5 of the ECHR. In this case it stated that the Applicant was in a situation of ‘extreme vulnerability’104 which the Belgian detention estate could not deal with adequately, thus her detention was a violation of Article 5. Moreover, the act of detaining her was a violation of Article 3 of the Convention which prohibits torture, inhumane or degrading treatment or punishment. In relation to Article 3, the Court stated the ‘extremely vulnerable situation [of a lone five year old] … takes precedence over considerations of status as an illegal immigrant’.105 The Court has on several occasions found that the detention of children violates both Article 3 and Article 5 of the Convention.106 The Court has recently found that the placement of children in immigration detention requires an assessment of whether any less restrictive measures could have been used,107 but this test has not been applied to their parents who accompanied them108 and has not been applied in adult immigration detention cases generally.109 There is one case, however, where a less restrictive means test has been used for adult immigration detention. In Yoh-Ekale Mwanje v Belgium,110 a Cameroonian woman suffering from HIV was kept in immigration detention in Belgium. One of several complaints she made was that her right to liberty had been violated. The Court considered the circumstances of her case and found that she was in regular contact with the authorities who knew both her identity and fixed address, that she was very ill 103 Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2008) 46 EHRR 23. 104 ibid, para 103. 105 ibid, para 55; this principle has been confirmed in several cases, see Kanagaratnam v Belgium (2012) 55 EHRR 26, para 62; Tarakhel v Switzerland (2015) 60 EHRR 28; VM and others v Belgium App No 60125/11 (ECtHR, 7 July 2015) para 138; Popov v France (2016) 63 EHRR 8, para 91. 106 Muskhadzhiyeva v Belgium App No 41442/07 (ECtHR, 19 January 2010); Rahimi v Greece App No 8687/08 (ECtHR, 5 April 2011) para 109; Kanagaratnam v Belgium (n 106); Popov v France (n 105). 107 Rahimi v Greece (n 105) para 109; Popov v France (n 105) para 119. 108 ibid. 109 LM and Others v Russia App No 40081/14 (ECtHR, 15 October 2015) para 146; Nabil and Others v Hungary App No 62116/12 (ECtHR, 22 September 2015) para 28; Suso Musa v Malta (2015) 60 EHRR 23, para 93; Popov v France (n 105) para 120; Seagal v Cyprus App No 50756/13 (ECtHR, 26 April 2016) para 151. 110 Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR 35.

60  The Right to Liberty and had deteriorated during her time in detention and found that the failure to consider less severe measures than immigration detention resulted in a violation of Article 5(1)(f). However, Yoh-Ekale appears to be a one-off. It is notable that the case is only available in French, ‘signifying that the Court does not attribute much importance to [it]’.111 The only recorded subsequent citation of it by an applicant before the Court is in Suso Musa v Malta.112 The Court ignored this argument in its judgment. Thus, with the exception of children the usual test for arbitrariness in immigration detention has the following features: (1) the detention must be genuinely ‘with a view to deportation’ or ‘closely connected’ to preventing unauthorised entry; (2) there must not be any bad faith; and (3) the detention period must not be unnecessarily prolonged.

V.  Any Real Protection against Arbitrariness? In this section, several reasons will be explored as to why the current ECtHR interpretation of the right to liberty as regards immigration detention is problematic. These include the lack of explanation for the different tests for immigration detention and pre-trial detention when both effectively aim to achieve the same goals, the lack of real similarity between post-conviction detention and immigration detention and how the ECtHR defines arbitrariness in immigration detention is out of step with many other influential human rights institutions.

A.  The Difference between Immigration Detention and Pre-trial Detention Immigration detention is classed as administrative detention whereas pre-trial detention is considered part of the criminal justice system but there appears to be little real difference between the functions of these two types of detention. The detention of a suspected criminal is thought necessary to either prevent him committing a crime or to ensure that he appears for trial.113 The goals of immigration detention are often more vaguely articulated as for ‘immigration control’,114 but the maintenance of immigration control involves detention to ensure that the detainee does not flee before a decision is made and to protect the public from a risk – essentially the same goals as pre-trial detention. It appears, then, that immigration detention and pre-trial detention perform the same functions. 111 M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 396. 112 Suso Musa v Malta (n 109) paras 71 and 86. 113 As specified in Article 5(1)(c). 114 D Wilsher, Immigration Detention: Law, History, Politics (Cambridge University Press 2011) 334.

Any Real Protection against Arbitrariness?  61 This makes the vast disparity in protection against detention outlined above seem unfounded. Peter Schuk, however, has defended the discrepancy.115 He argues that an irregular immigrant has less of a reason to show up to a hearing and to refrain from wrongdoing than a pre-trial criminal does. He bases this argument on the fact that a suspected criminal needs to worry about the potential of a harsher sentence and their reputation in the community.116 These arguments are problematic, however. First, like a suspected criminal, an irregular immigrant may also fear a harsher sentence if they abscond.117 If suspected criminals can infer that absconding will have an adverse impact on the outcome of their trial, then surely asylum seekers can have a similar concern that absconding will adversely affect their application? Also, as irregular entry and stay have been classed as criminal offences in many European states (as outlined in chapter one), those who abscond may fear worse penalties. If they are caught, then they may face a criminal charge with consequences such as a fine or time in prison. Schuk actually acknowledges that this may be the case but argues that the effect may be weakened if the immigrant does not believe the consequences will be different than if they did not abscond.118 This argument could also, however, apply to suspected criminals accused of serious crimes. Yet the ECtHR has explicitly found that the possibility of a severe penalty is not by itself sufficient grounds to claim that there is a risk of absconding in suspected criminals.119 In regard to worrying about their reputation in the community – those who have lived (irregularly or with (now revoked) permission) in the United Kingdom for a considerable period of time, will obviously have a similar worry as suspected criminals, and those who have just arrived may worry about the knowledge of a criminal charge reaching their home community and affecting their reputation. The second argument advanced by Schuk is that the discrepancy is valid because the authorities will typically have much more knowledge about a suspect’s character, etc than they will for those subject to immigration removal.120 This argument has less weight now that technology has allowed a significant amount of information to be known about an asylum seeker. For example, EU law requires their fingerprints to be taken upon their application for asylum.121 Officials can then check if the asylum seeker has absconded from the authorities in another 115 P Schuk, ‘INS Detention and Removal: A White Paper’ (1997) 11 Georgetown Immigration Law Journal 667 – this article focuses on immigration detention and pre-trial detention in the American context but the theory is transferable to the European context. 116 ibid, 671–72. 117 SH Legomsky ‘The Detention of Aliens: Theories, Rules and Discretion’ (1999) 30 University of Miami Inter-American Law Review 531, 545. 118 Schuk (n 115) 672. 119 Muller v France App No 21802/93 (n 56). 120 Schuk (n 115) 672. 121 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1, Article 8.

62  The Right to Liberty EU Member State or if they have been picked up by the home authorities before and potentially if they have committed any criminal offences.122 Also information regarding the character and community ties of those who have lived in the United Kingdom (irregularly or otherwise) for some time should also be available. Schuk’s arguments are, therefore, not particularly convincing. There are other similarities between pre-trial detention and immigration detention which also raise questions as to why there is a difference in human rights protection. A good example is the effect that detention has on the detainee’s mental health. Both pre-trial detainees and asylum seekers in detention suffer from high levels of stress due to uncertainty both as to the outcome of their case and the duration of their detention.123 Another is the potential for both pre-trial and immigration detention to be used as a coercive measure to get the party to cooperate with the authorities.124 The functions of pre-trial and immigration detention therefore seem to be very similar, but suspected criminals have greater protection against detention than migrants. This adds to the idea that the treatment of immigrants is moving beyond criminalisation because the difference in treatment remains unexplained. If the functions of pre-trial detention can be achieved without compromising on the necessity and proportionality tests, then why can the same functions not be fulfilled in relation to immigration detention?

B.  The Extra Protections for Post-Conviction Detention As can be seen above, the ECtHR undertakes very similar tests for arbitrariness when looking at detentions under Article 5(1)(a) and Article 5(1)(f). In fact, this 122 Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice [2013] OJ L 180/1, Article 20. 123 Pourgourides (n 99) 24; D Van Zyl Smit and S Snacken, Principles of European Prison Law and Policy: Penology and Human Rights (Oxford University Press 2009) 48; ‘Becoming Vulnerable in Detention’ (n 99); and Cleveland and Rousseau (n 99). 124 Many countries have immigration laws which allow for detention to coerce cooperation, see Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Greece, Estonia, Finland, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Slovakia, Slovenia, the United Kingdom and Norway: European Migration Network, ‘The Use of Detention and Alternatives to Detention in the Context of Immigration Policies’ (European Commission, 2014) 23–24, available at: ec.europa.eu/ home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/ docs/emn-studies/emn_study_detention_alternatives_to_detention_synthesis_report_en.pdf. See also S Raoult, ‘The Functional Ambiguities of Pre-Trial Detention in France’ in M Charret-Del Bove and F Mourlon (eds), Pre-trial Detention in the 20th and 21st Century Common Law and Civil Systems (Cambridge Scholars Publishing 2014).

Any Real Protection against Arbitrariness?  63 was made explicit by the Court in the Saadi case.125 Neither detention requires a necessity or proportionality test. The main considerations are whether the detention was in bad faith and whether the state is genuinely carrying out the conviction or exercising its immigration control powers. The similarity between these protections, however, is misleading. This is because of the significant other protections that those in the criminal justice system are given. The conviction and order for detention of post-conviction detainees must come from a ‘competent court’. As stated above, this does not encompass all the requirements of Article 6 – the right to a fair trial – but it does ensure that the conviction comes from a judicial body which operates according to a fair procedure. This can be compared to the situation of immigration detainees. It is very common across Europe for the decision to detain under immigration detention powers to come from an administrative authority. In Belgium, Ireland, Greece, Malta, the Netherlands, Slovakia, Slovenia and the United Kingdom, administrative authorities decide on detention and no judicial checks take place within a few days of detention.126 Likewise in Denmark, Estonia, Finland, France and Lithuania the decision to detain is taken by administrative authorities though there is a judicial check within a few days of the detention.127 Some countries such as Germany, Portugal and Spain do require a court order to detain a pre-deportation detainee,128 but they are in the minority. This practice of administrative decision-making often offers far less protection than the criminal justice system does. To take the United Kingdom as an example, the decision as to whether to detain a migrant in an IRC is made administratively by Home Office officials, usually ‘a relatively junior civil servant’.129 There is no requirement that the legality of that decision is reviewed by any kind of judicial authority at all. Migrants may apply for bail but that in itself does not review the legality of the detention decision; an application for judicial review is needed for that which is a very lengthy process and usually only occurs in cases where the detention is already unlawful rather than examining a prospective detention.130 The fact that there is no face-to-face decision contact between decision-makers and the migrants themselves has also been roundly criticised by official reports and academics.131 Over time there have been significant questions raised by official reports and case law as to the efficacy of the decisionmaking process by the Home Office. A significant amount of case law over the past 20 years has demonstrated that the decision-making process routinely 125 Saadi v United Kingdom (n 79) para 71. 126 A van Kalmthout, F Hofstee-van der Meulen and F Dunkel (eds), Foreigners in European Prisons (Wolf Legal Publishers 2009) 61. 127 ibid. 128 ibid. 129 Bosworth, ‘Border Criminologies’ (n 16) 9. 130 House of Commons Home Affairs Committee, ‘Chapter 3’ (n 12) para 36. 131 ibid, 68–72; M Bosworth, ‘Immigration Detention, Punishment and the Transformation of Justice’ (2019) 28 Social & Legal Studies 81, 88.

64  The Right to Liberty fails to safeguard against the detention of vulnerable groups, including torture survivors or those with profound mental health problems.132 This case law has sometimes identified that the lack of clarity around the detention decisionmaking process is so problematic that both junior staff making the decisions133 and the senior staff134 overseeing the process do not understand it properly and are not applying it appropriately either. A joint study by the Prison Service and the Chief Inspector of Borders and Immigration found various errors in the decision-making process, both at the initial decision to detain and the reviews of continuous detention, and that the lack of access to legal advice was compounding problems with a significant minority of migrants who had been detained for over six months failing to apply for bail.135 This study is from 2012 but follow-up official reports on detention including the Shaw Review in 2016136 and the Home Affairs Committee Inquiry into Immigration Detention in 2019137 have found these problems poorly addressed: ‘Consistently, more than 50% of those detained are released back into the community. This raises questions about the initial decision to detain and is a particular concern where the individual is unsuited for detention under the Government’s own vulnerability policies’.138 As noted above, the Home Affair Committee found the government did not keep track of case law which demonstrated unlawful detention despite the fact that the compensation figures indicated that at least 100 people a year were being unlawfully detained and concluded that overall the Home Office demonstrated a ‘shockingly cavalier attitude’ to the right to liberty. Moreover, those convicted of a criminal offence more generally benefit from other human rights protections which safeguard against arbitrary detention:139 Article 6 of the ECHR provides that those in the criminal justice system must be given a fair trial. This provides a large number of significant protections including, for example, protection against bias, a right to effectively participate in the proceedings, and a presumption of innocence. Immigration decisions are not covered by this right to a fair trial at all – an issue which will be discussed at length in the next two chapters. Article 7 of the ECHR also provides that criminal

132 See, eg, A Spalding, ‘Leaving Saadi Behind? The Future of the UK’s Detained Fast Track Process’ (2016) 30 Journal of Immigration, Asylum & Nationality Law 159; HM Inspectorate of Prisons (HMIP) and ICIBI, The effectiveness and impact of immigration detention casework: A joint thematic review by HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration (December 2012) 13. 133 See, eg, S v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) para 182. 134 See, eg, Detention Action v Secretary of State for the Home Department [2014] EWCA Civ 1634, para 68. 135 HMIP and ICIBI, The effectiveness and impact of immigration detention casework (n 132). 136 S Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons: A follow-up report to the Home Office (Cm 9661, 2018). 137 House of Commons Home Affairs Committee, ‘Chapter 3’ (n 12). 138 ibid, para 67. 139 C Costello, ‘Immigration Detention: The Grounds Beneath Our Feet’ (2015) 68 Current Legal Problems 143, 157.

Any Real Protection against Arbitrariness?  65 penalties (including detention under Article 5(1)(a)) can only be imposed if the person is found guilty of committing an act or omitting to act in a way contrary to the criminal law as it stood at the time of the act or omission. These further protections thus render a necessity test unnecessary for detentions under Article 5(1)(a). Therefore, the similarity between the ease with which a state may impose postconviction detention and immigration detention is not real. There are significantly more protections afforded throughout other aspects of the criminal justice process which makes the laxer protection under Article 5(1)(a) legitimate. These protections do not exist for many immigration decisions.

C.  Defining Arbitrariness As noted earlier in this chapter, the core purpose of Article 5 is to prevent any arbitrariness in detention. It has been illustrated above that the ECtHR does not use a necessity or proportionality test when assessing whether an immigrant’s detention was arbitrary. Does the lack of these two tests still allow for a proper test of arbitrariness? The prohibition on arbitrary detention is not unique to the ECHR; it is recognised by various other international human rights institutions. The ECtHR test for the lawfulness of the detention of immigrants generally conflicts with that advocated by other international human rights institutions and instruments. In the very introduction to its guidelines the United Nations High Commissioner on Refugees (UNHCR) states that the detention of asylum seekers should be a last resort. The test used by the Human Rights Committee for arbitrariness includes a necessity and proportionality test. The views of the Inter-American Commission and Court for Human Rights also differ from the ECtHR. The UNHCR Guidelines on Detention recognise that detention must not be arbitrary.140 They state that considerations of necessity and proportionality are inherent in determining whether a detention was arbitrary or not: Arbitrariness is to be interpreted broadly to include not only unlawfulness, but also elements of inappropriateness, injustice and lack of predictability. To guard against arbitrariness, any detention needs to be necessary in the individual case, reasonable in all the circumstances and proportionate to a legitimate purpose. Further, failure to consider less coercive or intrusive means could also render detention arbitrary.141

When making these statements, the UNHCR cites cases from the Human Rights Committee (HRC), the UN body which is responsible for the application of the International Covenant on Civil and Political Rights (ICCPR). Article  9 of the ICCPR provides that no one should be subject to arbitrary detention. It has been explicitly stated that this Article encompasses situations where detention



140 UNHCR, 141 ibid.

‘Guidelines’ (n 53) Guideline 4.

66  The Right to Liberty is carried out for the purposes of immigration control.142 In Van Alphen v Netherlands,143 the HRC provided its interpretation of how arbitrary detention should be assessed: [A]rbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.144

Again, a necessity test is considered integral to an assessment of the arbitrariness of the detention. A proportionality test may also be inferred here by the fact that the HRC would look at the ‘inappropriateness’ of the detention, ie, whether detention was appropriate given the aim pursued and the effect on the detainee. The proportionality element to the assessment of arbitrary detention was explicitly recognised in a later case.145 The Organization of American States is an international organisation encompassing most of the states in North and South America.146 Two human rights instruments are relevant for this institution: the 1948 American Declaration on the Rights and Duties of Man, and the American Convention on Human Rights which has been in force since 1978. Two bodies are charged with the interpretation of these instruments: the Inter-American Commission for Human Rights, and the Inter-American Court of Human Rights. In regard to the detention of immigrants, the Commission has recommended that an individual assessment be carried out in each case, that alternatives be considered, and that states should develop a riskassessment tool to determine whether detention is necessary which is based upon a presumption of release.147 Article 7(3) of the American Convention on Human Rights also contains a prohibition on arbitrary imprisonment. The Inter-American Court has ruled that this applies to immigration detention and that such detention must be shown to be necessary.148 This conflict with various international human rights institutions is important because, as noted by the dissenting judges in Saadi: ‘The European Convention on

142 UNHRC, ‘CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons)’ 30 June 1982, No. 8. 143 HRC, Van Alphen v the Netherlands (Communication No 305/1988) (n 53). 144 ibid, para 5.8. 145 A v Australia (Communication No 560/1993) CCPR/C/59/D/560/1993 (HRC) 30 April 1997, para 9.2. 146 The Charter of the Organization of American States 1948 as amended. 147 Inter-American Commission on Human Rights, ‘Report on Immigration in the United States’ (n 53) paras 429–32. 148 Velez Loor v Panama Inter-American Court of Human Rights Series C No 218 (23 November 2010) para 171. See also Advisory Opinion OC-21/14 Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection Inter-American Court of Human Rights Series A No 21 (19 August 2014) paras 151–60.

Conclusion  67 Human Rights does not apply in a vacuum’.149 Article 53 of the Convention itself recognises the importance of other human rights instruments, it provides: Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.

While this shows that the ECtHR sets a minimum standard and contracting parties are free to provide further protections for rights, the fact that it sets the minimum bar so much lower than other human rights institutions is surely a warning indicator that the approach may be too lax.

VI. Conclusion Detention is one of the main indicators of the criminalisation of immigrants, but the lenient approach that the ECtHR takes when assessing whether the detention of an immigrant was arbitrary indicates something beyond criminalisation is occurring. The case law reveals a significant gap in protection between the immigration system and the criminal justice system. Suspected criminals detained under Article 5(1)(c) are afforded both a necessity and proportionality test when the ECtHR assesses whether their detention was arbitrary. So, the initial decision and the continuing decision to detain must be necessary and proportionate. The necessity test also requires the state to undertake an individualised assessment of the circumstances of the case and to consider alternatives to detention. Convicted criminals detained under Article 5(1)(a) are not afforded a necessity or proportionality test. Their conviction, however, must come from a competent court which operates a fair procedure and they also have the opportunity to contest their trial under Article 6 of the ECHR. They must also only be detained if their detention flows from their conviction. Immigrants on the other hand are not afforded any real protection against arbitrary detention. There is no need to show that detention be necessary and the proportionality test that is applied is not very robust. There are many problems with this approach. The difference between the test for immigration detention and pre-trial detention seems odd given their very similar goals of preventing absconding and crime occurring. If Article 5(1)(c) with its necessity and proportionality test is adequate to fulfil these goals for pre-trial detention, why does Article 5(1)(f) need to be interpreted in such a weak way? Likewise, the similarity between the test for immigration detention and post-conviction detention is undermined by the fact that post-conviction detention takes place after a process with many protections and safeguards built in. The ECtHR is out of step with many other international human rights associations on this point. Institutions such as the UNHCR, the HRC and the

149 Saadi

v United Kingdom (n 79) para 17, Joint Dissenting Opinion.

68  The Right to Liberty Inter-American Commission believe that necessity and proportionality tests are crucial when assessing whether a detention has been arbitrary. Their absence in the ECtHR’s test for immigration detention implies that there is no real protection against arbitrary detention for immigrants. This situation seems unlikely to change in the near future. Although in the past decade the ECtHR has made it much harder for states to hold children in immigration detention, this more stringent test is not being applied to adults. By taking this approach the ECtHR treats immigration detention ‘more indulgently than other forms of detention’.150 This ‘explicitly puts immigration detention in a category of its own under Article 5(1)(f) … leaving immigration detention in its own silo’.151 Making immigration detention subject to such lax standards despite the widespread use of immigration detention across Europe and its increasing association with the criminal law, indicates that immigrants are not merely being criminalised but that their human rights more generally are being undermined.



150 Costello 151 ibid.

(n 139) 147.

3 The Right to Liberty: Criminal Limb The right to a fair trial is the cornerstone of the European criminal justice system and is an expression of values such as the rule of law.1 Despite its obvious importance, this right is not being fully extended to immigrants. As discussed in the first chapter, the interweaving of immigration law and criminal law is one of the main aspects of the criminalisation phenomenon. Examples of this include the creation of immigration offences which are both administrative and criminal in nature, and the increasing use of deportation as a response to crime. This means that the line between immigration measures and punitive action which should attract criminal trial protections has become increasingly blurred. Yet the dual nature of much of immigration law in Europe, existing in both the administrative system and the criminal system, often allows the state to pick and choose whether an immigration offender will benefit from the full criminal justice system and its concurrent protections or whether he will be subject to the much laxer administrative immigration system. The European Court of Human Rights (ECtHR) has failed to properly consider this issue and has continued to apply outdated precedents which fail to take into account this new trend in immigration law. The way in which the ECtHR has approached the question of whether immigration decisions sometimes concern criminal charges indicates a lower level of scrutiny and much more deference to state classification of proceedings than that usually given by the ECtHR on issues of this nature. This failure to scrutinise is also compounded by growing literature from criminology and sociology which indicates the potential punitiveness of immigration measures.

I.  The Use of Deportation and Administrative Removal There are usually two different types of power to remove people from the state territory. Although the terminology may differ it is not unusual for European states to have distinct sets of immigration measures that distinguish between removal based on status and removal based on public policy reasons.2 In the 1 S Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart Publishing 2007) 97. 2 See, eg, in relation France: C Peyronnet, ‘France Undesirable and Unreturnable Migrants under French Law: Between Legal Uncertainty and Legal Limbo’ (2017) 36 Refugee Survey Quarterly 35;

70  The Right to Liberty: Criminal Limb United Kingdom (UK), these are administrative removal and deportation orders. Deportation is a specific type of removal which should only take place when specific grounds, usually relating to proven or suspected criminal activity, can be shown.3 A deportation order also means that the deportee cannot return to the state until the order is revoked (which it may never be).4 Administrative removal is removal taken against anyone who does not have leave to enter or remain: there is no need to show specific grounds.5 In the United Kingdom, the consequences of administrative removal used to be different from deportation orders because it used to impose no impediment on return. There is now a presumption, however, that those who have been subject to administrative removal will be refused a UK visa.6 This means that most will not be able to return to the United Kingdom if they have been removed, at least for a significant period of time. The line between deportation and administrative removal has thus become less clear now that the reality of their consequences (long-term exclusion) are essentially the same. As briefly outlined in chapter one, in many European states the use of immigration measures such as deportation and removal has become increasingly harsh with restrictive processes.7 For example, in the United Kingdom deportations used to offer more process rights than administrative removal, but since the 1980s the procedure, particularly possibilities for appeal, have been gradually been eroded8 with the UK government in 2014 introducing a policy of ‘deport first, appeal later’ which was ruled unlawful by the UK Supreme Court in June 2017.9 Administrative removal does not require any kind of judicial process in the United Kingdom prior to removal and the actual power has not changed much since the 1970s but its use has grown significantly over the past 50 years.10 These developments track with much of the rest of Europe with many states, including the United Kingdom,

Hungary: UNHCR, ‘Hungary: The deportation process including rights and legal recourse open to a permanent resident; whether marriage to a Hungarian citizen and/or having children who are Hungarian citizens would affect a deportation order’, 22 December 1999, HUN33377.E, available at: www.refworld.org/docid/3ae6ad5b3c.html; Germany: Deutsche Well, ‘Things to know about deportations in Germany’ (InfoMigrants, June 2017); Belgium: Federal Migrant Centre, ‘Repatriation, detention and deportation, 2021 Repatriation, detention and deportation | Myria’, available at: www. myria.be/en/fundamental-rights/repatriation-detention-and-deportation. 3 G Clayton, Immigration and Asylum Law, 6th edn (Oxford University Press 2006) 535. 4 Immigration Act 1971, s 5(1). 5 Immigration and Asylum Act 1999, s 10. 6 House of Commons, ‘Statement of Changes in Immigration Rules’ (HC 321, 6 February 2008) para 47, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/261554/ hc321.pdf. 7 M Savino, ‘The Right to Stay as a Fundamental Freedom: The Demise of Automatic Expulsion in Europe’ (2006) 7 Transnational Legal Theory 70; L Fekete and F Webber, ‘Foreign Nationals, Enemy Penology and the Criminal Justice System’ (2010) 51 Race & Class 1. 8 Immigration and Asylum Act 1988, s 5; UK Borders Act 2007. 9 R (on application of Kiarie v Secretary of State for the Home Department, R (on application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42. 10 Clayton (n 3) 554.

An Overview of Article 6  71 introducing automatic deportation for criminal offences and expanding powers and budgets for both deportation and removal.11 These powers have become increasingly associated with the criminal justice system and this has also blurred their distinction somewhat. The introduction of automatic deportation for a large range of criminal offences creates a substantial, clear link between the two, though deportation has not been recognised as punitive – an issue which will be discussed at length throughout this chapter. However, the extension of immigration criminal offences has also created an either/or system in some cases when it comes to deportation and removal. In other words, the difference between deportation and administrative removal is undermined by the fact that those who can be administratively removed for being ‘illegal entrants’ may have engaged in certain behaviours, such as obtaining leave by deception12 or not having an immigration document at a leave or asylum interview,13 which have been criminalised. This means they can also be subject to a criminal trial and, if convicted, may be given 12 months or more in prison rendering them liable to automatic deportation.14 There is some evidence that the immigration authorities in the United Kingdom view a criminal conviction with a prison sentence/deportation order and administrative removal as interchangeable alternatives for the same offence.15 So, immigrants may be administratively removed or convicted and deported for the same behaviour and both outcomes are very similar for the individual. The legal and human rights issues with this either/or system will be discussed in more detail below in respect to the right to a fair trial. First, however, an overview of the protections afforded by Article 6 of the European Convention on Human Rights (ECHR) is necessary to understand the gap between the criminal system and the administrative immigration system.

II.  An Overview of Article 6 Article 6 of the Convention protects the right to a fair trial in both criminal and civil cases. It reads as follows: (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable 11 M Bosworth, ‘Immigration Detention, Punishment and the Transformation of Justice’ (2019) 28 Social & Legal Studies 81; L Fekete, ‘The Deportation Machine: Europe, Asylum and Human Rights’ (2005) 47 Race & Class 64; see also ch 1. 12 They may be criminally charged under s 24A(1) Immigration Act 1971; they may be administratively removed according to s 10 Immigration and Asylum Act 1999. 13 Asylum and Immigration (Treatment of Claimants etc) Act 2004, s 2; they may be administratively removed according to s 10 Immigration and Asylum Act 1999. 14 ‘Legal Guidance: Immigration’ (Crown Prosecution Service), available at: www.cps.gov.uk/ legal/h_to_k/immigration/#deportation. 15 A Aliverti, ‘Exploring the Function of Criminal Law in the Policing of Foreigners: The Decision to Prosecute Immigration-Related Offences’ (2012) 21 Social & Legal Studies 511; A Aliverti, ‘Making

72  The Right to Liberty: Criminal Limb time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

When reading this provision, it is obvious that there are several fairly ambiguous terms such as a ‘fair … hearing’ and ‘reasonable time’. The ECtHR’s interpretation of these terms will be discussed below in order to provide a full overview of the content of this right. Before moving on to discuss terminology, it is important to be clear about the purpose of Article 6. Article 6 is only concerned with whether the national proceedings were fair and complied with its requirements. It is not the ECtHR’s role to reconsider questions of fact or the application of national laws by national courts.16 This position of the Court is called ‘the fourth instance doctrine’17 as it implies that the ECtHR is not simply a fourth court of appeal for an applicant who is unhappy with the outcome of his case. Unless the applicant’s Convention rights have potentially been infringed, the ECtHR does not have jurisdiction to hear the case.

A.  The Overall Requirements of a Fair Hearing One of the main requirements of Article  6 is that applicants are entitled to a ‘fair hearing’. This is quite a vague term and it is impossible to lay down an People Criminal: The Role of Criminal Law in Immigration Enforcement’ (2012) 16 Theoretical Criminology 417; A Aliverti, Crimes of Mobility: Criminal Law and the Regulation of Immigration (Taylor and Francis 2013). 16 Garcia Ruiz v Spain (2001) 31 EHRR 22. 17 M Dahlberg, ‘It’s Not its Task to Act as a Court of Fourth Instance: The Case of the European Court of Human Rights’ (2014) 7 European Journal of Legal Studies 78, 86.

An Overview of Article 6  73 all-encompassing list of criteria as to whether a trial has been fair or not; that must be assessed on a case-by-case basis. The ECtHR has, however, expanded on some of the essential elements of a fair hearing through its case law. This includes the right to ‘equality of arms’, the right to adversarial proceedings, the right to a reasoned decision, the right to appear in person and to participate effectively in the proceedings. The right to equality of arms essentially implies that both parties should have the opportunity to present their cases in court under conditions that do not place them at a substantial disadvantage to the other party. This right was initially inferred into the right to a fair hearing by the European Commission on Human Rights in a few early cases.18 It was first recognised as an aspect of the right to a fair hearing by the ECtHR in the case of Neumeister v Austria.19 Although the right to ‘equality of arms’ requires a fair balance between the parties, it does not mean the state must ensure absolute equality. For example, when providing legal aid in civil cases, the state does not have to use public funds to bring a litigant into complete parity with a well-off opponent.20 The ‘equality of arms’ principle is more concerned with situations where one of the parties is at a significant procedural disadvantage. For example, in the case of Makhfi v France21 the Applicant’s defence lawyer had to wait 15 hours to give his address and had to do so at 4.25 am. The ECtHR found this breached the Applicant’s right to equality of arms as his defence lawyer, the judge and the jurors would be suffering from excessive tiredness due to the length of the trial and would not be in full control of their concentration during the proceedings. The right to adversarial proceedings is related to the right to equality of arms. It provides for ‘the opportunity for the parties to have knowledge of and comment on observations filed or evidence adduced by the other party’.22 This essentially means that all relevant material should be available to both parties. The right to disclosure of evidence is not an absolute right and may be restricted to protect a public interest or individual.23 In order for the right to adversarial proceedings to be met, the parties must not only be communicated the information, but given satisfactory time to act upon it. For example, in the case of Krcmar and Others v the Czech Republic,24 the ECtHR found that reading out important evidence at trial was insufficient. The Applicants should have been given an opportunity not only to know the contents of the evidence, but to familiarise themselves with it and comment on its existence, contents and authenticity in advance. The right to a reasoned decision is an important aspect of the concept of ‘fair hearing’ but it does not mean that the Court must give a detailed account of every

18 GS

v Federal Republic of Germany App No 2804/66 (Commission Decision, 16 July 1968). v Austria (1979–80) 1 EHRR 91. 20 Steel and Morris v United Kingdom (2005) 41 EHRR 22, para 62. 21 Makhfi v France (2005) 41 EHRR 35. 22 Ruiz-Mateos v Spain (1993) 16 EHRR 505, para 63. 23 Van Mechelen and others v Netherlands (1998) 25 EHRR 647, paras 57–58. 24 Krcmar and Others v Czech Republic (2001) 31 EHRR 41. 19 Neumeister

74  The Right to Liberty: Criminal Limb argument put forward by the applicants.25 It will be violated, however, when the Court refuses to address a fundamental ground which would significantly affect the outcome of the case.26 Likewise, the right to appear in person is nuanced. Whether or not a person has the right to appear in person at their proceedings depends on the kind of proceedings. For example, in the case of Kremzow v Austria27 the Applicant who was accused of murder was refused permission to attend both his appeal against his sentence and a hearing for pleas of nullity. He complained that this breached his Article 6 rights. The ECtHR found that the refusal to allow the Applicant to attend his appeal was a breach of Article 6 since the proceedings involved an assessment of the Applicant himself.28 On the other hand, the refusal to allow the Applicant to attend his hearing for pleas of nullity was not a breach of Article 6 as he was represented by his lawyer and this hearing was mainly concerned with questions of law.29 Thus, the right to appear in person normally applies to proceedings where the individual’s character or state of mind is under examination by a court. The right to effective participation means that the conditions of the courtroom must give the parties a real opportunity to take part in the proceedings. For example, in the T and V cases,30 two 11-year-olds were accused of murder. There was significant media and public interest surrounding the cases and there was psychiatric evidence that both boys were suffering from post-traumatic stress. The Court found that the Applicants were not able to effectively participate in the proceedings.31 Thus, there had been a breach of Article 6 in those cases. There is no general formula for establishing whether or not the applicant has had the right to effectively participate in the proceedings; it is very dependent on the specific facts of the case.

B.  Other Aspects of Article 6(1) There are two more requirements that are explicitly set down in Article 6(1) that merit discussion here. These are the right to trial within a reasonable time, and by an independent and impartial tribunal or court. The first important requirement is that the fair hearing must take place within a reasonable time. The purpose of this provision is to ensure that there are no undue delays in the justice system which can prejudice the credibility or effectiveness of a trial or hearing and also to prevent the individuals concerned from suffering 25 Van de Hurk v Netherlands (1994) 18 EHRR 481, para 61; Ruiz Torija v Spain (1995) 19 EHRR 553, para 29. 26 Luka v Romania App No 34197/02 (ECtHR, 21 July 2009). 27 Kremzow v Austria (1994) 17 EHRR 322. 28 ibid, para 67. 29 ibid, para 63. 30 T v United Kingdom (2000) 30 EHRR 121; and V v United Kingdom (2000) 30 EHRR 121. 31 T v United Kingdom, ibid, para 88.

An Overview of Article 6  75 the stress of uncertainty for an unreasonable period of time.32 The term ‘reasonable time’ is vague and the court has not set any specific time limit during which a trial must take place. Instead when considering whether the amount of time that has elapsed between the beginning and conclusion of proceedings is reasonable, the court will look at all the circumstances of the case.33 When assessing the circumstances of the case, the court will look at factors such as the complexity of the case, the conduct of the applicant, the conduct of the authorities and what was at stake for the applicant in the dispute.34 The period of time the court considers starts from when the proceedings were initiated in civil cases35 and from when the accused is officially notified of an allegation of a criminal offence in criminal cases.36 The period of time will end when the final decision in the case has been given, so it will include appeals and decisions regarding damages or sentencing.37 In certain circumstances, the state will be required to make an extra effort to ensure proceedings are completed quickly.38 The second requirement of Article  6 is that the court or tribunal must be independent and impartial. In other words, it must not be or appear to be biased against one of the parties in the case. There are two elements to the impartiality and independence of a court or tribunal: (1) a subjective element, and (2) an objective element. The subjective element refers to any bias resulting from a personal conviction or belief of the judge or jury.39 The objective element of an independent and impartial tribunal refers to whether the structure or appearance of the court or tribunal may give rise to legitimate doubts regarding its impartiality and independence. For example, in Findlay v United Kingdom40 the ECtHR looked at the independence and impartiality of an army court martial. The court martial was convened by a senior officer in the defendant’s regiment. This convenor also appointed all the other judges and the prosecuting and defending officers, prepared the evidence and also had the power to overrule the court’s decision. The ECtHR found that this was not an independent or impartial tribunal.

C.  Article 6 and Criminal Trials In the above section a general overview of the right to a fair trial under Article 6(1) was given. In this section, the main focus shall be on the rights guaranteed under

32 R White and C Ovey, Jacobs, White and Ovey: The European Convention on Human Rights, 5th edn (Oxford University Press 2010) 272. 33 H v United Kingdom (1988) 10 EHRR 95; P and B v United Kingdom (2002) 34 EHRR 19, para 5. 34 H v United Kingdom, ibid, para 71. 35 Sakanovic v Slovenia App No 32989/02 (ECtHR, 13 March 2008) para 35. 36 Eckle v Germany (1983) 5 EHRR 1. 37 Crowther v United Kingdom App No 53741/00 (ECtHR, 1 February 2005). 38 H v United Kingdom (n 33); A and others v Denmark App No 20826/92 (ECtHR, 8 February 1996). 39 Salaman v United Kingdom (2000) 30 EHRR CD302. 40 Findlay v United Kingdom App No 22107/93 (ECtHR, 25 February 1997).

76  The Right to Liberty: Criminal Limb Article 6(2) and Article 6(3) which apply specifically to criminal trials. This will provide a complete picture of the rights afforded to domestic criminals when under trial. Article  6(2) ECHR provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. This means that the principle of the presumption of innocence applies in criminal trials. This principle means that members of the court should not start the trial with a preconception that the accused is guilty of the offence charged. The burden of proof in criminal trials should be on the prosecution to prove the accused is guilty. Thus, if the burden of proof is shifted from the prosecution to the defence, Article 6(2) may be violated.41 Some statutory presumptions are permissible though.42 Article 6(2) does not only look at the burden of proof in criminal cases however. When considering whether Article 6(2) has been breached, the ECtHR will also look at any prejudicial statements which are closely connected to the proceedings. These prejudicial statements can be made by the judiciary43 but also by others such as relevant public bodies such as the police, politicians and the media.44 Neither the right to remain silent nor the right not to incriminate oneself are specifically stated anywhere in Article 6; they have both been interpreted by the ECtHR as being an important part of a fair hearing for criminal trials.45 Although these rights form part of a fair hearing under Article 6(1), they are closely related to the presumption of innocence laid down in Article 6(2) and breaching one of these rights can result in a violation of Article 6(2).46 The right to remain silent and the right not to incriminate oneself are very similar rights which both serve ‘to protect the freedom of a suspect to choose whether to speak or to remain silent when questioned by the police’.47 There is, however, a slight difference between them; the right not to self-incriminate protects against ‘the threat of coercion in order to make an accused yield certain information’,48 while the right to silence prevents ‘the drawing of adverse inferences when an accused fails to testify or to answer questions’.49 41 John Murray v United Kingdom App No 18731/91 (ECtHR, 8 February 1996); Telfner v Austria (2002) 34 EHRR 7. 42 Salabiaku v France (1991) 13 EHRR 379. 43 See, eg, Minelli v Switzerland (1983) 5 EHRR 554, para 37; Garycki v Poland App No 14348/02 (ECtHR, 6 May 2007) para 66; Nerattini v Greece App No 43529/07 (ECtHR, 18 March 2009) para 23. 44 See, eg, Allenet de Ribemont v France (1995) 20 EHRR 557, para 36; Daktaras v Lithuania (2002) 34 EHRR 60, para 42; Kuzmin v Russia App No 58939/00 (ECtHR, 18 March 2010) para 62; Mustafa (Abu Hamza) v United Kingdom App No 31411/07 (ECtHR, 18 January 2011) para 39; Konstas v Greece App No 53466/07 (ECtHR, 24 May 2011) para 32. 45 See, eg, Funke v France (1993) 16 EHRR 297, para 44; Saunders v United Kingdom (1997) 23 EHRR 313, para 68. 46 Telfner v Austria (n 46). 47 European Court of Human Rights, ‘Guide on Article  6: Right to a Fair Trial (Criminal Limb)’ (Council of Europe, 2021) 23. 48 A Ashworth, ‘Self-Incrimination in European Human Rights Law – A Pregnant Pragmatism’ (2008) 30 Cardozo Law Review 751, 754. 49 ibid.

An Overview of Article 6  77 Article 6(3) provides that: ‘Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 6(3) is a long but fairly vague provision and has been the subject of many cases in the ECtHR.50 As a result, a full account of these rights would have to be incredibly detailed so this section shall attempt to merely explain the essence of each right.

i. Article 6(3)(a) Article 6(3)(a) requires everyone charged with a criminal offence to be informed of both the nature and cause of the accusation against him. The cause of the accusation refers to the acts he is alleged to have committed and the nature of the accusation refers to the legal characteristics given to the acts.51 This duty falls entirely upon the prosecution and cannot be complied with passively by making information available without specifically informing the accused.52 The accused must be informed ‘promptly’, which means in good time to prepare a defence.53 The accused must also be informed in a language which he understands so if the accused has insufficient knowledge of the language of the court, he must be provided with a translation of the communication(s).54

ii. Article 6(3)(b) Article  6(3)(b) is twofold in that it requires a person charged with a criminal offence to be given (1) adequate time and (2) adequate facilities for preparing a defence. Whether or not these rights have been violated depends on the specific

50 European Court of Human Rights, ‘Guide on Article 6’ (n 47). 51 Mattoccia v Italy (2003) 36 EHRR 47, para 59; Penev v Bulgaria App No 20494/04 (ECtHR, 7 January 2010) para 33. 52 Chichlian and Ekindjian v France (1991) 13 EHRR 553; Mattoccia v Italy (n 52). 53 See, eg, C v Italy App No 10889/84 (Commission Decision, 11 May 1988); Borisova v Bulgaria App No 56891/00 (ECtHR, 21 December 2006). 54 Brozicek v Italy (1990) 12 EHRR 371.

78  The Right to Liberty: Criminal Limb circumstances of the case.55 When assessing whether or not the accused has been given adequate time to prepare his defence, the ECtHR will look at the nature of the proceedings, how complex the case was and the stage of the proceedings.56 The right to adequate time also includes adequate time to appeal and so courts must communicate the reasons for their decisions quickly enough to allow the accused to appeal. For example, in Hadjianastassiou v Greece57 the national court read out its decision in summary on 22 November 1985 but did not disclose its full reasoning until 10 January 1986. The time limit for appealing was five days from the initial judgment (so 27 November 1985) and after that date had passed the Applicant was barred from expanding on any legal argument. The ECtHR found that this was a violation of Article 6(3)(b). The accused must also be given adequate facilities to prepare a defence. The Court has interpreted this to includes factors such as conditions of detention which allow the accused to concentrate when reading and writing,58 whether the accused had adequate access to the case file when defending himself,59 and whether the accused had adequate access to a lawyer if being represented.60

iii. Article 6(3)(c) Article  6(3)(c) contains three rights: (1) the right of the accused to defend himself; (2) the right of the accused to defend himself through legal assistance; and (3) the right of the accused to be given free legal assistance where the interests of justice require it and the accused does not have the means to pay for it himself. The right to defend oneself is not an absolute right and the accused may be compulsorily assigned a lawyer if the national courts think this is necessary for the interests of justice.61 The right to legal assistance clearly overlaps with Article 6(3)(b), discussed above and a violation of this right may be a violation of both Article 6(3)(b) and (c).62 In order to have the right to free legal assistance the applicant must show that he does not have sufficient means. This does not have to be shown beyond any reasonable doubt but some indication that he has insufficient means to pay and the absence of any clear indications to the contrary will be enough.63 The provision also states, however, that free legal assistance is only obligatory when the ‘interests of justice so require’. When considering whether the interests of justice require free legal assistance be given, the ECtHR will look

55 Huseyn and Others v Azerbaijan App No 35485/05 (ECtHR, 26 July 2011) para 175. 56 Gregacevic v Croatia App No 58331/09 (ECtHR, 10 July 2012) para 51. 57 Hadjianastassiou v Greece (1993) 16 EHRR 219. 58 Mayzit v Russia (2006) 43 EHRR 38, para 81; Moiseyev v Russia (2011) 53 EHRR 9, para 221. 59 Foucher v France (1998) 25 EHRR 234; Matyjek v Poland (2011) 53 EHRR 10; Moiseyev v Russia (n 58). 60 Goddi v Italy (1984) 6 EHRR 457; Campbell and Fell v United Kingdom (1985) 7 EHRR 165. 61 Lagerblom v Sweden App No 26891/91 (ECtHR, 14 January 2003) paras 50–51. 62 See, eg, Ocalan v Turkey (2005) 41 EHRR 45. 63 Pakelli v Germany (1984) 6 EHRR 1.

An Overview of Article 6  79 at all the facts of the case but especially the seriousness of the offence, the severity of the potential penalty, the complexity of the case, and the personal situation of the accused.64

iv. Article 6(3)(d) Article  6(3)(d) essentially provides that both the prosecution and defence must have equal rights to call and examine witnesses. There are some exceptions to this rule which hinge on two requirements: (1) there must be a good reason for the non-attendance of witnesses, and (2) when a conviction is based solely or to a decisive extent on the evidence of a witness who the defence has not had the opportunity to examine then this may be incompatible with Article 6(3)(d) if sufficient safeguards are not in place.65

v. Article 6(3)(e) Article  6(3)(e) applies to situations where the accused cannot speak or understand the language of the court. This applies not only to the oral proceedings at the hearing, but to any documentary material and pre-trial proceedings.66 The accused will still be able to enforce this right even if he is represented by a lawyer who speaks and understands the language. In Cuscani v United Kingdom,67 the Applicant was accused of tax offences. The Applicant’s counsel informed the judge that the Applicant’s English was poor and the judge adjourned the proceedings. The judge directed that the accused be assisted by an interpreter but at the next hearing the interpreter failed to show up. The Applicant’s counsel told the judge that the accused’s brother was present and had quite good English and they could ‘make do and mend’. The judge agreed to go ahead with the hearing. This violated the accused’s rights under Article 6(3)(e).

D.  The Concept of a Criminal Charge Finally, it is important to note that to benefit from these rights, the proceedings need to be classified by the Court as concerning a ‘criminal charge’. The Court has held that the term ‘criminal charge’ is an autonomous concept.68 This means that its definition is independent of any meaning given to it in domestic legal systems. A ‘charge’ refers to the ‘official notification given to an individual by the competent 64 See, eg, Quaranta v Switzerland App No 12744/87 (ECtHR, 24 May 1991); Benham v United Kingdom (1996) 22 EHRR 293; Stanev v Bulgaria (2012) 55 EHRR 22. 65 Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23. 66 Kamasinski v Austria (1991) 13 EHRR 36, para 74. 67 Cuscani v United Kingdom (2003) 36 EHRR 2. 68 Engel v Netherlands (1979–80) 1 EHRR 647.

80  The Right to Liberty: Criminal Limb authority of an allegation that he has committed a criminal offence … a definition that also corresponds to the test whether the situation of the [suspect] has been substantially affected’.69 In Engel and Others v Netherlands,70 the ECtHR laid down three criteria that it would look at when considering whether the criminal limb of Article 6 applied to the proceedings. These are: (1) the classification of the proceedings in national law; (2) the nature of the offence; and (3) the severity of the penalty that the individual may incur. The first of these criteria is supposed to carry little weight as the term is supposed to be autonomous. As the Court stated in Engel: [I]t is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.71

Therefore, this criterion will only be decisive for the applicability of Article 6 where the national law does classify the proceedings as criminal. The second criterion carries more weight.72 When looking at it, the Court will take several factors into account, such as: (1) whether the offence can be committed by the public generally or only by specific groups;73 (2) whether the proceedings were brought by a public authority with statutory powers of ­enforcement;74 (3) whether the rule’s purpose is punitive or a deterrent;75 (4) if the imposition of the penalty depends on a finding of guilt;76 and (5) whether the misconduct accused is usually classified as criminal in other European states.77 When considering the third criterion the Court will look at the maximum penalty that may be imposed for the misconduct in question.78 The second and third criteria do not have to be considered cumulatively; one may be decisive for the Court.79 If neither is decisive on its own, however, then the Court may also consider them cumulatively.80

69 Deweer v Belgium (1979–80) 2 EHRR 439, para 46; Neumeister v Austria (n 19) para 18; Eckle v Germany (n 36) para 73. 70 Engel v Netherlands (n 68). 71 ibid, para 82. 72 Benham v United Kingdom (n 64) para 56; Jussila v Finland [GC] (2007) 45 EHRR 39, para 38. 73 Bendenoun v France (1994) 18 EHRR 54, para 47; Benham v United Kingdom (n 64) para 56; Ezeh and Connors v United Kingdom (2004) 39 EHRR 1, para 103. 74 Benham v United Kingdom (n 64) para 56. 75 Ozturk v Germany (1984) 6 EHRR 409, para 53; Bendenoun v France (n 73) para 47; Ezeh and Connors v United Kingdom (n 73) para 102. 76 Benham v United Kingdom (n 64) para 56. 77 Ozturk v Germany (n 75) para 53. 78 Campbell and Fell v United Kingdom (n 60) para 72; Ezeh and Connors v United Kingdom (n 73) para 120. 79 Ozturk v Germany (n 75) para 54; Lutz v Germany (1988) 10 EHRR 182, para 55. 80 Bendenoun v France (n 73) para 47.

The Applicability of Article 6 to Immigration Decisions  81 Therefore, whether or not proceedings are covered by the criminal limb of Article 6 is determined by reference to the Engel criteria.81 This seems relatively straightforward but in the immigration context the Court does not appear to refer to the Engel criteria when it is alleged that an immigration decision really concerns a criminal charge. In the below two sections, the Court and the Commission’s reasonings shall be explored.

III.  The Applicability of Article 6 to Immigration Decisions The above two sections have detailed the various rights and protections covered by Article 6. In this section, their applicability to immigration decisions will be discussed. When the Convention system was first set up, two organs were created to protect human rights – the European Court of Human Rights and the European Commission of Human Rights. Under former Articles 24 and 25 of the ECHR, applications concerning alleged human rights violations could be received by the Commission. The Commission would consider whether the application was admissible; if it declared it inadmissible then the application would go no further. This is important because much of the case law on Article 6 and immigration decisions that will be discussed came from the Commission rather than the Court. The definition of certain terms in Article 6 needs to be discussed. When examining the content of Article  6, it is important to remember that it only applies to proceedings which concern the determination of ‘civil rights and obligations’ or ‘criminal charges’ as discussed above. The way in which the Commission and the Court have considered what the term ‘criminal charge’ means in respect of immigration decisions will be examined below. This is necessary to understand the problematic approach that both the Commission and subsequently the Court have taken towards whether immigration decisions concern the determination of criminal charges.

A.  Commission Cases on Immigration Decisions as Determining Criminal Charges The first situation where an immigration decision may really concern a criminal charge is when a person is being deported because they are alleged to have committed offences classed as criminal under domestic law. This was the situation in Agee v United Kingdom which came before the Commission in the 1970s.82 The Applicant had previously been employed by the US Central Intelligence Agency (CIA).

81 Engel 82 Agee

v Netherlands (n 68). v United Kingdom App No 7729/76 (Commission Decision, 17 December 1976).

82  The Right to Liberty: Criminal Limb He had moved to the United Kingdom and published a critical book on his work for the CIA in South America. He subsequently began work on a book about the CIA’s operation in other countries. The Applicant travelled a lot for research and was widely consulted by journalists, researchers and academics of various nationalities. In 1976, the Secretary of State made a deportation order against the Applicant on national security grounds. The grounds for this were listed on the deportation order, which stated that the Applicant: (a) has maintained regular contacts harmful to the security of the United Kingdom with foreign intelligence officers, (b) has been and continues to be involved in disseminating information harmful to the security of the United Kingdom; and (c) has aided and counselled others in obtaining information for publication which could be harmful to the security of the United Kingdom.

The Applicant vigorously denied these allegations, but he was not brought to criminal trial. Instead, he was told he would simply have an immigration hearing during which he would not be entitled to know the details of the allegations against him or to have legal representation and would not have the opportunity to cross-examine any witnesses. He argued that the grounds for his deportation were allegations of criminal offences under the Official Secrets Acts, therefore the proceedings concerned the determination of a criminal charge and Article 6 should apply. The Applicant further argued that, in this context, deportation was clearly being used as a penal measure. The Commission, however, found that Article 6 did not apply: The question remains, however, whether in the present case the decision involved the determination of a criminal charge against the applicant. Whilst no specific allegations of criminal conduct have been made against him, it is implied at least that the Home Secretary’s decision is based on information that he has been guilty of criminal conduct. However this does not, in the Commission’s opinion, bring the decision within the penal sphere, since deportation constitutes a procedure completely separate from criminal prosecution or conviction. It cannot, as the Commission has already observed, normally be looked on as a penalty.83

This was the only reasoning that the Commission provided for denying the applicability of Article 6. This reasoning was used again in the case of Zamir v United Kingdom.84 In this case the Applicant applied for an entry certificate to leave Pakistan and join his father in the United Kingdom. He was over 18 at the time, but UK law allowed an unmarried fully dependent adult under 21 to be classed as still part of the family unit and he was granted leave to enter the United Kingdom. Some weeks after he filled in the initial paperwork for his entry to the United Kingdom, the Applicant’s mother arranged a marriage for him in Pakistan. This had the effect that when the Applicant entered the United Kingdom, he was a married man.

83 ibid,

para 29. v United Kingdom (1983) 5 EHRR CD274.

84 Zamir

The Applicability of Article 6 to Immigration Decisions  83 The Applicant’s wife and newborn son applied for an entry certificate to join the Applicant. The UK immigration authorities then brought the Applicant in for interview regarding his wife’s application for entry. The Applicant had not been asked if he was married upon his entry to the United Kingdom but had not volunteered the information either. When asked how he could be considered dependent on his father when he was married with a son, the Applicant admitted that he had entered the United Kingdom to find work for himself and his wife. Following this interview, the immigration authorities concluded that, because of his concealment of the fact that he was married, the Applicant’s basis for entering the United Kingdom was nullified and so he was an illegal entrant. The Applicant was held in detention and then deported to Pakistan. He argued that the immigration proceedings which led to his removal breached Article 6 as the finding that he was an ‘illegal entrant’ was a determination of a criminal charge under sections 24–26 of the Immigration Act 1971 which provided that illegal entry was an offence punishable by six months’ imprisonment or a fine. The Commission, however, again found that Article 6 was not applicable: The Commission notes that the applicant was removed from the United Kingdom as an illegal entrant on the basis that he had gained entry into the country by deception. He was not formally charged with any criminal offence under SS 24–27 of the 1971 Act. It was considered by both the authorities and the courts that his leave to enter the country was nullified by his failure in his duty of candour, so that he became an illegal entrant in breach of the immigration laws under S 33(I) of the Act. In these circumstances the Commission is of the opinion that the administrative process leading to his removal does not involve the determination of a criminal charge. Nor can his removal be regarded as a disguised criminal penalty. It follows therefore that Article  6 is not applicable in the present case.85

In both of these case the Commission seems to accept that, because the state did not explicitly press criminal charges, the proceedings at hand did not concern the determination of a criminal charge. The issue of immigration decisions and their relationship to criminal charges lay dormant for many years until the Maaouia case came before the Court in 2000.86

B.  The Court’s Decision in Maaouia v France The Applicant in Maaouia87 was a Tunisian national living in France. In 1988 he was convicted of armed robbery and armed assault with intent by the French courts. He was released from prison in April 1990 and the Minister of the Interior made an order of deportation against him in August 1991. The Applicant was not aware that this deportation order had been made until it was served on him in

85 ibid,

164.

86 Maaouia 87 ibid.

v France (2001) 33 EHRR 42.

84  The Right to Liberty: Criminal Limb October 1992. He refused to travel to Tunisia and was prosecuted for refusing to comply with a deportation order; he was sentenced to imprisonment for one year and a 10-year ban from French territory. He was subsequently able to get the initial deportation order quashed through judicial review as he had not been given any notice requiring him to appear before the Deportation Board. As the deportation order was invalid, the Applicant sought the rescission of the 10-year ban. He applied for its rescission in February 1994 but this was not granted until January 1998. The Applicant argued that the length of time taken to make this decision violated his rights under Article 6. The French government argued that no civil rights or obligations were at stake as the measure concerned public order and that deportation and exclusion orders do not concern criminal charges so Article 6 did not apply. The government heavily emphasised the Commission’s previous case law on this matter when making its arguments. The Court began its judgment by emphasising that ‘civil rights and obligations’ and ‘criminal charges’ are autonomous concepts and cannot be interpreted only on the basis of national classification. It then noted that this was the first time the Court had been asked to examine the applicability of Article 6 to alien expulsions but that the Commission had expressed a consistent opinion in the past that decisions concerning an alien’s right to stay in a country of which he is not a national do not entail ‘civil rights and obligations’ nor ‘criminal charges’ within the meaning of Article 6. The Court then considered whether immigration decisions could be classed as proceedings concerning civil rights and obligations and found that they could not (this reasoning will be discussed at length in chapter four). The Court next went on to consider whether the proceedings could be said to involve the determination of a criminal charge – the ban from France for 10 years was a result of a criminal conviction for refusing to comply with a deportation order. The Court noted that exclusion orders are not classed as criminal charges in France or in the Contracting Parties to the ECHR generally. The Court also found that such orders are often made by administrative authorities as well as by criminal courts and that they constitute a special preventative measure for immigration control. [O]rders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order’s characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not classified as criminal within the member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6 § 1.88

88 ibid,

para 39.

The Applicability of Article 6 to Immigration Decisions  85 The Court thus concluded: The fact that they [the immigration measure] are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either.89

Therefore, the Court bases its opinion that immigration decisions do not concern criminal charges on the fact that states usually do not class exclusion orders as criminal. This is completely at odds with the notion that the way in which states classify proceedings has very little weight in the assessment of whether a criminal charge is at stake. The fact that administrative authorities carry such proceedings out is also dependent on state classification of the proceedings. This reasoning can be seen as a ‘reversal of the ECtHR’s long-established independence regarding the autonomous concepts within Article 6’.90 In this case the French government explicitly mentioned that the purpose of the measure was to act as a deterrent but the Court did not even address this.91 This is odd because the Court has found on several occasions that a measure which has the purpose of deterrence indicates a criminal charge.92 The Court also does not consider the severity of the measure at hand which again seems odd given the importance of the third Engel93 criterion. The Court therefore found that ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention’.94 It held by 15 votes to two that Article 6 did not apply in this case. The Court’s decision in Maaouia still stands.95 Immigration decisions do not concern the determination of civil rights and obligations96 or criminal charges97 so Article 6 does not apply to them. However, Maaouia was not the complete end to the saga: two further cases have touched on the issue of immigration measures as punitive with more depth.

C.  The Court’s Decision in Uner and Gurguchiani In the case of Uner v Netherlands,98 the Applicant was a Turkish national who had moved to the Netherlands when he was 12 in 1981. He had a Dutch partner 89 ibid. 90 I Bryan and P Langford, ‘Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights’ (2010) 79 Nordic Journal of International Law 457, 468. 91 Maaouia v France (n 86) para 29. 92 Ozturk v Germany (n 75) para 53; Bendenoun v France (n 73) para 47; Ezeh and Connors v United Kingdom (n 73) para 102. 93 Engel v Netherlands (n 68). 94 ibid, para 40. 95 Maaouia v France (n 86) para 38. 96 European Court of Human Rights, ‘Guide on Article 6’ (n 47) 11. 97 ibid, 9. 98 Uner v Netherlands (2007) 45 EHRR 14.

86  The Right to Liberty: Criminal Limb and two sons with that partner. In 1994, having already committed several other violent offences, he was found guilty of manslaughter and assault for shooting two men. He was sentenced to seven years in prison and in 1997 his Dutch residence permit was rescinded in light of his criminal record and was given a 10-year exclusion order preventing him from returning to the Netherlands for at least 10 years. The primary argument of the Uner case revolved around whether the exclusion order and the revocation of his residence permit were compatible with Article 8 of the ECHR which protects the right to a private and family life with the Grand Chamber ultimately deciding that there was no violation of Article 8. However, the case also touched on the issue of immigration measures as punitive. The Applicant initially argued that withdrawal of his residence permit and the imposition of an exclusion order were a ‘second punishment’ and made complaints that this violated Article 6 (the right to a fair trial) and Article 4 of Protocol No 7 to the Convention (the right not to be tried or punished twice). These arguments were declared inadmissible by the Chamber99 with the Court simply stating that Article 6 does not apply to immigration decisions, citing Maaouia and dismissing the Protocol 7 complaint on the grounds that the Netherlands had not ratified it. Despite the admissibility decision, several judges and parties to the Grand Chamber judgment discussed this issue. For example, the German government, intervening as a third party, argued that expulsion orders are not punishments because they are ‘aimed at guaranteeing public safety in the future without the intention of inflicting a punishment’.100 The Grand Chamber judgment likewise stated in its judgment that immigration measures such as removing a residence permit or imposing an exclusion order after a migrant has been convicted of a criminal offence does not constitute a double punishment generally.101 The Court reiterated the right of states to take measures to protect society and stated that such measures should be seen as ‘preventative rather than punitive in nature’.102 However, there was a significant Dissenting Opinion in this case with Judges Costa, Zupancic and Turmen strongly disagreeing with the view of the majority: [W]e believe a question of principle to be at stake, one which we would like to conclude. The principle is that of ‘double punishment’ or rather the discriminatory punishment imposed on a foreign national in addition to what would have been imposed on a national for the same offence. We do not agree with the assertion in paragraph 56 that the applicant’s expulsion was to be seen as preventative rather than punitive in nature. Whether the decision is taken by means of an administrative measure, as is this case or by a criminal court, it is our view that measures of this kind which can shatter a life or lives – even where, as in this case, it is valid at least in theory, for only ten years (quite a long time incidentally) – constitutes as severe a penalty as a term of imprisonment, if not more severe. This is true even where the prison sentence is longer but not 99 Admissibility Decision, Uner v Netherlands App No 46410/99, 26 November 2002 Court (Second Section). 100 Uner v Netherlands (n 98) para 53. 101 ibid, para 56. 102 ibid.

The Applicability of Article 6 to Immigration Decisions  87 accompanied by an exclusion order or expulsion … True, the Convention is a living instrument which must be interpreted in the light of present day conditions. But we would have liked to see this dynamic approach to case law tending towards increased protection for foreign nationals (even criminals) rather than towards penalties which target them specifically.103

This case demonstrates the authority that was bestowed on the Maaouia decision as again, there was no in-depth consideration of the Engel criteria with both the Grand Chamber and the Chamber judgment generally being content to cite Maaouia, and there was also a reiteration of the idea that immigration measures were preventative in nature but with little discussion of what this means. However, the Dissenting Opinion demonstrates that the decision to not consider the punitiveness of immigration measures was not an uncontroversial one. Soon after this case, a Chamber decision made up of an almost completely different set of judges (only Judge Zupancic and Judge Myjer had heard Maaouia or Uner) came to a very different decision. In the case of Gurguchiani v Spain,104 the Applicant was sentenced to 18 months’ imprisonment for attempted burglary. The police requested that the judge responsible issue directions for the Applicant’s removal from the country and this request was accompanied by a government decision ordering the administrative removal of the Applicant. The judge decided not to issue removal directions, however, as he thought that the enforcement of the initial sentence imposed by the judgment would be more appropriate. The state appealed and was successful; the Applicant was deported and excluded from Spain for 10 years. This deportation and exclusion order was based on a new law which provided that when an illegal immigrant in Spain was given a prison sentence of up to six years, there was an obligation to replace that sentence with deportation, save in exceptional cases. This legislation had not been in force until a year after the Applicant’s initial trial. The Applicant argued that this was retroactively applying a harsher penalty in breach of Article 7 (which prohibits the retrospective application of criminal penalties). He was successful and the Court found that there had been a violation of Article 7. The Court considered the fact that the almost automatic application of the replacement of a prison sentence with a deportation order which took away judicial discretion and the imposition of a 10-year exclusion ban when the original penalty was an 18-month prison sentence, indicated that a harsher criminal penalty was being retrospectively applied. Interestingly, the Applicant also argued that his rights under Article 6 had been breached. The Court found that Article 6 did apply here but, as it had already found a violation of Article 7, it decided not to examine the complaint under Article 6. Yet by 103 ibid, Dissenting Judgment of Judges Costa, Zupancic and Turmen, paras 16–18. 104 Gurguchiani v Spain App No 16012/06 (ECtHR, 15 December 2009) paras 40 and 47–48. This judgment is not available in English – for an English summary, see Press Release, ‘Gurguchiani v Spain, App No 16012/06: Harsher Sentence Imposed Retroactively on Convicted Illegal Immigrant’ (15 December 2009), available at: hudoc.echr.coe.int/eng-press#{“fulltext”:[“gurguchiani”],“ite mid”:[“003-2970011-3270809”]}.

88  The Right to Liberty: Criminal Limb saying that Article 6 applied, and by finding a violation of Article 7, the Court found that an immigration measure – deportation and exclusion – was tantamount to a criminal penalty. It seemed to set a precedent that where the law provides for a deportation order to replace a prison sentence following a criminal conviction, the deportation will be considered a criminal punishment. Judge Zupancic dissented but only on the matter of compensation rather than any finding in principle,105 whereas Judge Myjer and Judge Fura dissented on the ground that the prior precedents of Maaouia and Uner should have been followed and no violation of Article 7 found.106 It is notable that the Gurguchiani case is only available in French and Russian, ‘signifying that the Court does not attribute much importance to [it]’,107 and a lack of academic interest and subsequent citation has meant this case has been largely unnoticed despite its potentially transformative importance for the criminalisation of immigration.

IV.  Are Immigration Measures (Sometimes) Criminal Penalties? Given the increased overlap between criminal law and immigration law and the use of immigration measures such as deportation becoming more and more intertwined with the criminal process and criminal justice rhetoric, the approach of the Court outlined above is quite odd. First, it does not appear to be in line with the approach the Court usually takes to ‘ancillary measures’. Second, the principle set down in Gurguchiani and the rest of the case law does not appear to be logically coherent given a state’s practice of picking and choosing when to use the criminal system. Third, there is much literature from criminology and sociology which indicates that the Court is not sufficiently scrutinising the punitive aspects of deportation and removal.

A.  Immigration Measures Imposed After Conviction The first and most obvious example of a time where an immigration measure may be a criminal penalty is where a deportation order is recommended by a judge as part of a criminal conviction.108 In the United Kingdom, for example, deportation orders made in this context are classified as ‘ancillary orders’.109 105 ibid, Dissenting Judgment of Judge Zupancic. 106 ibid, Dissenting Judgment of Judges Myjer and Fura, paras 1–2. 107 M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 396. 108 Immigration Act 1971, s 6. 109 ‘Sentencing – Ancillary Orders’ (Crown Prosecution Service), available at: www.cps.gov.uk/ legal/s_to_u/sentencing_and_ancillary_orders_applications/.

Are Immigration Measures (Sometimes) Criminal Penalties?  89 Ancillary orders are not necessarily punitive but the ECtHR has found that such orders may be punitive. In Welch v United Kingdom,110 the Applicant had been convicted of several drug offences. The judge sentenced him to 22 years in prison and also imposed a confiscation order to the amount of £66,914. If he defaulted on this payment, he would serve two years in prison. The Applicant argued that the confiscation order was a retrospective criminal penalty and thus violated Article 7 of the ECHR. The Court agreed that it had to look beyond the national classification of the order to its real effects. The Court found that the application of the confiscation order to any of the proceeds of the drug offences rather than just profit pointed to punishment, as did the fact that the order could not be imposed without a conviction and that the degree of culpability of the accused was taken into account. Finally, the use of imprisonment in default of payment also indicated punishment. Thus, this was a criminal penalty and a violation of Article 7. The concept of confiscation orders as criminal penalties was confirmed in the case of Phillips v United Kingdom.111 Similarly in Hamer v Belgium,112 the ECtHR found that an order to demolish a house and restore a site to its original condition was a criminal penalty. In this case the Applicant was convicted of maintaining a house built without planning permission. She was ordered to restore the site to its former condition and demolish the house. She argued that this was a criminal penalty and that her rights under Article 6 had been violated. The government argued this was a civil measure. The Court agreed with the Applicant as the penalty was dependent on the outcome of criminal proceedings and had very serious consequences for the Applicant. In Ibbotson v United Kingdom,113 the European Commission of Human Rights found that a requirement to register with the police under the Sex Offenders Act 1997 was not a criminal penalty.114 This was because it was preventative in nature; failure to comply brought new criminal charges but did not immediately result in prison time and the severe consequences of the requirement (public rejection and abuse) stemmed not from the order itself but from the public’s reaction to the crime. Thus, not all ancillary orders are criminal penalties but what the case law described above shows is that the Court gives an in-depth analysis of the Engel criteria in such cases115 – the nature of the proceedings according to domestic law, the nature of the offence and the severity of the penalty – when considering this question. In Maaouia v France,116 when the ECtHR was deciding whether deportation orders amounted to a criminal penalty, the Court really only referred to the classification of the proceedings in national and European law without a proper consideration of 110 Welch v United Kingdom (1995) 20 EHRR 247. 111 Phillips v United Kingdom App No 41087/98 (ECtHR, 5 July 2001). 112 Hamer v Belgium App No 21861/03 (ECtHR, 27 February 2008). 113 Ibbotson v United Kingdom (1999) 27 EHRR CD332. 114 This decision was controversial, see, eg, S Easton, ‘Punishing Sex Offenders: Discrimination or Justifiable Treatment?’ (2001) 5 International Journal of Discrimination and the Law 71. 115 Engel v Netherlands (n 68) paras 82–83. 116 Maaouia v France (n 86) para 39.

90  The Right to Liberty: Criminal Limb the other two criteria which are supposed to carry more weight117 and do not have to act cumulatively.118 The severity of deportation orders, in particular, make them seem liable to be considered punitive in this context.119 Therefore, deportation orders as recommended by judges following a criminal conviction may be punitive but the ECtHR has thus far failed to give proper consideration to the relevant issues in comparison to its consideration of other ancillary orders. UK judges have found that recommending deportation orders does not constitute part of the punishment for the offender.120 The Court of Appeal did, however, note that the need for the judge to consider whether the offence was serious enough to merit deportation did point towards deportation being part of the punishment.121 This is reflected in the actual use of deportation orders by judges in criminal trials in the United Kingdom: Home Office guidance describes how judges are reluctant to recommend a deportation order unless a particularly serious offence has been committed.122 This practice is undermined by the fact that deportation is now an automatic result of certain criminal convictions,123 regardless of whether the judge recommended it or not. Indeed, the Crown Prosecution Service Guidance states: ‘In cases to which the UK Borders Act 2007 applies it is no longer necessary or appropriate to recommend the deportation of the offender concerned’.124 Thus, it is also important to address whether automatic deportations would fall into the category of ancillary orders and thus are potentially criminal penalties. Would the fact that deportation is imposed automatically, as opposed to being levied by the exercise of judges’ discretion, be relevant? Elena Larrauri and James Jacobs have argued that the difference between an automatic penalty and judicial discretion is a ‘formalistic distinction’125 implying that any legal difference between them does not reflect reality. These questions are not unique to Europe and such a situation came before the US Supreme Court in the case of Padilla v Kentucky.126 In this case the US Supreme Court found that the automatic use of deportation for non-citizen offenders in the United States made it ‘most difficult to divorce the penalty from the conviction’127 and that though it was not ‘in a strict sense a 117 Engel v Netherlands (n 68) para 82. See also Benham v United Kingdom (n 64) (1996) para 56; Jussila v Finland (n 72) para 38. 118 Ozturk v Germany (n 75) para 54; Lutz v Germany (n 79) para 55. 119 In Ibbotson for example (Ibbotson v United Kingdom (1999) 27 EHRR CD332), the Commission perceived being listed on the Sex Offenders Register as a not particularly severe measure and this was an important factor in determining the measure to be non-punitive. 120 R v Carmona 2006 EWCA Crim 508. 121 ibid, para 6. 122 Home Office, Chapter 33: ‘Working with the Police’ in Home Office Instructions and Guidance Operational Enforcement Activity, para 33.5. 123 UK Borders Act 2007, ss 32–39. 124 ‘Legal Guidance: Immigration’ (n 14). 125 E Larrauri and J Jacobs, ‘A Spanish Window on European Law’ in T Daems, D van Zyl Smit and S Snacken (eds), European Penology? (Hart Publishing 2013) 305. 126 Padilla v Kentucky 130 S Ct 1473 (2010). 127 ibid, 8.

Are Immigration Measures (Sometimes) Criminal Penalties?  91 criminal sanction … deportation is nevertheless intimately related to the criminal process’.128 This led the Supreme Court to state that deportation is ‘uniquely difficult to classify’.129 Although this case did not provide a definitive answer to whether deportation orders are punitive in that context, it did at least recognise that formal distinctions can be unsatisfactory and that deportation orders in this setting require more in-depth analysis than that undertaken by the ECtHR. If the ECtHR was to accept that a judicially imposed deportation order after a criminal conviction can be punitive, then it would be very odd for it to find that automatic deportation imposed by the state after conviction is non-punitive, especially given the Court’s repeatedly stated desire to look beyond appearances to the reality of the situation.130

B.  Immigration Measures Imposed Without Conviction It is possible then that immigration measures could be considered criminal penalties when they are imposed after a conviction. Deportation orders, however, may also be used administratively without recourse to a criminal trial where the Secretary of State declares this to be conducive to the public good.131 This decision is usually made on the basis that the deportee is involved in criminal activity.132 Thus, the deportation order is being used as a response to a crime; it just does not follow on from a criminal trial. The classification of deportation as non-punitive in this context may be disputed by reference to the case of Gurguchiani v Spain, discussed above.133 The Court ruled that, where the law provides for a deportation order to replace a prison sentence following a criminal conviction, the deportation will be considered a criminal punishment. If the individual is suspected of committing a crime and the state chooses to forgo a conviction and sentence in favour of immediate deportation, is this very different from the situation in Gurguchiani? The fact that the deportation order was imposed after a conviction in Gurgachiani is probably enough for the ECtHR to distinguish this case though, again, this seems like a formalistic distinction. 128 ibid. 129 ibid. 130 See, eg, Deweer v Belgium (n 69) para 44; Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para  38; Welch v United Kingdom (n 110) para 27; Stafford v United Kingdom (2002) 35 EHRR 32, para 64; Boulois v Luxemburg [GC] App No 37575/04 (ECtHR, 3 April 2012) para 92. 131 Immigration Act 1971, s 2A as amended by the Immigration, Asylum and Nationality Act 2006. 132 The four main grounds for the Home Secretary to exercise this power are: (1) a foreign national has been convicted of an offence; (2) a foreign national used deception to gain entry/leave to remain in the UK (a crime under Immigration Act 1971 s 24A(1), came into force 14 February 2000); (3) the foreign national promotes dangerous political or religious views (most likely a crime under the Racial and Religious Hatred Act 2006 or the Terrorism Act 2006); and (4) on national security grounds (most likely behaviour constituting a crime falling under legislation such as the Terrorism Act 2006 or the Official Secrets Act 1989) – R Stone, Textbook on Civil Liberties and Human Rights (Oxford University Press 2014) 492–94. 133 Gurguchiani v Spain (n 104) paras 40 and 47–48.

92  The Right to Liberty: Criminal Limb The Court’s case law focuses heavily on deportation but, as outlined above, there are two types of removal: deportation and removal. There are arguments that in certain circumstances removal may also be problematic and have a punitive character. As mentioned above, the criminalisation of certain immigration offences means that someone who is an illegal entrant may be subjected to either administrative removal or prosecution for an immigration offence and subsequent deportation. It is evident from the work of Ana Aliverti that the immigration authorities in the United Kingdom view a criminal conviction with a prison sentence/deportation order and administrative removal as interchangeable alternatives for the same offence.134 She quotes a UK Border Agency official: If we deal with false documents … if we can’t remove them immediately we will probably prosecute those and they to prison for that … if [immigration officers] can’t remove the person we’ve got difficulties to detain them because we find we couldn’t remove them in a reasonable period of time, we might seek to prosecute because that gives us more hold on the person and buys us the time we need.135

So, immigrants may be administratively removed or convicted and deported for the same behaviour and both outcomes are very similar for the individual. Therefore, the above arguments about substituting a criminal sentence with a deportation seems to apply to orders for administrative removal as well. There are also other situations where a criminal conviction for an offence may be bypassed in favour of another sanction. As noted by Aliverti, regulatory agencies with enforcement powers generally forgo a criminal conviction for a warning notice or threat of prosecution when an offence is committed by a business or corporation.136 The similarity of this situation to immigration law seems limited though. A criminal conviction is much worse than a warning notice, leaving the criminal sanction as a ‘worst outcome’ threat for regulators to use. In immigration law, the failure to prosecute most often results in a loss of liberty followed by deportation. Both consequences are similar to and possibly worse than the consequences of a criminal conviction (see below). This bypassing of the criminal process thus allows the authorities to impose, without conviction, a loss of liberty and exclusion from society on the immigration offender akin to (or in some accounts worse than) the consequences he would suffer had he been convicted. This does not seem very similar, on a conceptual or practical level, to a regulator giving warnings. In addition, classifying certain behaviours as both a criminal and administrative offence surely runs afoul of the Engel criteria. Even where the administrative procedure is used, the behaviour is classed as criminal in the national law. Classifying an offence as criminal is supposed to be decisive for determining whether proceedings really concern a criminal charge. It is difficult to see how the Court can justify

134 Aliverti, ‘Exploring the Function of Criminal Law in the Policing of Foreigners’ (n 15); Aliverti, ‘Making People Criminal’ (n 15) Aliverti, Crimes of Mobility (n 15). 135 Aliverti, Crimes of Mobility (n 15) 70. 136 ibid, 66–67.

Are Immigration Measures (Sometimes) Criminal Penalties?  93 allowing states to skirt the issue of fair trial rights by having a dual system in place which imposes harsh sanctions on the exact same behaviour. Thus, there are many situations where the classification of immigration decisions as falling outside the criminal sphere does not appear to reflect reality. Immigration measures imposed after criminal conviction could be categorised as criminal penalties, though given their imposition after a criminal conviction the fair trial implications are less significant. More importantly, however, immigration measures may be used as a response to criminal behaviour through the administrative immigration system without fair trial protections.

C.  A Criminological Perspective on Deportation Deportation has received somewhat less attention than immigration detention in criminological and legal literature examining punishment. It is not necessarily clear why – it is perhaps less controversial as a state power or the similarity between immigration detention and prison creates a clear comparative which deportation lacks. Despite this there are some criminological arguments that the law should be wary of taking the categorisation of deportation as a pure administrative measure at face value. Some scholars have noted the similarities between deportation and older forms of criminal punishment such as banishment.137 Banishment has been used throughout history and in many different countries as a form of punishment. Its origins can be traced as far back as Ancient Greece138 and was used in countries such as England, France and Russia into the mid-1800s and early 1900s.139 This section will consider banishment as a punishment and how similar it is to deportation. First, a very brief outline of how banishment was used to punish crimes in medieval England shall be given. Then the purpose of banishment and how this relates to deportation shall be discussed. Daniel Kanstroom provides an excellent overview of the use of banishment by England from the 1600s to the mid-1800s.140 The removal of criminals from England began in the early 1600s when James I ordered an Act entitled ‘Rogue Vagabonds and Sturdy Beggars’ be implemented which provided that ‘incorrigible or dangerous Rogues shall be banished’. In 1717, the Transportation Act

137 J Bleichmar, ‘Deportation as Punishment: A Historical Analysis of the British Practice of Banishments and its Impact on Modern Constitutional Law’ (1999) 14 Georgetown Immigration Law Journal 115; W Walters, ‘Deportation, Expulsion and the International Police of Aliens’ (2002) 6 Citizenship Studies 265; D Kanstroom, Deportation Nation (Harvard University Press 2007); G Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff Publishers 2010). 138 Walters (n 137) 268. 139 W Garth Snider, ‘Banishment: This History of Its Use and a Proposal for its Abolition under the First Amendment’ (1998) 24 New England Law Journal on Criminal and Civil Confinement 455, 463. 140 Kanstroom (n 137).

94  The Right to Liberty: Criminal Limb was brought in which was ‘an act for the further preventing of robbery, burglary and other felonies and for the more effectual transportation of felons’. This Act allowed courts to order convicts to the colonies for 14 years. The policy of shipping convicts to the United States ended in 1783 but continued in Australia until the mid-1800s, being gradually abolished between 1853 and 1864.141 Although there is an argument that transportation is slightly different from banishment as it was used as a form of labour exploitation and within the context of ‘Empire’,142 the two are undoubtedly very similar. Some proponents of transportation in medieval England did believe that it had rehabilitative effects. Sir John Fielding wrote in 1773 that transportation ‘immediately removes the evil, separates the individual from his abandoned connexions and gives him a fresh opportunity of being a useful member of society’.143 For the most part, though, the overriding view of transportation at the time was that it was an effective way of getting rid of undesirable people: ‘Its [transportation] overriding purpose was neither rehabilitation not deterrence, but ridding Britain of dangerous offenders. So long as the rights of Britons were not endangered at home, what happened to convicts abroad mattered little’.144 Transportation was experienced by many subject to it as a horrible punishment, so terrible that many convicts reportedly said that they would rather be hanged than transported a second time.145 Like deportation, then, banishment was a harsh punishment with little regard for the rehabilitation of the offender. Banishment was also used as a way to shift the costs of an undesirable person from one community to another. For example, the Poor Laws in the 1600s allowed local officials to remove beggars ‘to the next constable and so from constable to constable, till they be brought to the place whether they were born’.146 Although this applied to citizens and foreigners alike, the main aim was to return to their place of birth and make that community responsible for the individual.147 This is similar to the use of deportation to absolve the ‘host’ community of its responsibility towards the offender. Banishment then has been long used as a criminal punishment. It is obviously similar to deportation in that the punishment is to be cast out from society but it is also similar in its aims. The main aim of both deportation and banishment is to get rid of the offender, to remove him from the community. It is different from imprisonment because ‘Banishment to an institution involves the state spending resources on a location; whereas banishment from an area involves forcing an 141 Garth Snider (n 139) 463. 142 Walters (n 137) 270. 143 Kanstroom (n 137) 41. 144 R Ekrich, Bound for America: The Transportation of British Convicts to the Colonies 1718–1775 (Oxford University Press 1987) 2–3. 145 Kanstroom (n 137) 41. 146 ibid, 34. 147 L Weber and B Bowling, ‘Valiant beggars and global vagabonds: Select, eject, immobilize’ (2008) 12 Theoretical Criminology 355, 356.

Are Immigration Measures (Sometimes) Criminal Penalties?  95 economic externality upon the community he is banished to’.148 Banishment and deportation both, in effect, mean that the community no longer takes responsibility for that person. Beyond the similarity to banishment and transportation, the ‘hard treatment’ often involved in deportation also points to a potentially punitive nature. There is no one precise definition of punishment149 which of course encourages debate and disagreement as to its core or fundamental elements and what measures should or should not count as punishment. However, the idea of ‘hard treatment’ – that is that punishment should inflict pain and unpleasantness – be that physical or psychological, is a persistent theme in how punishment is defined.150 It is useful then to consider both the physical and psychological pain involved in deportation. Removal and deportation often involve violent and harsh means. The person may be reluctant to leave and have to be forcibly removed from centres, escort vehicles and onto planes or other vessels.151 Several incidents of violence pre-departure were recorded in the United Kingdom in 2004 by the Medical Foundation for the Care of Victims of Torture. There was evidence of both verbal and physical abuse, including deportees being dragged on their backs up the aircraft steps by their handcuffs and being pushed inside vans where they were punched, slapped and kicked.152 Medical Justice also released a report detailing evidence from independent medical professionals that almost 300 assaults in the United Kingdom were carried out by private escorts against failed asylum seekers between January 2004 and June 2008.153 Most of these assaults (48  per  cent) took place at the airport before the deportee was placed on a plane.154 The Inspectorate of Prisons has also witnessed some inappropriate behaviour by escort staff including threats of violence at their destination if deportees do not cooperate.155 Liz Fekete has written at length about the use of force by security services in deportation attempts.156 She reports that at least 12 people have died from heart failure, asphyxiation and a combination of panic and stress during forced

148 Garth Snider (n 139) 476. 149 The difficulty in defining punishment has recently been discussed at length by Lucia Zedner: L Zedner, ‘Penal Subversions: When is a Punishment Not Punishment, Who Decides and On What Grounds?’ (2015) 20 Theoretical Criminology 1. 150 T Brooks, Punishment (Routledge 2012) 5; J Tasioulas, ‘Punishment and Repentance’ (2006) 81 Philosophy 279, 283; RA Duff, Punishment, Communication and Community (Oxford University Press 2001) xiv–xv. 151 M Bosworth, Inside Immigration Detention (Oxford University Press 2014) 196. 152 C Granville-Chapman, E Smith and N Moloney, ‘Harm on Removal: Excessive Force Against Failed Asylum Seekers’ (Medical Foundation for the Care of Victims of Torture, 2004). 153 ‘Outsourcing Abuse: The Use and Misuse of State-Sanctioned Force During the Detention and Removal of Asylum Seekers’ (Medical Justice, 2008) 2. 154 ibid. 155 HM Inspectorate of Prisons and ICIBI, ‘Unannounced full follow-up inspection of Brook House Immigration Removal Centre 28 May–7 June 2013’, 17. 156 L Fekete, A Suitable Enemy (Pluto Press 2009); Fekete, ‘The Deportation Machine’ (n 11); L Fekete, ‘Europe’s Shame: A report on 105 deaths linked to racism or government migration or asylum policies’ (Institute of Race Relations, 2009).

96  The Right to Liberty: Criminal Limb deportation attempts.157 When carrying out a deportation, usually on a plane, various methods of ‘control’ are used by security services. Deportees may be bound head and foot, gagged with special adhesive tape or be forced to wear a special deportation helmet (a chin strap prevents the deportee from moving his lower jaw and an additional strap covers the deportee’s mouth).158 This and other violence carried out by escort staff has caused passenger and flight crew discomfort and objection. In one case, a Nigerian man was kicked, punched and had his neck twisted by immigration escorts while he was on the floor of the plane, drawing the attention of other passengers. He was then removed from the plane and arrested, sparking outrage amid the economy class passengers who had witnessed the assault and who began to riot. Twenty police officers boarded the flight to try to calm everyone down. The pilot then took the decision to remove from the flight everyone who had witnessed the scene (approximately 135 people).159 As a result of this and other situations like it, most deportations are now carried out via chartered planes staffed by police and private escorts. The flight often starts in one EU country and then stops over in another to pick up more passengers. Fekete notes the similarity between this process and the secret extraordinary rendition flights organised by the CIA.160 Due to the way these flights operate, any knowledge of mistreatment usually emerges through NGO reports or investigative journalism. Medical Justice found that a significant proportion (27 per cent) of assaults take place once the deportee is on the plane.161 They found many instances of deportees being dragged along the floor of the plane by their handcuffs, of them being punched and kicked, of escorts holding deportees’ heads or necks in painful positions and restricting their breathing with hands.162 More recently, in 2010, there were reports from the UK media, including the BBC and the Guardian, that Iraqis being deported from the UK were subject to violence on flights in at least two instances from both the UK Border Agency security staff throughout the flight and from both the UK and Iraqi officials on their arrival.163 One man interviewed stated that during the flight I took my seat belt off, the officers jumped on me and grabbed me by the neck so I couldn’t breathe … when we landed Iraqi officials came on the plane and said if anybody did not come out [voluntarily] ‘we will kick and beat you’.164

157 Fekete, ‘Europe’s Shame’ (n 157) 4. 158 ibid. 159 ‘Outsourcing Abuse’ (n 153) 33; ‘136 BA passengers removed from jet over deportee row’ Daily Mirror (7 April 2008). 160 Fekete, A Suitable Enemy (n 156). 161 ‘Outsourcing Abuse’ (n 153) 2. 162 ibid, 29–35. 163 Home Office, ‘IRAQ Bulletin: Treatment of Persons Returning to Iraq, including failed asylum seekers; the situation of internally displaced persons and the procedures to re-obtain documentation to access services and facilitate internal movement’ (16 April 2012), available at: www.refworld.org/ docid/5385a2f74.html, 1. 164 ibid, 17.

Are Immigration Measures (Sometimes) Criminal Penalties?  97 The report stated that the Iraqi officials and the UK Border Agency security staff then punched people and dragged them off the plane. Also in 2010, G4S165 escort staff killed Jimmy Mubenga by suffocating him during a removal to Angola.166 After boarding, a struggle broke out between Mr Mubenga and the G4S escort staff. He was restrained by being pushed or held down in a way that impeded his breathing for 30 to 40 minutes during which time several witnesses reported that Mr Mubenga shouted that he could not breathe and ‘they’re killing me’.167 Eventually the G4S staff noticed that Mr Mubenga had become unresponsive and paramedics were called, but Mr Mubenga was dead by the time they arrived. Even where a deportation is not violent it still has profound effects, it ‘disrupts the whole tenor of life’168 and can ‘shatter a life or lives’.169 In popular discourse, deportation is seen as returning a person to their ‘home’ and therefore issues of reintegration on return are rarely discussed. This is misleading. Deportees suffer a range of problems on return to their ‘home’ state, including economic, psychological and social trouble. The suffering of those who have lived away from their ‘home’ state since a young age is the most obvious. These people may have never visited their country of origin, may not have maintained links there, and may not speak the language. In many cases, Article 8 of the ECHR (the right to a private and family life) or domestic legislation will prevent their deportation, but this is not always the case. For example, in Shala v Switzerland170 the Applicant was a Kosovan national who had arrived in Switzerland aged seven. He had maintained virtually no links with his country of origin, had undertaken his whole education in Switzerland, and most of his friends and family lived in Switzerland. The ECtHR, however, found that deporting him to Kosovo following a string of criminal charges would not be a violation of Article 8. Thus, these deportations do occur. These sorts of deportations often cause psychological problems such as depression and post-traumatic stress.171 Without ties to their home country, many find integration difficult, especially if there is a significant ‘culture shock’ and they are socially isolated. Even if deportees do have some family or friends in the home country they may be viewed as ‘polluted’172 or ‘contaminated’173 with views, attitudes and tastes which reflect their host country rather than their country of origin. This can lead to rejection by their family or community.

165 G4S is a security services company used by the British government in a range of public services. 166 K Monaghan, ‘Inquest into the Death of Jimmy Kelenda Mubenga’ (9 July 2013). 167 Home Office, ‘IRAQ Bulletin’ (n 163) 5. 168 Fekete and Webber (n 7). 169 Uner v Netherlands (n 98) Dissenting Judgment, para O-II17. 170 Shala v Switzerland App No 52873/09 (ECtHR, 15 November 2011). 171 D Brotherton and L Barrios, ‘Displacement and Stigma: The Social and Psychological Crisis of the Deportee’ (2009) 5 Crime, Media, Culture 29. 172 S Khosravi, ‘Sweden: Detention and Deportation of Asylum Seekers’ (2009) 50 Race & Class 38, 52. 173 L Schuster and N Majidi, ‘Deportation Stigma and Re-migration’ (2015) 41 Journal of Ethnic and Migrant Studies 635, 644.

98  The Right to Liberty: Criminal Limb Although some may be able to use skills acquired in their host country to be successful in their country of origin, many deportees struggle to find work.174 The ‘home’ economy may be struggling and the automatic association of deportees with criminality reduces their attractiveness to potential employers. In some situations, the lack of links also makes finding a job difficult as the ‘home’ economy may mainly rely on a system of patronage175 and poor language skills can compound this problem. Work is ‘crucial for the integration process. It provides sustenance, structure, self-esteem opportunities and the basis for future planning’.176 Without work and without a social services system to support them, many deportees who once enjoyed a working-class or middle-class lifestyle in their host country now find themselves homeless or reliant on remittances from relatives or friends.177 In response to these difficulties, the deportees may adopt an attitude of superiority condemning their ‘home’ country as corrupt or uncivilised, making integration even harder.178 Perhaps the most difficult aspect of deportation is the separation of the deportee from his family: It is hard to express the feelings of loss and the pain of separation when our respondents realized they were being deported from the land where their spouses, children and sometimes mothers, fathers, brothers and sisters live and where the vast majority of their friendship circle remain.179

Family may not relocate with the deportee for a variety of reasons. Parents may consider their children to have much better prospects in the host state and so the spouse may remain with the children or the children may be left in the care of relatives.180 Likewise, visits to the deportee in the home state may not occur if the family fears it will have difficulty in returning to the host state. If the family knows that the economic situation in the home state is dire they may remain in the host state in order to send remittances so that the deportee can at least have some income or there may be other family members, such as elderly parents, who rely on them either in the host state or through remittances.181 Those who have lived away from their home state for a significant period of time may also have issues with reintegration. Perhaps surprisingly, even those who 174 N Majidi, An Evaluation of the UK Return and Reintegration Programme (Department for International Development, 2009) 27; D Brotherton and L Barrios, Banished to the Homeland (Columbia University Press 2011) 212. 175 Brotherton and Barrios, Banished to the Homeland (n 174) 222; Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 643. 176 Brotherton and Barrios, Banished to the Homeland (n 174) 222. 177 ibid, 160; L Schuster and N Majidi, ‘What Happens Post-Deportation? The Experience of Deported Afghans’ (2013) 1 Migration Studies 221, 231–32. 178 Brotherton and Barrios, ‘Displacement and Stigma’ (n 171) 41; Brotherton and Barrios, Banished to the Homeland (n 174) 199; Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 643–44. 179 Brotherton and Barrios, Banished to the Homeland (n 174) 193. 180 ibid, 150, 188. 181 Schuster and Majidi, ‘What Happens Post-Deportation?’ (n 177) 229–31.

Are Immigration Measures (Sometimes) Criminal Penalties?  99 have not been away for long, who have maintained close links with their country of origin and who have been deported simply because of their irregular status may also suffer reintegration problems. This mainly stems from the stigma and shame associated with deportation. The workings of European immigration policies are not well understood in many sending countries and the perception is deportees must be ‘lazy, criminal or unlucky’.182 Many deportees faced disbelieving relatives upon their return who assume that they must have been involved in drugs or other immoral activities.183 This is coupled with disappointment; migration to Europe is often a collective decision made by the family or community with the expectation that the deportee will get rich and will significantly improve his life and the life of their family/community.184 Thus, deportation ‘challenges established norms in sending states and returnees experience stigma, discrimination and shame due to discrepancies between what is socially expected and what is the actual reality’.185 It is easier to disbelieve the deportee’s stories of their experiences which threaten to ‘shatter the illusion’186 of a better life and to consider them a failure than to accept the truth. This can breed resentment from both the family/community and from the deportee and can create feelings of intense shame in the deportee, both of which can lead to social isolation and psychological problems.187 Economic troubles can also occur if a deportee is quickly returned to the country of origin. As stated above, migration to Europe is often a community or family decision. This means that the community or extended family may pool their resources, sell off precious assets or go into significant debt to finance a migration.188 In both cases, the expectation is that this investment will be quickly repaid once the migrant reaches his destination country. If he is swiftly returned though, this is obviously not the case and this can cause economic hardship. Violence may also be used against the deportee or his family if the debt cannot be repaid or because the community now resents the deportee as a failure.189 Furthermore, the stigma of deportation can also limit the opportunities of both the deportee and his family. This includes struggling to find paid work and to find 182 Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 640. 183 ibid, 642. 184 A Ellerman, ‘The Limits of Unilateral Migration Control: Deportation and Inter-State Cooperation’ (2008) 43 Government & Opposition 168; Schuster and Majidi, ‘What Happens Post-Deportation?’; Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 641. 185 M Gomes, ‘Reframing Re-entry: Considerations for Immigrant Ex-Offenders Facing Deportation’ Research Notes 90, 1, 2 quoted in Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 640. 186 Brotherton and Barrios, Banished to the Homeland (n 174) 211. 187 Brotherton and Barrios, ‘Displacement and Stigma’ (n 171) 50; Schuster and Majidi, ‘What Happens Post-Deportation?’ (n 177) 232–33; Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 643. 188 Schuster and Majidi, ‘What Happens Post-Deportation?’ (n 177) 228; Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 642. 189 Schuster and Majidi, ‘What Happens Post-Deportation?’ (n 177) 233; N Kleist and G Bob-Milliar, ‘Life after Deportation and the Migration Crisis: The Challenges of Involuntary Return’ (Danish Institute for International Studies, October 2013) 2.

100  The Right to Liberty: Criminal Limb a desirable marriage match.190 Again this can lead to resentment and social isolation even within the family. Deportation therefore can have a hugely negative effect on the deportee’s personal life, regardless of whether they have lived in the ‘host’ country for a significant period of time. It can affect the deportee socially, psychologically and economically. These effects, such as the complete removal of the deportee from society and the shame and guilt the deportee may experience on return, also indicate the type of censure usually present in criminal punishments. There is also some evidence that the difficulties of deportation are recognised as punitive by the public generally. For example, it can be argued that the general public in the United Kingdom seems to view immigration practice such as deportation as retributive. This can be shown in their outrage at the deportation of ‘good citizens’. Although the general public are usually in favour of harsh and strict immigration laws at the policy stage, when the public comes ‘face to face’ with the implementation of these policies they usually become more sympathetic.191 Antje Ellerman argues that this is because, at the policy and legislative stage, the discourse focuses on ‘politically repellent groups’192 such as criminals and ‘fake’ asylum seekers, but when the legislation is actually implemented and the public becomes aware of deportees who do not fit this image, ‘deportation begins to offend their sense of justice’.193 In other words, where the public perceives the measure to be disproportionate to the ‘offence’, then they will resist its implementation. As a result, the general public, or at least the local community, may mobilise to challenge the deportation: ‘Local schools can coordinate campaigns to halt deportation, churches can provide sanctuary, neighbours can disrupt efforts at apprehension, and local politicians, responding to a groundswell of support in their electorate, can take up an individual’s case’.194 This may alter the way in which the immigration authorities deal with a case. They may choose to take the deportee(s) in the middle of the night. When the UK Parliament’s Joint Committee on Human Rights criticised this practice, evidence was put forward that this tactic was used because the government and immigration authorities were ‘keen to avoid a situation in which the neighbours and the wider community became aware that the family was being taken into detention and potentially disrupted the process’.195 Public support for the deportee may also result in the cancellation of the deportations. For example, in 2014 the deportation of Aidah Asaba was 190 Schuster and Majidi, ‘Deportation Stigma and Re-migration’ (n 173) 641. 191 A Ellerman, ‘Street-level Democracy? How Immigration Bureaucrats Manage Public Opinion’ (2006) 29 Western European Politics 293, 296. 192 ibid, 301. 193 ibid, 302. 194 M Gibney, ‘Asylum and the Expansion of Deportation in the United Kingdom’ (2008) 43 Government & Opposition 146, 151. 195 House of Lords and House of Commons Joint Committee on Human Rights The Treatment of Asylum Seekers (Tenth Report of Session 2006–2007, HL 81-I, HC 60-I) 1, 93.

Conclusion  101 cancelled after widespread public outcry,196 and in 2021 hundreds of people gathered in Glasgow to block a Home Office van from removing two migrant men, eventually leading to their release.197 It is interesting that community support for deportees usually occurs when they demonstrate that they are ‘good citizens’ who do not conform to the stereotype of the undesirable people the public thought the legislation would apply to.198 This shows that where the individual is undesirable or ‘bad’ in some way, deportation is seen as ‘just deserts’ which indicates that the general public sees deportation as a form of punishment. Overall, then, there is much literature which points towards the idea that deportation and removal may, at least in some cases, be used and certainly be experienced as punitive. Although the literature on this issue is quite diffuse, when taken together and in conjunction with the work on immigration detention, it begins to build a picture of the potential punitiveness of immigration measures. This indicates that the ECtHR should be engaging in much greater scrutiny and consideration of how such measures are actually being used.

V. Conclusion The Court’s case law on the applicability of Article  6 to immigration decisions indicates that something beyond criminalisation is occurring. The ECtHR has found that Article 6 does not apply to immigration decisions where the grounds for the immigration measure are criminal offences and those allegations have not been proven at criminal trial. This allows states to completely bypass the criminal justice system and gives no protection to non-nationals against very severe measures. This situation shows an asymmetry of the use of the criminal law: states may make certain activities criminal offences but then bypass the need to prove these offences occurred by simply deporting or excluding a non-national. The fact that the Court has found that immigration measures are administrative even when imposed in the context of criminal proceedings shows the disparity between its case law on the concept of ‘criminal charges’ generally and its case law in the immigration context. The scrutiny of measures in the immigration context is minimal and the Court’s focus on the classification of immigration proceedings in national and European law is out of step with the rest of its case law on this point. It is possible that proper scrutiny by the ECtHR would result in immigration measures being found to be punitive, at least in some cases. This is especially important in light of much criminological and sociological literature which demonstrates the experience and use of such measures can often be linked to punitiveness. 196 Fred McConnel, ‘Home Office to review gay Ugandan woman’s deportation order’ Guardian (23  May 2014), available at: www.theguardian.com/uk-news/2014/may/23/home-office-review-ugandanlesbians-deportation-order. 197 ‘Police release men from immigration van blocking Glasgow street’ (BBC News, 13 May 2021), available at: Police release men from immigration van blocking Glasgow street – BBC News, 1. 198 Ellerman, ‘Street-level Democracy? (n 191) 296.

4 The Civil Limb of the Right to a Fair Trial The European Court of Human Rights (ECtHR) has also failed to provide full human rights protection to immigrants outside the criminalisation phenomenon. One example of this is its refusal to recognise that immigration decisions should attract any right to a fair trial at all. This is because, outside the criminal law, application of Article 6 of the European Convention on Human Rights (ECHR) is limited to proceedings concerning ‘civil rights or obligations’. As briefly noted in the last chapter, the ECtHR has found that immigration decisions do not fall under this heading but this case law does not fit well with the other case law on this point. These precedents have been barely discussed or analysed by the academic community even though much criticism can be made of this decision.1 The last significant work that considered the civil limb of the right to a fair trial and immigration decisions was published in 1997 by Pieter Boeles.2 This work provides some valuable insights into the inconsistency of the Court’s case law but it was published before the landmark ECtHR case on the point, Maaouia v France, which was decided in 2000.3 This chapter will begin with an outline of how the ECtHR has defined the concept of ‘civil rights and obligations’. It has taken a very broad approach to its interpretation, incorporating almost every other type of decision except for immigration decisions, as will be evident throughout this chapter. How the case law on the civil limb of the right to a fair trial and immigration decisions developed through the European Commission on Human Rights and the Court will be discussed in section II. This will show that, despite some promising signals, Article 6 has never been applied to immigration decisions. Section III will make three arguments against this approach. First, it will closely examine, and show the weakness of the Court’s reasoning. Second, it will suggest that the exclusion of

1 Although Professor Dembour does engage in some discussion of Article  6 and migrants, this does not include an in-depth analysis of the reasoning in the Article 6 case law: M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 355–56. 2 P Boeles, Fair Immigration Proceedings in Europe (Martinus Nijhoff Publishers 1997). 3 Maaouia v France (2001) 33 EHRR 42.

Criminalisation and Immigration Decision-Making Procedures  103 immigration proceedings from the civil limb of Article 6 is inconsistent with other case law. Third, it will discuss whether the term ‘civil rights and obligations’ has been misinterpreted or if other factors are more important.

I.  Criminalisation and Immigration Decision-Making Procedures As noted in chapter one, the criminalisation of immigration is a multifaceted phenomenon and increased criminal law and justice practices in the immigration sphere have been accompanied by a broader ‘crack down’ on immigration. This can often encompass ‘civil exclusions’4 where migrants are subjected to burdensome procedures or are denied access to many everyday activities. An example of this is some of the provisions set out in the UK Immigration Act 2014 and Immigration Act 2016 which made the opening and maintenance of a bank account, access to the NHS, renting a property and the holding of a driving licence all dependent on immigration status. These provisions interact with the criminalisation of immigration explicitly as many of these provisions were accompanied by criminal as well as civil penalties. For example, landlords who let to irregular migrants and those driving without a valid licence can face criminal conviction for these actions.5 A key aspect driving the criminalisation phenomenon have been arguments about administrative efficiency. This focus can be seen in the issues already discussed in previous chapters. For example, the rationale of an efficient system that ‘benefits those increasingly in the queue’ was put forward and accepted in cases such as Saadi6 which have profoundly affected immigration detention. Likewise, the arguments around the introduction of automatic deportation policies and revision of the prison system to create Foreign National Offender Prisons in the United Kingdom (UK) was rooted in the pursuit of administrative effectiveness.7 This focus on administrative efficiency in the immigration system has profoundly impacted the tribunal system for immigration and asylum decision-making. For example, in the United Kingdom the problematic ‘fast-track’ systems for asylum decision-making operated for years and is currently only suspended.8 As has already been noted, appeal rights have been increasingly curtailed across the

4 B Bowling and S Westenra, ‘A really hostile environment: Adiaphorization, global policing and the crimmigration control system’ (2018) 24 Theoretical Criminology 163. 5 Immigration Act 2016. 6 Saadi v United Kingdom [GC] (2008) 47 EHRR 17. 7 ‘How the deportation story emerged’ (BBC News, 9 October 2006), available at: BBC NEWS | Politics | How the deportation story emerged. 8 A Spalding. ‘Leaving Saadi Behind? The Future of the UK’s Detained Fast Track Process’ (2016) 30 Journal of Immigration, Asylum & Nationality Law 159.

104  The Right to a Fair Trial: Civil Limb immigration system with a ‘deport first, appeal later’ policy adopted by the Home Office in 2014.9 Challenging these developments has been hindered by the fact that the ECtHR does not recognise the applicability of the civil limb of Article 6, protecting the right to a fair trial, to immigration decisions as will be discussed below. Examining the lack of applicability of Article  6 is particularly relevant at the moment as recent court judgments on asylum decision processes, outside the Article 6 case law, have come under heavy criticism for limiting the right to asylum under the Refugee Convention 1951. The Grand Chamber decisions in Khlaifia v Italy10 and ND and NT v Spain11 have been heavily criticised as diluting the right to asylum. These cases did not concern Article 6, but rather the provisions in Article 4 of the Fourth Protocol to the ECHR which prohibit the collective expulsion of aliens. In Khlaifia, the Court found that there was no inherent right to individual interview in Article 4 Protocol 4 which has been criticised, including by Judge Serghides in his Dissenting Opinion, as undermining the purpose of the provision which is to protect against arbitrariness and discrimination.12 Likewise, in ND and NT the Grand Chamber found that the removal of a group of over 70 persons without identification or opportunity to explain their individual circumstances was not a violation of Article 4 Protocol 4. They did this by referring to the ‘own culpable conduct’ of the Applicants whom the Court asserted were ‘members of a group comprising numerous individuals who attempted to enter Spanish territory by crossing a land border in an unauthorized manner, taking advantage of their large numbers and in the context of an operation that had been planned in advance’ which included ‘using force’ and that the lack of individual removal decisions was their own fault. The judgment has been criticised as failing to consider the individual applicants’ actual motives or any evidence of violent conduct by the applicants and of not adequately dealing with the reality of the asylum-seeking process for Spain which relies heavily on the Moroccan authorities and the significant evidence of the racial profiling, they engage in.13 Thus, even where Convention rights do apply, they do not appear to offer the most robust protection from problematic decision-making processes and certainly do not provide the level of protection offered by Article 6.

9 And subsequently ruled unlawful: R (on application of Kiarie v Secretary of State for the Home Department, R (on application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42. 10 Khlaifia v Italy App No 16483/12 [GC] Judgment of 15 December 2016. 11 NT and ND v Spain App Nos 8675/15 and 8695/15 [GC] Judgment of 13 February 2020. 12 Khlaifia v Italy App No 16483/12 (n 10) Dissenting Opinion of Judge Serghides; D Venturi, ‘The Grand Chamber’s ruling in Khlaifia and Others v Italy: one step forward, one step back?’ (Strasbourg Observers, 10 January 2017), available at: strasbourgobservers.com/2017/01/10/the-grand-chambersruling-in-khlaifia-and-others-v-italy-one-step-forward-one-step-back/. 13 H Hakiki, ‘ND and NT v Spain: defining Strasbourg’s position on push backs at land borders?’ (Strasbourg Observers, 26 March 2020), available at: strasbourgobservers.com/2020/03/26/n-d-andn-t-v-spain-defining-strasbourgs-position-on-push-backs-at-land-borders.

An Overview of the Civil Limb of the Right to a Fair Trial  105

II.  An Overview of the Civil Limb of the Right to a Fair Trial: Civil Rights and Obligations Unlike the term ‘criminal charge’ which is interpreted using the Engel criteria,14 the Court has never laid down a universal formula for determining whether a dispute concerns a ‘civil right and obligation’. Instead, it seems to deal with this issue on an almost case-by-case basis, resulting in some inconsistencies with the Court’s case law such that an absolute definition cannot be given. Some principles can be extrapolated from the case law, however, and they will be discussed in this section. First, as with ‘criminal charge’, the ECtHR has ruled that ‘civil rights and obligations’ is an autonomous concept which cannot be interpreted solely by reference to national law. Whether or not Article 6 applies also depends on there being a dispute over a civil matter. When determining whether or not there is a dispute the Court will look beyond appearances to the ‘reality’ of the situation.15 It does not apply to civil procedures which are ‘non-contentious and unilateral’ and which do ‘not involve opposing parties’.16 In Benthem v the Netherlands,17 the ECtHR laid out certain principles that should be used to determine whether a ‘dispute’ existed: (1) the term ‘dispute’ should not be construed too technically and should be given a substantive rather than formal meaning; (2) the dispute may relate not only to the actual existence of a right, but to its scope or the manner in which it may be exercised and may concern both ‘questions of fact’ and ‘questions of law’; (3) the dispute must be genuine and of a serious nature; and (4) although the term ‘dispute’ covers all proceedings where the result is decisive for a person’s civil rights and obligations, the dispute in question must not have a tenuous connection or remote consequences to those rights or obligations. Civil rights and obligations must be the object, or one of the objects of the dispute, and the result of the proceedings must be directly decisive for such a right. If a dispute is established, the dispute must concern a right or obligation which exists in national law.18 If the authorities have some discretion in whether or not to grant the requested measure then that will be indicative that what is at stake is not a right19 but that is not always decisive.20 If a right or obligation exists, then it must be of a ‘civil’ nature in order for Article 6 to apply. This is where the case law becomes somewhat confused.

14 Engel v Netherlands (1979–80) 1 EHRR 647. 15 See Deweer v Belgium (1979–80) 2 EHRR 439; Van Droogenbroeck v Belgium (1982) 4 EHRR 443; Roche v United Kingdom (2006) 42 EHRR 30; Boulois v Luxemburg [GC] App No 37575/04 (ECtHR, 3 April 2012). 16 Alaverdyan v Armenia App No 4523/04 (ECtHR, 24 August 2010) para 35. 17 Benthem v Netherlands (1986) 8 EHRR 1. 18 Szucs v Austria (1998) 26 EHRR 310, para 32. 19 Masson and Van Zon v Netherlands (1996) 22 EHRR 491, para 51. 20 Camps v France App No 42401/98 (ECtHR, 23 November 1999); Elles and Others v Netherlands App No 12573/06 (ECtHR, 16 December 2010); Boulois v Luxemburg (n 15).

106  The Right to a Fair Trial: Civil Limb It is clear that Article 6 applies to civil litigation between private parties such as disputes relating to contract or family law. What is more complicated is whether Article 6 applies to disputes between a private party and the state. The Court first considered this question in Ringeisen v Austria.21 In this case, Ringeisen applied to the District Real Property Transactions Commission in Austria for approval of a transfer to him, by a private party, of plots of land. He was unsuccessful and appealed to the Regional Real Property Transactions Commission and was again unsuccessful. He claimed that the Regional Real Property Transactions Commission had violated his Article 6 rights as it had been biased. The Austrian government argued that Article 6 did not apply here since a dispute concerning ‘civil rights and obligations’ referred only to disputes where both parties were private. The ECtHR did not accept this: For Article  6, paragraph (1) (art  6-1), to be applicable to a case (‘contestation’) it is not necessary that both parties to the proceedings should be private persons, which is the view of the majority of the Commission and of the Government. The wording of Article 6, paragraph (1) (art 6-1), is far wider; the French expression ‘contestations sur (des) droits et obligations de caractère civil’ covers all proceedings the result of which is decisive for private rights and obligations. The English text ‘determination of … civil rights and obligations’, confirms this interpretation … The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc) are therefore of little consequence.22

The ECtHR went on to find that Ringeisen could be said to have a right to have the contract for sale approved so long as he met the domestic laws conditions for such an approval. Although the Regional Commission was applying administrative law, the outcome for the case was directly decisive for civil law relations between Ringeisen and the seller. Thus, the dispute was covered by Article 6. Since Ringeisen,23 the ECtHR has continued to hold that Article 6 can apply to ‘civil’ disputes between the state and private parties but when it will do so is quite unclear. This will be discussed in more detail below but one example will be given here. The Court has ruled that Article 6 does not apply to disputes over tax liability as this is a public law rather than a civil law issue.24 Therefore, one would think that disputes between states and individuals concerning social security would also be classed as public law and not covered by Article 6. In Feldbrugge v Netherlands,25 however, there was a dispute between an individual and the Dutch authorities over the individual’s claim to sickness benefits. The Court noted that the legislation was characterised as public law, that the insurance at issue was a compulsory scheme and that the state has assumed responsibility for social protection – all of which 21 Ringeisen v Austria (1979–80) 1 EHRR 455. 22 ibid, para 94. 23 Ringeisen v Austria (n 21). 24 Vidacar SA and Obergrup SL v Spain App No 41601/98 (ECtHR, 20 April 1999); Charalambos v France App No 49210/99 (ECtHR, 8 February 2000). 25 Feldbrugge v Netherlands (1986) 8 EHRR 425.

The Applicability of the Civil Limb of Article 6 to Immigration Decisions  107 pointed to the dispute being classed as public law. The fact that the individual’s means of subsistence had been interfered with, though, meant this right was of a personal and economic nature. The fact that the entitlement to sickness benefits was linked to the individual’s previous status as a salaried member of the working population, and the fact that the Netherlands health insurance scheme was similar to insurance schemes under the ordinary law, meant that this dispute could be characterised as civil and Article 6 did apply. More examples of this type of case law will be detailed below, but for now it is sufficient to know that the ECtHR has failed to lay down a specific set of criteria to determine whether a dispute is civil or not, making its case law unpredictable.

III.  The Applicability of the Civil Limb of Article 6 to Immigration Decisions This section will provide an overview of the case law concerning the applicability of the civil limb of Article 6 to immigration decisions. First, it will discuss the relevant European Commission on Human Rights decisions on the civil limb of Article 6 and immigration decisions to demonstrate the confused early approach to this issue before all cases where refused. This will be followed by an overview of the ECtHR case law on this point and how they largely adopted the Commission’s approach.

A.  Commission Decisions on Immigration Decisions and Article 6 The Commission first considered whether immigration decisions fell under the civil limb of Article 6 in the case of Alam and Khan.26 In this case a father (Alam) attempted to bring his son (Khan) to the United Kingdom from Pakistan. There was some confusion as to whether Khan was truly Alam’s son as Alam had two wives but had only disclosed one to the authorities. The UK authorities twice decided that Khan was not really Alam’s son and sent him back to Pakistan. The Applicants alleged that their rights under Article 8 and Article 6 had been violated. The Alam and Khan27 case was submitted at the same time as and procedurally joined by the Commission to the Singh case.28 In this case, the Applicant wished to bring his elderly father to the United Kingdom from India to live with him. Twice his father was denied entry to the United Kingdom: first, due to a mistake made in a declaration to the Indian authorities; and second because the UK authorities did

26 Alam

and Khan v United Kingdom App No 2991/66 (Commission Decision, 15 July 1967).

28 Singh

v United Kingdom App No 2992/66 (Commission Decision, 15 July 1967).

27 ibid.

108  The Right to a Fair Trial: Civil Limb not believe he was truly the Applicant’s father. He likewise argued that his rights under Article 8 and Article 6 had been violated. In both cases the Commission looked first at the claim under Article 8. For Singh29 it found that Article 8 did not apply to the facts of this case as the Applicant was an adult who had lived apart from his father for many years so the application under Article  8 was declared inadmissible. For Alam and Khan30 it accepted that there could be a violation of Article 8 here as a 13-year-old boy was being separated from his father and the Article 8 application was declared admissible. This is important because it appears that the Article 8 decision had an impact on the admissibility of the Article 6 application. In Singh31 because the Commission had ruled the application under Article  8 to be inadmissible, it found that the application under Article 6 must also be inadmissible as the situation could not be said to affect a ‘civil right’. In Alam and Khan,32 however, where the Article 8 argument was admissible the Commission found that the argument under Article 6 must also be admissible as it was possible that a breach under Article  8 could constitute a breach of a ‘civil right’. In particular it stated that the Applicants’ further complaint that they were denied a fair and public hearing before an independent and impartial tribunal for the determination of such civil rights raises questions of such complexity that their determination must depend upon an examination of the merits of the case.33

These complex issues were never examined however, because the UK government agreed a settlement with Alam and Khan before a full assessment of the merits of the case took place. The matter was thus left uncertain but the next case on the issue again hinted that Article 6 might apply to immigration decisions where Article 8 rights were at stake. In X, Y, Z, V and W v United Kingdom,34 the Applicant (X) left Mauritius and came to the United Kingdom where he was admitted for six months. His wife (Y) and two children (Z and V) were permitted to join him. After the six months had expired, he left the United Kingdom and returned to Mauritius but left his pregnant wife and two children in the United Kingdom. He attempted to return to the United Kingdom a few months later to visit his family and be present for the birth of his third child (W). He was questioned by two immigration officers and he did not disclose that his wife and children were still present in the United Kingdom as he feared they would be deported. Instead he simply said he intended to visit relatives in London for one month. He was refused entry and was detained pending his return to Mauritius. He applied for a writ of habeas corpus arguing that, under the Commonwealth Immigrants Act 1962, he could not be denied entry. This application was refused. He eventually disclosed the presence

29 ibid.

30 Alam

and Khan v United Kingdom (n 26). v United Kingdom (n 28). 32 Alam and Khan v United Kingdom (n 26). 33 ibid; Yearbook of the European Convention on Human Rights, Vol X, 478, 504. 34 X, Y, Z, V and W v United Kingdom App No 3325/67 (Commission Decision, 15 December 1967). 31 Singh

The Applicability of the Civil Limb of Article 6 to Immigration Decisions  109 of his wife and children in the United Kingdom to his solicitors, who then asked the Home Office to give X permission to enter for one month on compassionate grounds so that he may be at the birth of his son. This was granted and X was subsequently given the right of unrestricted entry into the United Kingdom. The family alleged that their Article 8 rights had been violated and that X’s rights under Article 6 had been violated. The Commission found that their application under Article 8 was inadmissible as there was nothing preventing his wife and children returning to Mauritius to be with X and that this was an especially potent argument given that they had only resided in the United Kingdom for a very short period of time. The Commission then looked at Article 6, stating: [T]he right to enter and reside in a country is determined by public law, through acts of public administration, from which it follows that the term ‘civil rights’, in Article 6, paragraph (1) does not include any such right and that therefore neither the decision to grant or refuse entry, nor the proceedings through which that decision is reached, are governed by the provisions of Article 6.35

As in Singh36 and Alam and Khan,37 the Court hinted that if the application under Article 8 was admissible, it would consider the argument under Article 6: [I]nsofar as the rights of the Applicants to live together as a family may be among the ‘civil rights’ covered by Article 6, paragraph (1) (Art 6-1), the Commission has found that the initial refusal of entry to, or continued residence in, the United Kingdom of the first Applicant did not, in all the circumstances of the case, constitute a separation of the family or an interference with those rights, by the acts of the authorities; whereas consequently, the refusal did not purport to be, and was not, a determination of any ‘civil rights’ within the meaning of Article 6.38

Thus, it seemed that Article  6 would apply to immigration decisions where the applicant’s right to a family life had been or might have been infringed. In the case of Singh, Uppal and Others39 the UK wished to deport two irregular immigrants, Mr and Mrs Uppal, who had overstayed their visa. The Uppals, their children and Mr Uppal’s parents, Mr and Mrs Singh, brought proceedings arguing that their Article 8 rights had been breached. The Commission found these arguments to be admissible. The parents also alleged that their Article 6 rights had been violated but the Commission declared that argument to be inadmissible, stating: [T]he decisions to expel the applicant parents in the present case were of an administrative order and they were made in the exercise of the discretionary powers of the immigration authorities. They did not therefore involve as such the determination of civil rights within the meaning of Article  6.1 of the Convention and, even assuming that the respective rights of grandparents, parents and children to maintain a life in common is a civil right within the meaning of that provision, the decision of the United

35 ibid;

Yearbook of the European Convention on Human Rights, Vol X, 529, 538. v United Kingdom (n 28). 37 Alam and Khan v United Kingdom (n 26). 38 ibid. 39 Singh, Uppal and Others v United Kingdom App No 8244/78 (Commission Decision, 2 May 1979). 36 Singh

110  The Right to a Fair Trial: Civil Limb Kingdom immigration authorities to expel the applicant parents does not determine such a right.40

So, Article 6 does not apply to immigration decisions even where Article 8 rights were at stake. This position was confirmed in NSV v United Kingdom.41 Apart from this early confusion, the Commission consistently refused to apply Article 6 to any immigration decision. It continuously reaffirmed its position that Article 6 does not apply, at any stage, to expulsion or deportation decisions.42 It does not matter if that expulsion or deportation concerned an application for asylum,43 or if the decision impacts on the deportee’s employment.44

B.  Rulings of the European Court of Human Rights on Immigration Decisions and the Civil Limb of the Right to a Fair Trial From 1 November 1998, the ECtHR became the only Strasbourg body to hear cases regarding alleged human rights violations and ruled on both the admissibility and the merits of cases. The first case on Article 6 and immigration decisions to come before the Court was JED v United Kingdom.45 In this case, the Court ruled that the Article 6 argument was inadmissible but did so in a way that hinted it might depart from the Commission’s position. The case concerned a national of the Ivory Coast who sought asylum in the United Kingdom. The application for asylum was rejected by the Home Secretary and the Applicant was told there was no appeal against this decision. The Applicant sought judicial review of the decision, arguing that the Secretary of State’s decision had wrongly disregarded evidence and that he should have been allowed to appeal to an independent body against the decision. The application for leave to apply for judicial review was refused by the High Court. The Applicant argued that this decision and treatment violated several Articles of the Convention including Article 6. When the Court considered his Article 6 arguments it did not instantly say that Article 6 does not

40 ibid, 157. 41 NSV v United Kingdom App No 8971/80 (Commission Decision, 5 May 1981); this position was also reconfirmed much later in Momique-Pola v Sweden (1998) 26 EHRR CD187. 42 See: Omkarananda and Divine Light Zentrum v Switzerland App No 8118/77 (Commission Decision, 19 March 1981); Bozano v France App No 9990/82 (Commission Decision, 15 May 1984); Urrutikoetxea v France App No 31113/96 (Commission Decision, 5 December 1996). 43 L v United Kingdom App No 12122/86 (Commission Decision, 16 October 1986); Kilic v Switzerland App No 12364/86 (Commission Decision, 17 October 1986); P v United Kingdom App No 13162/87 (Commission Decision, 9 November 1987); Slepcik v Netherlands and Czech Republic App No 30913/96 (Commission Decision, 2 September 1996); Kareem v Sweden App No 32025/96 (Commission Decision, 25 October 1996). 44 X v United Kingdom App No 7902/77 (Commission Decision, 18 May 1977); Saleem v United Kingdom (1998) 25 EHRR CD193. 45 JED v United Kingdom (1999) 27 EHRR CD65.

The Applicability of the Civil Limb of Article 6 to Immigration Decisions  111 apply to immigration decisions as the Commission had consistently done, instead it said: The Court does not consider it necessary in the instant case to examine whether the guarantees contained in Article 6 of the Convention apply to the impugned proceedings or whether the applicant was entitled under that Article to a court procedure to challenge the decision rejecting his renewed asylum request.46

As the Applicant had been able to seek judicial review, had been legally represented and as there was no evidence that the High Court proceedings were unfair, the Court ruled that the Article 6 argument was inadmissible. But by saying that it was not necessary in this case to consider whether the Article 6 could apply to asylum proceedings the Court indicated that, in a different case, it might reconsider the Commission’s position. The Court next had the chance to consider this issue in the Maaouia case.47 Maaouia concerned an applicant from Tunisia challenging that the length of time the French authorities took to rescind a 10-year re-entry ban to France was a violation of his right to a fair trial.48 The Court began its judgment by emphasising that ‘civil rights and obligations’ and ‘criminal charges’ are autonomous concepts and cannot be interpreted only on the basis of national classification. It then noted that this was the first time the Court had been asked to examine the applicability of Article  6 to alien expulsions, but that the Commission has expressed a consistent opinion in the past that decisions concerning an alien’s right to stay in a country of which he is not a national do not entail ‘civil rights and obligations’ nor ‘criminal charges’ within the meaning of Article 6. The Court then stated that the provisions in the Convention need to be interpreted in light of the entire Convention system, including its protocols. Article 1 of Protocol 7 to the Convention provides some procedural guarantees for the expulsion of aliens. The preamble to that Protocol refers to the need for ‘further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention’. The Court found that, taking together the preamble and the provisions of Article 1 of Protocol 7, the Contracting Parties had been aware that Article 6 did not apply to the expulsion of aliens and wished to take action in this area. The Court backed up this finding by pointing to the Explanatory Report on Protocol 7. The report referred to the Commission case law on Article 6 and immigration decisions and also to the fact that aliens lawfully on state territory benefited from rights under the ECHR such as Articles 3 and 8 but did not mention Article 6. The report stated that the purpose of Article 1 was to ensure minimum guarantees for aliens in the event of their expulsion. The Court therefore found that by adopting Article 1 of Protocol 7, the Contracting Parties clearly indicated that they did not intend to include expulsion proceedings in Article 6.

46 ibid,

para 22. v France (n 3). 48 For full facts of the Maaouia case see ch 3. 47 Maaouia

112  The Right to a Fair Trial: Civil Limb In light of this finding the Court ruled that the proceedings regarding the application for a rescission order could not constitute a proceeding concerning ‘civil right and obligations’, regardless of the consequences it may have: The fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article  6 § 1 of the Convention.49

Maaouia continues to apply to this day and all immigration decisions continue to fall outside the scope of Article 6.

IV.  Inconsistencies and Interpretations In this section, the failure of the Commission and the Court to recognise that at least some immigration decisions should be classed as a dispute concerning civil rights and obligations will be critiqued. This critique will focus on three main arguments. The first argument will consider the reliance on Protocol No 7 in Maaouia, the second will discuss how consistent this case is with the other case law, and the third will examine the argument that the majority in Maaouia misinterpreted the term ‘civil rights and obligations’.

A.  The Reliance on Protocol No 7 Maaouia was not a unanimous decision. Judges Loucaides and Traja provided a powerful Dissenting Opinion which will be referred to throughout the following sections. One of the main issues with the Maaouia judgment is the majority’s focus and heavy reliance on Protocol No 7 in its reasoning. Some of the problems with relying on this Protocol were discussed at length in the Dissenting Judgment. The judges consider the Court’s reasoning on this point to have some serious flaws. First, they point to Article 53 of the ECHR which provides: Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.

Given this provision, the judges consider it strange that the Court construed the adoption of the Protocol as a way for States to ‘clearly intimate their intention not to include those procedures [immigration decisions] within the scope of Article 6(1) of the Convention’.50 Second, the judges state that the procedural safeguards laid down in Article 1 of Protocol No 7 ‘clearly’ refer to administrative authorities and

49 Maaouia 50 ibid,

v France (n 3) para 38. para 37.

Inconsistencies and Interpretations  113 do not apply to judicial guarantees. Third, the judges believe that the aim stated in the Protocol to provide ‘further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention’ ‘cannot possibly’51 mean that procedural guarantees were provided because the beneficiaries did not receive judicial guarantees as both rights can exist simultaneously. Fourth, the judges state that the Court put too much stock in the statement that Article 1 of Protocol No 7 does not affect the interpretation of Article 6 as an endorsement of the drafters’ intention to prevent the Court developing case law on this subject. Finally, they state that the Court’s assertion that the states adopted Article 1 of Protocol No 7 because they were aware that Article 6(1) did not apply to the expulsion of aliens has no support in the text of the Protocol. The first argument made here is fairly convincing: allowing states to make limitations on the text of the Convention by adopting Protocols goes against the spirit of the Convention and Article 53. The second argument is more problematic. The judges state that Article 1 of Protocol No 7 ‘clearly’ refers to administrative authorities and not judicial guarantees, but the text of the Article only refers to ‘procedural safeguards’; it does not specifically mention that these are administrative. Also, the Explanatory Report52 states that Article  1 of Protocol No 7 does not affect the interpretation of Article 6 and that the ‘competent authority’ in paragraph (c) to the Article may be administrative or judicial. This indicates that judicial guarantees might be included in Article  1 of Protocol No 7. This also affects the third argument made by the judges that, as both judicial guarantees and administrative guarantees can coexist, the adoption of Article 1 of Protocol No 7 cannot possibly be due to the fact that Article 6 does not apply to expulsion decisions. If Article 1 of Protocol No 7 includes judicial guarantees, then it may well clash with Article 6. Moreover, the third argument is problematic as the explanatory note also refers to the Commission’s case law that the decision to deport a person ‘does not involve a determination of his civil rights and obligations or of any criminal charge against him’.53 This means that the lack of application of Article 6 to expulsion decisions could well have been the impetus behind Article 1 of Protocol No 7. The final two arguments – (4) that the Court’s construction of the statement ‘Article  1 of Protocol No 7 does not affect the interpretation of Article  6’ as an endorsement of the drafters’ intention to prevent the Court developing case law on this subject is an unreasonable assumption; and (5) that the states were not aware that Article 6 did not apply to expulsion decisions also have flaws. The fact that the statement ‘Article 1 of Protocol No 7 does not affect the interpretation of Article 6’ is made in the Explanatory Report immediately after a reference to the Commission opinion that the decision to deport a person ‘does not involve a determination of his civil rights and obligations or of any criminal charge 51 ibid, Dissenting Opinion of Judges Loucaides and Traja. 52 Council of Europe, Explanatory Report to Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No 117). 53 ibid.

114  The Right to a Fair Trial: Civil Limb against him’54 indicates that states do not want this situation to change. This also indicates that the drafters thought Article 6 did not apply to expulsion decisions and so were ‘aware’. Thus, there are problems with some of these arguments but that does not make the whole opinion wrong. Whether or not Article 1 of Protocol No 7 applies to judicial guarantees is unclear so the judges could be correct in their assertions. Nick Armstrong argues that the limited provisions in Protocol No 7 indicate that it was in fact intended to cover administrative proceedings only: The Protocol is also limited in other ways. It does not require the involvement of a judicial organ in the expulsion process; there is no provision for an oral hearing; and under para 2 of Art 1 of the Protocol, the rights are suspended when expulsion is grounded in reasons of national security. According to the Explanatory Report, ‘national security’ is of itself to be accepted as sufficient justification for an expulsion measure. That is hardly consistent with the supervisory system of the ECHR. Moreover, limitations like these may tend to support the view of the dissenting judges (Judges Loucaides and Traja) that Protocol 7 was only ever aimed at administrative procedures, not judicial ones.55

The spirit behind the fourth argument by the judges – that the Court’s construction of the statement that Article 1 of Protocol No 7 ‘does not affect’ the interpretation of Article 6, as an endorsement of the drafters’ intention to prevent the Court developing case law on this subject is an unreasonable assumption – is convincing. Although this statement is made after a reference to the Commission opinion that the decision to deport a person falls outside Article 6 and therefore indicates that states did not want this situation change, the idea that a remark in an Explanatory Report should prevent the Court from developing its case law is absurd. It gives too much weight to the Explanatory Report,56 especially when the explanatory note itself states that it ‘does not constitute an instrument providing an authoritative interpretation of the text of the Protocol’.57 Relying so heavily on Protocol No 7 was particularly strange given that not all the High Contracting Parties to the Convention had ratified it; major countries such as Germany, the Netherlands, Belgium, Turkey and the United Kingdom were not bound by the Protocol.58 Pieter Van Dijk sums up this criticism of Maaouia: It is not self-evident, to put it mildly, that for the interpretation of a provision of the Convention conclusions may be drawn from an instrument which was adopted more than thirty years later and has not yet been ratified by all the States parties to the Convention.59 54 ibid. 55 N Armstrong, ‘LAPSO, Immigration and Maaouia v United Kingdom’ (2013) 18 Judicial Review 177, 180. 56 This view is shared by Ian Bryan and Peter Langford: I Bryan and P Langford, ‘Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights’ 2010 79 Nordic Journal of International Law 457. 57 Council of Europe, Explanatory Report (n 52) para I. 58 Armstrong (n 55) 180. 59 P Van Dijk et al (eds), Theory and Practice of the ECHR, 4th edn (Intersentia 2004) 531.

Inconsistencies and Interpretations  115

B.  Consistency with Other Case Law Another issue with the Maaouia judgment relates to its consistency with other case law on the applicability of the civil limb of Article 6. The dissenting judges state that the Court has extended the reach of Article 6 to cases which ‘do not ordinarily belong to the sphere of private law’ and so the exclusion of immigration decisions is inconsistent.60 The judges refer to three cases to illustrate this point. The first is Benthem v Netherlands61 in which the Applicant had applied for a licence to bring into operation an installation for the delivery of liquid petroleum to motor vehicles. This was initially granted but the Regional Health Inspector appealed, citing the danger the installation posed to nearby houses. The Applicant argued that this claim was not based on sound technical grounds. The application for the licence was refused and so the Applicant took the case to the ECtHR, arguing that he had not been given a fair trial under Article 6. The Dutch government argued that Article  6 did not apply as an application for a licence did not concern a civil right. The Court, however, found that it did. The Court stated that the grant of the licence to which the applicant claimed to be entitled was one of the conditions for the exercise of part of his activities as a businessman. It was closely associated with the right to use one’s possessions in conformity with the law’s requirements.62

The government had argued that, if the Applicant moved his business to premises further away from homes, then he may be successful in applying for the licence, therefore his right to carry on his business as he wished was not affected. The Court decided that a change of this kind might have had adverse effects on the value of the business and of the goodwill and also on Mr Benthem’s contractual relations with his customers and his suppliers. This confirms the existence of direct links between the grant of the licence and the entirety of the applicant’s commercial activity.63

The second case referred to by the judges is Feldbrugge v Netherlands64 concerning social security and assistance, which was discussed above in section I. The third case is Lombardo v Italy65 which concerned a dispute over judges’ pensions. The Italian government argued that this was a public law dispute so Article 6 should not apply. The Court found that the Italian government was essentially acting as an employer in this context and, as an employment contract has a private law character, Article  6 should apply. The dissenting judges point out that there is a trend in terms of the Court including more and more situations in the civil

60 Maaouia

v France (n 3) Dissenting Opinion of Judges Loucaides and Traja. v Netherlands (n 17). 62 ibid, para 36. 63 ibid. 64 Feldbrugge v Netherlands (n 25). 65 Lombardo v Italy (1996) 21 EHRR 188. 61 Benthem

116  The Right to a Fair Trial: Civil Limb limb of Article  6 but that the reasoning behind these judgments appears to be ‘artificial’.66 It may be argued, however, that Maaouia is in line with the other case law on ‘civil rights and obligations’. In his Concurring Opinion in Maaouia, Judge Bratza67 considers there is a significant discretionary element in immigration law which precludes the application of Article 6. He considers this to be consistent with the Court’s case law, though he does not provide any references to case law to illustrate this point. It is clear that a level of discretion in decision-making may be an important factor for the Court in deciding whether Article 6 applies. In Boulois v Luxembourg,68 for instance, the Court focused heavily on the level of discretion afforded to the authorities over the grant of prison leave and found Article 6 did not apply. As pointed out by the dissenting judges in Boulois, however, the Court has previously stated that discretion is not decisive for determining that a procedure falls outside the civil limb of Article 6: ‘the mere fact that the wording of a legal provision affords an element of discretion does not in itself rule out the existence of a civil right’.69 If the level of discretion is the most important factor in classifying proceedings, then some immigration proceedings could still be classed as civil. As several academics have pointed out, the level of discretion in immigration proceedings (in the United Kingdom, at least) has significantly declined through developments such as the points-based system for immigrant students and workers introduced in 2007 or the prescriptive guidance on how cases involving Article 8 of the ECHR need to be decided.70 This has even by recognised in the UK Supreme Court: ‘The introduction of the points-based system has created an entirely different means of immigration control. The emphasis now is on certainty in place of discretion, on detail rather than broad guidance’.71 Asylum proceedings may be regarded as an immigration decision where little discretion is evident.72 Moreover, there is an argument that asylum proceedings are also decisive for many civil rights which are granted to recognised refugees. Under Chapters II–IV of the 1951 Geneva Convention relating to the Status of Refugees, a refugee is entitled to enjoy certain rights and benefits. For example, Chapter II requires the State of Refuge to recognise the refugee’s rights attaching to marriage and to give them equal rights with nationals concerning moveable and 66 Maaouia v France (n 3) Dissenting Opinion of Judges Loucaides and Traja. 67 ibid, Concurring Opinion of Judge Bratza. 68 Boulois v Luxemburg (n 15). 69 Lambourdiere v France App No 37387/97 (ECtHR, 2 August 2000) para 24. 70 Armstrong (n 55) 182; F Meyler and S Woodhouse, ‘Changing the immigration rules and withdrawing the currency of legal aid: The impact of LASPO 2012 on migrants and their families’ (2013) 35 Journal of Social Welfare & Family Law 55; S York, ‘Deportation of foreign offenders – a critical look at the consequences of Maaouia and whether recourse to common-law principles might offer a solution’ (2017) 31 Journal of Immigration, Asylum & Nationality Law 8. 71 Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33, para 42. 72 Armstrong (n 55) 181.

Inconsistencies and Interpretations  117 immoveable property, artistic and industrial property. Chapter III requires states to allow refugees the same rights as wage-earning employment and to practise a profession as nationals. Chapter IV provides that states must give refugees the same treatment as nationals regarding access to public relief and assistance and to social security. All of these rights may be characterised as civil rights under the Court’s current case law. Chapter II concerns rights relating to property, commercial and family law – most definitely of a private law character. When the right to enter employment is at stake, this often points to a decision being decisive for civil rights. The Court has previously found that a dispute concerning the storage of information on a criminal record could fall under Article 6 because it ‘could have resulted in restrictions on him entering certain private-sector professions or otherwise earning a living, thereby again affecting his private life’.73 In another case, the Court has found that a ban on former KGB officers from entering private employment could fall under the civil limb of Article 6 because it created ‘serious difficulties … in terms of earning a living’.74 The right to practise a profession has been repeatedly recognised by the Court as a ‘civil’ right’.75 The right to social assistance and security has also been recognised by the Court as a civil right.76 As discussed above, the Court laid down some criteria in Benthem v Netherlands77 that it would consider in determining whether the civil limb of Article 6 should apply to a situation: (1) the term ‘dispute’ should not be construed too technically and should be given a substantive rather than formal meaning; (2) the dispute may relate not only to the actual existence of a right, but to its scope or the manner in which it may be exercised, and may concern both ‘questions of fact’ and ‘questions of law’; (3) the dispute must be genuine and of a serious nature; and (4) although the term ‘dispute’ covers all proceedings where the result is decisive for a person’s civil rights and obligations, the dispute in question must not have a tenuous connection to or remote consequences for those rights or obligations. Civil rights and obligations must be the object, or one of the objects of the dispute, and the result of the proceedings must be directly decisive for such a right. Asylum proceedings meet the first, second and third criterion. Simply by applying for asylum, an individual asserts that he meets a certain set of criteria. The asylum process is a tool for the state to assess whether this is true or not. If the state finds that the person is not entitled to refugee status, then in most cases the individual will disagree with the decision. Therefore, appeals from the initial asylum process may definitely be classed as a ‘dispute’. The initial asylum procedure may also be classed as a dispute if the state attempts to disprove the asylum 73 Uzukauskas v Lithuania App No 16965/04 (ECtHR, 6 July 2010) para 37. See also Pocius v Lithuania App No 35601/04 (ECtHR, 6 July 2010). 74 Sidabras and Dziautas v Lithuania (2006) 42 EHRR 6, para 48. 75 See Konig v Germany (1979–80) 2 EHRR 170; Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1; Kraska v Switzerland (1994) 18 EHRR 188 (all concerning the right to practise medicine); H v Belgium (1988) 10 EHRR 339 (concerning the right to practise law). 76 Feldbrugge v Netherlands (n 25); Salesi v Italy (1998) 26 EHRR 187. 77 Benthem v Netherlands (n 17).

118  The Right to a Fair Trial: Civil Limb seeker’s testimony or attacks his credibility as, again, the state and the individual are in disagreement as to the ‘truth’. A refugee is someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.78

This being the case, the dispute would undoubtedly be classed as sufficiently serious and genuine for Article 6 purposes. The final criterion is that the result of the proceedings be directly decisive for ‘civil rights and obligations’. Since recognition as a refugee gives an individual access to various civil rights under the 1951 Convention, the result is decisive for their access to those rights.79 It is unlikely that the consequences of the decision could be considered too remote or tenuous to merit a classification of ‘civil’ proceedings. For example, in several cases concerning mental health the Court has found that, although such proceedings concern ‘status’, they are directly decisive for a person’s civil rights and obligations.80 Therefore asylum proceedings should be covered by the civil limb of Article 6. No applicant has so far brought a case on this particular point but the case of Panjeheighalehei v Denmark81 indicates that even in the above circumstances the Court will not find Article  6 to be applicable. The Applicant had applied for asylum in Denmark, arguing that he was wanted in Iran for his political activities. The application was refused and he was returned to Iran. On return, the Applicant claimed he was detained and subject to torture for two years. He returned to Denmark and applied for asylum again. This time the application was granted. The Applicant then wanted to bring a claim for compensation against the Danish Refugee Board for the pain and suffering he went through in Iran as a result of its initial decision not to grant him asylum. The Danish Supreme Court dismissed his claim for compensation as it found that Refugee Board decisions could not be reviewed in that way. He argued that this breached his right to a fair trial as he did not have access to court for his claim of compensation. The ECtHR, however, found that Article  6 was not applicable because although the subject matter of the Applicant’s action was private and pecuniary, ‘the proceedings were so closely connected to the subject matter of the Refugee Board’s decisions in 1999 that they cannot be distinguished from the proceedings determining decisions regarding the entry, stay and deportation of aliens’.82 This decision indicates 78 Convention Relating to the Status of Refugees 1951, Article 1. 79 G Heckman, ‘International Law and Procedural Safeguards in Deportation. Proceedings: Ahani v. Canada’ (2004) 17 Revue québécoise de droit international 81, 117–18. 80 Winterwerp v Netherlands (1979–80) 2 EHRR 387; Matter v Slovakia (2001) 31 EHRR 32; Stanev v Bulgaria (2012) 55 EHRR 22. 81 Panjeheighalehei v Denmark App No 11230/07 (ECtHR, 13 October 2009). 82 ibid.

Inconsistencies and Interpretations  119 that even when civil rights are at stake in an asylum decision, the Court will not apply Article 6.

C.  The Misinterpretation of ‘Civil Rights and Obligations’ The dissenting judges also stated the majority had misinterpreted ‘civil rights and obligations’ and construed it too narrowly. Rather, they considered ‘civil rights and obligations’ to be referring simply to ‘non-criminal’ disputes of law. The judges considered the presence of the term ‘civil’ to be an important aspect of the Court’s decision to adopt a narrower approach:83 In the past, the case law of the Commission and the Court followed a restrictive approach regarding the concept of ‘civil rights and obligations’ … This was due to the assumption that the word ‘civil’ restricted the scope of the rights and obligations intended to be covered by the judicial guarantees of Article 6 § 1.84

This may be correct as other regional human rights instruments which have incorporated immigration decisions into the right to a fair trial do not have the limiting word ‘civil’ present. The Charter of Fundamental Rights of the European Union, for example, is an instrument that is heavily based on the ECHR itself.85 Article 47 of the Charter concerns the right to a fair trial. This provision is an amalgamation of the right to a fair trial and the right to an effective remedy from the ECHR. It provides that: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

In this provision, the right to a fair trial is not confined to civil rights and obligations and thus encompasses immigration decisions. This was an explicit decision as the explanatory notes to the Charter state that ‘In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations’.86 The applicability of Article 47 to immigration decisions has been confirmed by the 83 Maaouia v France (n 3) Dissenting Opinion of Judges Loucaides and Traja. See also L Loucaides, ‘Questions of Fair Trial Under the European Convention on Human Rights’ (2003) 3 Human Rights Law Review 27, 28. 84 Maaouia v France (n 3). 85 This can be seen in Article 52(3) of the Charter which provides that, where the Charter ‘contains rights which correspond to rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention’. 86 C 303/17 Explanations Relating to the Charter of Fundamental Rights OJ C 2007 303/02.

120  The Right to a Fair Trial: Civil Limb Court of Justice of the European Union in several cases.87 Another human rights instrument where the right to a fair trial is not limited by the term ‘civil’ is the American Convention on Human Rights: Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.88

The Inter-American Court of Human Rights has found this to be applicable to immigration decisions.89 Likewise, the African Commission on Human and Peoples’ Rights has found that Article  7 of the African Charter on Human and Peoples’ Rights which provides ‘Every individual shall have the right to have his cause heard’ does apply to proceedings concerning deportation.90 The absence of the term ‘civil’, however, is not always sufficient for human rights bodies to extend the right to a fair trial to immigration decisions. Article 14 of the International Covenant on Civil and Political Rights provides for the right to a fair trial: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The term ‘civil’ is absent here, yet the Human Rights Committee has interpreted Article 14 as excluding immigration decisions.91 There is little reasoning for this decision except that the Committee seems to accept the state’s position that ‘deportation proceedings are in the realm of public law and involve the State’s ability to regulate citizenship and immigration’.92 Thus, it does not seem that the wording of the Convention text is necessarily the problem.

87 Case C-69/10 Brahim Samba Diouf [2011] ECR I-07151; Case C-411/10 and 493/10 NS [2011] ECR I-13905; Case C-277/11 MM ECLI:EU:C:2012:744; Case C-175/11 HID and BA ECLI:EU:C:2013:45; Case C-300/11 ZZ ECLI:EU:C:2013:363; Case C-383/13 MG and NR ECLI:EU:C:2013:533; Case C-249/13 Boudjlida ECLI:EU:C:2014:2431; Case C 562/13 Abdida ECLI:EU:C:2014:2453. 88 American Convention on Human Rights, Article 8. 89 Nadege Dorzema et al v Dominican Republic Inter-American Court of Human Rights Series C No 251 (24 October 2012) para 175; Pancheo Tineo Family v Bolivia Inter-American Court of Human Rights Series C No 272 (25 November 2013) paras 128–33. 90 Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme and Others v Angola African Commission on Human and Peoples’ Rights Comm No 159/96 (11 November 1997) para 20; Kenneth Good v Botswana African Commission on Human and Peoples’ Rights Comm No 313/05 (12–26 May 2010) paras 160–80. 91 PK v Canada (Communication No 1234/2003) CCPR/C/89/D/1234/2003 (HRC) 3 April 2007, para 7.5; Zundel v Canada (Communication No 1341/2005) CCPR/C/89/D/1341/2005 (HRC) 4 April 2007, para 6.8; Esposito v Spain (Communication No 1359/2005) CCPR/C/89/D/1359/2005 (HRC) 30 May 2007, para 7.6. 92 Zundel v Canada (n 91) para 4.13.

Inconsistencies and Interpretations  121 Another point made by the dissenting judges may be more relevant. They consider the limited application of Article  6 to go against the spirit of both the Article itself and the Convention as a whole. Upon examining Article 6, the judges found that its purpose is to ‘ensure, through judicial guarantees, a fair administration of justice to any person in the assertion or determination of his legal rights or obligations’.93 Therefore, the limitation of the term to only certain legal rights and obligations frustrates this aim. The judges found it particularly absurd that this right should be limited in respect of the enforcement of legal rights and obligations against the state; judicial control is particularly important to protect individuals against the powerful authorities of the state. In terms of the object and purpose of the Convention as a whole, the judges refer to the preamble of the Convention which states that it should safeguard ‘those fundamental freedoms which are the foundation of justice … in the world’ and implement the principle of ‘the rule of law’. Given this aim, the judges found it difficult to see how the Convention could be construed as not providing individuals with judicial safeguards against the state’s power. Nicholas Blake and Raza Hussain have summarised this criticism of the Maaouia majority judgment stating that it amounted to a ‘failure to promote the rule of law in the context of relations between a politically vulnerable class of individuals in their dealings with a powerful state’.94 This wariness towards broad state power is present in the case law of the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights and appears to be the most significant factor in their judgments declaring the right to a fair trial applicable to immigration proceedings. In its judgments, the Inter-American Court of Human Rights specifically referred to the vulnerable situation of migrants: [M]igrants who are undocumented or in an irregular situation have been identified as a group in a vulnerable situation because ‘they are the most vulnerable to potential or actual violations of their human rights’ and because of their situation they suffer a greater lack of protection of their rights and ‘differences in their access … to public resources administered by the State [in relation to nationals or residents]. Clearly, this situation of vulnerability has ‘an ideological dimension and occurs in a historical context that is different for each State and is maintained by de jure (inequalities between nationals and foreigners in the laws) and de facto (structural inequalities) situations’. Moreover, cultural prejudices about migrants perpetuate the situation of vulnerability, making it difficult for migrants to integrate into society. Finally, it is worth mentioning that human rights violations committed against migrants often go unpunished, inter alia, due to cultural factors that justify them, the lack of access to power structures in a given society and the legal and practical obstacles that make effective access to justice illusory.95 93 Maaouia v France (n 3) Dissenting Opinion of Judges Loucaides and Traja. 94 N Blake and R Husain, Immigration, Asylum and Human Rights (Oxford University Press 2003) 248. 95 Velez Loor v Panama Inter-American Court of Human Rights Series C No 218 (23 November 2010) para 98 referred to in Nadege Dorzema et al v Dominican Republic (n 89) para 153; Pancheo Tineo Family v Bolivia (n 89) para 128.

122  The Right to a Fair Trial: Civil Limb The Court also considered the possibility that administrative immigration measures could be used by the state in a punitive way in an attempt to control migration flows.96 In its initial judgment on immigration proceedings and the right to a fair trial, the African Commission on Human and Peoples’ Rights stated that ‘it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the Charter and international law’.97 It did not expand on this reasoning any further until Kenneth Good v Botswana,98 in which the government of Botswana argued that the expulsion of people considered security threats would require the disclosure of sensitive information, so the right to a fair trial should be suspended in such circumstances. The Court emphatically responded to this: Can a victim’s right to have his cause heard be limited or derogated upon for ‘public interest’? The answer to this is NO. The right to a fair trial, which includes the right to have one’s cause heard, to be informed of reasons and to seek appropriate remedy, is an absolute right that cannot be derogated from in any circumstance.99

The Court focused on the very broad executive power to deport and the possibility of abuse in determining that there had been a violation of the Charter: [T]he Commission stated that ‘while [it] is sympathetic to genuine attempts to maintain public peace, it must note that all too often extreme measures to curtail rights simply create greater unrest. It is dangerous for the protection of human rights for the executive branch of the government to operate without such checks as the judiciary can usually perform’. This is especially true with respect to the present communication where there is a law which gives too broad power to the executive and prohibits courts from checking the use of such broad powers. The Commission in its decisions has time and again stressed on the need of judicial oversight over executive decisions particularly on issues of deportation.100

Thus, for both the Inter-American Court and the African Commission there is a sense that individuals in immigration proceedings need to be protected from the state given the potential for abuse.101 This appears to be absent from the majority decision in Maaouia. The ECtHR’s reluctance to challenge state power when it comes to immigration issues will be discussed in more depth in chapter six.

96 Nadege Dorzema et al v Dominican Republic (n 89) para 164; Pancheo Tineo Family v Bolivia (n 89) para 132. 97 Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme and Others v Angola (n 90) para 20. 98 Kenneth Good v Botswana (n 90) paras 160–80. 99 ibid, para 175. 100 ibid, paras 175–77. 101 The Court of Justice of the European Union, on the other hand, based its reasoning on technicalities associated with EU law without any reference to state power: Case C-69/10 Brahim Samba Diouf (n 87) paras 45–50.

Conclusion  123

V. Conclusion The Court’s case law denies immigrants any rights under Article 6 against the state. As pointed out by Judges Louciades and Traja,102 this seems at odds with the very purpose of the Convention. The reasoning in Maaouia was weak, relying heavily on Protocol 7 to the Convention, which many European states have not ratified. It is also not clear whether the blanket exclusion of immigration proceedings from the civil limb of Article 6 is consistent with other case law. Most importantly, the discrepancy between the ECtHR case law on this point and some other international human rights courts reveals that the attitude taken by the Court towards state power may be the crucial element in the decision. The fact that the Court has excluded immigration procedures from the civil limb of Article 6 indicates that something beyond criminalisation is happening. Immigrants are being denied a right that is given to the general population. This denial of human rights exists outside the criminalisation phenomenon, yet it is also impacted by it. The lack of a right to a fair trial will have more of an impact on individual lives because of the harsher immigration system which accompanies criminalisation.



102 Maaouia

v France (n 3).

5 The Prohibition on Torture, Inhuman and Degrading Treatment One of the most important safeguards offered by the European Convention on Human Rights (ECHR) is the prohibition on torture, inhuman and degrading treatment or punishment contained in Article  3 of the Convention. Article  3 is an absolute right which means its protection cannot be qualified and violations cannot be justified by states on any grounds. This provision has long raised problems for states as it acts as a limitation on their ability to return non-nationals to their countries of origin. The European Court of Human Rights (ECtHR) has generally stood firm in pushing back against state attempts to curtail this right for migrants in its case law. However, there has been some criticism of the Court in its response to certain issues such as the use of diplomatic assurances to circumvent Article 3 issues raised by a removal or the Court’s approach to the returns to situations of general violence which will be explored below. However, one of the most interesting areas of case law is the development of the Court’s approach to the compatibility of Article 3 with state practices of removing seriously ill migrants. This is because this case law demonstrates both the explicit limitation of a right for migrants as compared to others, but also how the Court has changed course and significantly reversed that limitation in recent years. This series of cases on ‘healthcare removal’ drew an enormous amount of criticism from academics, NGOs and from many of the Court’s own judges as representing a dilution of Article 3’s absolute nature when it came to migrants. This case law, culminating in the N v United Kingdom case will be explored below but it is important to note that this case law has been significantly departed from in recent years in the cases of Paposhvili1 and Savran.2 These cases represent an interesting about-turn for the Court as they indicate the ability of the Court to change course with its case law and to recognise that it has previously limited a right unjustly. In this chapter the way in which the court has interpreted Article 3 when it comes to returning foreign nationals will be explored. First, the link between criminalisation and this case law is discussed by highlighting how the fundamental case law on this issue was linked to migrants suspected of criminal activities. Second, a brief overview of the scope of Article 3 is given to outline the nature and meaning

1 Paposhvili 2 Savran

v Belgium App No 41738/10 Judgment [GC] 13 December 2016. v Denmark [2019] ECHR 651.

Criminalisation and the Return of Foreign Nationals  125 of this right. Third, some of the more problematic issues with this case law will be discussed, including diplomatic assurances and returns to situations of general violence, but the focus will be on the healthcare removal case law. This is because this case law represented the clearest limitation of rights when it came to migrants compared with other groups and the recent case law demonstrates the Court can shift its approach and listen to criticism.

I.  Criminalisation and the Return of Foreign Nationals As already noted in previous chapters, the rhetoric and practices surrounding the criminalisation of immigration have resulted in the increased use of immigration detention and harsh removal measures. The ostensible and fundamental purpose of both of these measures is of course to ultimately remove the non-national and return them to their sending country. However, the return of migrants is complicated by the application of Article 3 of the Convention which requires that states refrain from exposing those within their jurisdiction to ill-treatment which amounts to torture, inhuman and degrading treatment or punishment. Many of the core cases on this point deal with the issue of states wishing to remove non-nationals who are suspected of engaging in criminal behaviour, and most controversially terrorist offences. The founding 1980’s Soering3 case is well known and had far-reaching effects for immigrants. The Applicant was a German national who was suspected of murdering his girlfriend’s parents in the United States. He was picked up in the United Kingdom where he allegedly confessed to the crime. The United States sought to extradite him from the United Kingdom to stand trial in Virginia. In turn the United Kingdom sought guarantees that he would not be sentenced to the death penalty and the Virginia Bedford County Attorney agreed that a representation would be made to the judge on behalf of the United Kingdom (UK) government. Mr Soering argued that this was insufficient protection and that, if extradited, there was a real risk that he would be subjected to the death row phenomenon which would be a breach of Article 3. The Court had to make a judgment on whether Article 3 applied to extraditions. The UK government argued that it should not because this would ‘impose responsibility on the contracting states for acts which occur outside its jurisdiction’,4 and that to hold otherwise would ‘intolerably’5 stretch the language of Article  3. It advanced various other arguments in support of this view including that to hold otherwise would affect international treaty rights and result in a risk of harm in the state which could not extradite the criminal and also leave him or her unpunished. In the event that the ECtHR found that Article 3 did apply to extraditions, the UK government argued

3 Soering 4 ibid, 5 ibid.

v United Kingdom (1989) 11 EHRR 439. para 83.

126  The Prohibition on Torture that this application ‘should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious’.6 The Court, however, disagreed: Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article  3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe.7

Therefore, it ‘would hardly be compatible with the underlying values of the Convention … were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed’.8 The Court thus ruled that Article 3 applied to extraditions and that in this case Article 3 would be violated by extraditing Mr Soering to the United States. Despite its affirmation of the absoluteness of Article 3, the ECtHR made a statement in paragraphs 88 and 89 of its judgment which seemed to imply a balancing test would be possible in certain circumstances: [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a large international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of notions of inhuman and degrading treatment or punishment in extradition cases.9

Article  3 has also been applied to deportations. The Chahal case concerned an individual suspected of being involved in terror plots including a plan to assassinate the Prime Minister of India on a visit to the United Kingdom and had been convicted of assault.10 After his release from prison, the United Kingdom sought to deport the Applicant to India which he claimed would be a violation of Article 3 given the evidence of prior ill-treatment carried out by the Indian authorities on Sikh separatists. The UK government argued that Article  3 was not absolute in situations where the state wished to remove the individual from its territory for national security reasons. In those circumstances it argued that the risk posed by the individual to the national security of the host state should be a consideration. The weight of this consideration should, it was argued, vary according to the risk

6 ibid.

7 ibid,

para 88.

9 ibid,

para 89. v United Kingdom (1997) 23 EHRR 413.

8 ibid.

10 Chahal

Criminalisation and the Return of Foreign Nationals  127 of ill-treatment – if the risk of ill-treatment was doubtful then national security concerns should weigh heavily: ‘Thus there was an implied limitation to Article 3 entitling a Contracting State to expel an individual to a receiving State even where a real risk of ill-treatment existed, if such removal was required on national security grounds’.11 As evidence for this submission, the UK government referred to the above-mentioned paragraphs 88 and 89 in Soering.12 It also relied on the fact that the 1951 Convention on the Status of Refugees qualifies the right to asylum on the grounds of the Applicant’s behaviour. Although the Court stated that it was ‘well aware of the immense difficulties faced by states in modern times in protecting their communities from terrorist violence’13 it was not moved on its position of the absoluteness of Article  3. The individual’s conduct, ‘however undesirable or dangerous’,14 cannot be taken into account. Furthermore, the Court made it absolutely clear that paragraphs 88 and  89 in Soering15 may not be used as a basis to challenge the absoluteness of Article 3: It should not be inferred from the Court’s remarks concerning the risk of undermining the foundation of extradition, as set out in paragraph 89 of the same judgment [Soering], that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 in engaged.16

The case of Saadi v Italy17 concerned the deportation of an individual charged with terrorist offences to Tunisia. The UK government was a third-party intervenor in this case and again made representations that Article 3 is not absolute. It argued that the principle that the Court had set down in Chahal was too rigid18 and needed to be ‘altered and clarified’.19 The risk of terrorist attacks endangered the right to life of the general population which the government needed to protect, but the Chahal judgment made this protection difficult. Furthermore, the government argued that the obligation to prevent ill-treatment by another state is an implied positive obligation; as the Court has ruled that implied positive obligations allow for balancing the rights of the individual against the interests of the community, the danger the individual poses to the community should be a consideration in Article 3 removal cases. Finally, the government argued that the standard of proof in Article 3 removal cases should be affected by national security factors. If the state can show that the individual is a national security risk, then the standard of proof of risk of ill-treatment should be increased to requiring it to be shown that the treatment is ‘more likely than not’.20

11 ibid,

para 76. v United Kingdom (n 3). 13 Chahal v United Kingdom (n 10) para 79. 14 ibid, para 80. 15 Soering v United Kingdom (n 3). 16 Chahal v United Kingdom (n 10) para 81. 17 Saadi v Italy [GC] (2009) 49 EHRR 30. 18 ibid, para 117. 19 ibid, para 122. 20 ibid. 12 Soering

128  The Prohibition on Torture The Court again was unmoved by the UK’s submissions. It noted that states face immense difficulties in modern times in protecting their communities from terrorist violence. It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community … That must not, however, call into question the absolute nature of Article 3.21

The Court then responded to some of the UK government’s arguments. It said there was no distinction between treatment inflicted directly by a contracting state and exposing the Applicant to treatment inflicted by a receiving state. Further, it stated that the idea of a balancing test between the risk of ill-treatment and the threat posed by the individual was ‘misconceived’ because the threat posed by the individual does not affect the degree of risk of ill-treatment. Since this balancing test is unacceptable, the Court found there was no reason to impose a higher standard of proof according to the risk to national security. Indeed Judge Zupancic went so far as to call the UK’s argument ‘intellectually dishonest’22 and stated that in fact the ‘Convention is conceived to block such short-circuit logic and protect the individual from the unbridled “interest” of the executive branch or sometimes even of the legislative branch of the State’.23 The Court did not really deal with the UK’s point on the right to life of the general population, though Judge Myjer in his Concurring Opinion stated that although he recognised the obligation of states to protect the community, ‘States are not allowed to combat international terrorism at all costs. They must not resort to methods which undermine the very values they seek to protect’.24 The ECtHR found that a violation of Article 3 would occur if the Applicant was deported to Tunisia. Thus, the Court has been firm in its protection of non-nationals in this area. As can be surmised from the above case law, this is not a popular approach with the states and the representation of this protection in the media often relates it to the criminalisation narrative, for example, in a recent headline in the United Kingdom: ‘Priti Patel will close Human Rights Act loophole that is exploited by foreign murderers and rapists who claim asylum in UK’25 which discusses the UK Home Office plans to limit the use of Article  3 (though this does not appear to have been borne out in the New Plan For Immigration).26 21 ibid, para 137. 22 ibid, Concurring Opinion of Judge Zupancic. 23 ibid. 24 ibid, Concurring Opinion Judge Myjer and Judge Zagrebelsky. 25 David Barrett, ‘Priti Patel will close Human Rights Act loophole that is exploited by foreign murderers and rapists who claim asylum in UK’ Daily Mail (19 October 2020), available at: www. dailymail.co.uk/news/article-8853645/Priti-Patel-launch-crackdown-criminals-abuse-human-rig hts-laws-claim-asylum-UK.html, 1. 26 HM Government, ‘New Plan for Immigration: Policy Statement’ (March 2021), available at: assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/972517/ CCS207_CCS0820091708-001_Sovereign_Borders_Web_Accessible.pdf.

An Overview of the Prohibition on Torture  129 This article discussed stories of the use of Article 3 with headings such as ‘The violent drug dealer’; ‘The alcoholic Libyan’; and ‘The thug with HIV’.27 The final heading demonstrates the link between the criminalisation of immigration and the ‘healthcare removal’ case law mentioned in the introduction to this chapter and which will be explored in depth below. Of course, this headline is just one example and some studies have found that the UK press have a more pronounced habit of linking migration and refugee issues to crime,28 although as outlined in chapter one the tendency to link immigration and crime together has been noted across various European countries. As also noted in chapter one, criminalisation is accompanied by a wider scapegoating of migrants and is often associated with public anxieties about economic insecurity and the use of state welfare systems. These relate to ‘crimmigration’ in that they fuel perceptions of migrants as threatening, untrustworthy, suspicious and undeserving. These are also often related to the ‘civil exclusions’ mentioned in the last chapter. Thus, the Article 3 prohibition is intimately related to the power of states to remove non-nationals and is therefore an issue which causes controversy with states, particularly the United Kingdom. How the Court has generally dealt with this politically sensitive area of case law has been outlined above, but this firm approach to protection has not been perfect. These criticisms will be discussed below with particular attention paid to the critical issue of ‘healthcare removals’. First, however, the general scope of Article 3’s protection will be briefly discussed so as to provide context for those criticisms.

II.  An Overview of the Prohibition on Torture, Inhuman and Degrading Treatment Article  3 simply states ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. No exceptions or derogations are mentioned in the Convention and the Court has ruled that this means Article 3 is ‘absolute’.29 By ‘absolute’ the Court means that the state must not breach the prohibition on torture, inhuman or degrading treatment or punishment no matter what the individual has done. A good example of this is the case of Gafgen v Germany.30 The case concerned the ill-treatment of a man who was suspected of kidnapping and killing a young boy, J. The Applicant was arrested for the kidnapping of J. The police, who feared for J’s life (unbeknownst to them, J was already dead), threatened 27 Barrett (n 25) 8. 28 See: www.unhcr.org/uk/protection/operations/56bb369c9/press-coverage-refugee-migrant-crisiseu-content-analysis-five-european.html. 29 See, eg, T v United Kingdom (2000) 30 EHRR 121, para 67; Gafgen v Germany (2011) 52 EHRR 1, para 87; Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1, para 185. 30 Gafgen v Germany (n 29).

130  The Prohibition on Torture the Applicant with unbearable physical pain and sexual abuse if he did not tell them where J was. The Applicant complied showing them where he had hidden J’s body. The Applicant complained that the threats by the police amounted to treatment contrary to Article 3. The German government conceded that Article 3 had been breached but pointed out that this had been done in an attempt to save J’s life. The Court reiterated that Article 3 is absolute and that the nature of the offence committed by the Applicant is irrelevant – a violation of Article 3 cannot be justified.31 Article 3 covers three different types of ill-treatment: (1) torture; (2) inhuman treatment or punishment; and (3) degrading treatment or punishment. It can be difficult to precisely define what each of these terms covers as deciding what type of conduct has occurred often depends on the circumstances of the case. In determining whether conduct has reached the level of ‘torture’ the Court will consider whether the infliction of ill-treatment was deliberate: ‘it was the intention that the Convention with its distinction between torture and inhuman treatment should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.32 Other relevant factors identified by the Court include the duration of the treatment, the physical and mental effects of the treatment, the sex, age and state of health of the victim, the nature and context of the punishment, and the manner and method of its execution.33 Inhuman treatment includes treatment which is not deliberate but causes ‘intense physical and mental suffering’.34 Conduct may be found to be both inhuman and degrading: Treatment has been held by the Court to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also ‘degrading’ because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (ibid). The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account (see, for example, the Raninen v Finland judgment of 16 December 1997, Reports 1997-VIII, pp 2821–22, § 55), but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3.35

Again, all the circumstances of the case must be taken into account when determining whether treatment amounted to inhuman treatment. Degrading treatment has been defined to include situations where the victim suffered gross humiliation

31 ibid,

para 87. v United Kingdom App No 5310/71 (ECtHR, 18 January 1978) para 167. 33 Tyrer v United Kingdom (1979–80) 2 EHRR, 1 para 30. 34 T v United Kingdom (n 29) para 69. 35 ibid, para 71. 32 Ireland

Exceptions for Immigrants?  131 though the Court has said that this is not always necessary to constitute degrading treatment.36 Forcing the victim to act against his will or conscience may also amount to degrading treatment.37 Trivial acts are not sufficient to amount to torture, inhuman or degrading treatment or punishment. In order for conduct to fall under Article 3, it must reach a minimum level of severity. Whether or not an act reaches the minimum level of severity depends on all the circumstances of the case and is a relative test: According to the Court’s well-established case law, 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 level of severity is relative; it depends on all the circumstances of the case such as the duration of the treatment, its physical and mental effects and in some cases, the sex, age and state of health of the victim.38

As the Convention is a living instrument, the minimum level of severity may change over time. The Court in Selmouni v France39 implied that conduct which was previously classed as inhuman and degrading treatment could in the future be considered torture.40 Thus, it is possible that conduct which previously did not meet the minimum level of severity to engage Article 3 might do so in the future. Thus, Article 3 covers situations where the victim suffered very serious physical or mental suffering. Determining whether the acts constitute torture, inhuman or degrading treatment or punishment is a test which depends on all the circumstances of the case.

III.  Exceptions for Immigrants? Article  3 then represents a significant limitation on state power when it comes to removal. As noted in the above section, states have not necessarily been on board with this approach and especially not in cases of suspected terrorist activity. Despite this, the Court has been relatively firm in its approach to the application of Article 3 and non-nationals. However there are three areas of case law relevant to migration where the Court has received some criticism for relaxing its Article 3 standards. The first is the issue of diplomatic assurances which may allow states to circumvent the protections set down in Chahal and Saadi v Italy discussed above. The second is the complex issue of returning people to situations of general violence where they do not necessarily meet asylum criteria but the person is at significant risk of being subjected to violence on their return. The third and most prominent area of case law is the issue of ‘healthcare removals’ which refers to the 36 Poltoratskiy v Ukraine (2004) 39 EHRR 43, para 131. 37 B Rainey, E Wicks and C Ovey, The European Convention on Human Rights 6th edn (Oxford University Press 2014) 175. 38 Jalloh v Germany (2007) 44 EHRR 32 para 67. 39 Selmouni v France (2000) 29 EHRR 403. 40 ibid, para 101.

132  The Prohibition on Torture state obligations when seeking to return a person who is seriously ill to their country of origin. Each of these will be discussed in turn below.

A.  Diplomatic Assurances As can be seen in the case law above, the approach of the Court to removals has been controversial and many states are not satisfied with it. States have therefore begun the practice of deporting people considered to be a threat to national security to places where there is a risk of ill-treatment if they have received diplomatic assurances that the person will not be subject to treatment contrary to Article 3. The concept of diplomatic assurances as a means of mitigating the risk of a potential violation of Article  3 first appeared in the Soering case. As noted above, the United Kingdom sought assurances from the Virginia authorities that Mr Soering would not be subject to the death penalty. Assurances were made that a representation would be made before the judge on the UK’s behalf stating that it does not wish for the death penalty to be carried out. The Court found that this guarantee was insufficient as it did not ‘eliminate’ the risk of the death penalty being imposed.41 Even where the wording of the guarantee is more robust than that in Soering, the Court has rejected assurances based on the practices of the country in question. In Chahal, for example, the Indian government’s assurances that the Applicant would not be subject to ill-treatment were rejected: Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above, it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem. Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety.42

Diplomatic assurances were again rejected in Saadi v Italy,43 based on information about the practices of the Tunisian state. This case concerned the arrest of a Tunisian national in Italy on suspicion of being involved in international terrorism. He was convicted of terrorism offences in Tunisia in a trial conducted while he was absent. Italy ordered his deportation to Tunisia and asked for assurances that he would not be subject to treatment contrary to Article 3. Tunisia provided two unspecific assurances: [T]he Tunisian Government confirms that it is prepared to accept the transfer to Tunisia of Tunisians imprisoned abroad once their identity has been confirmed, in strict

41 Soering

v United Kingdom (n 3) para 98. v United Kingdom (n 10) paras 105–06. 43 Saadi v Italy (n 17). 42 Chahal

Exceptions for Immigrants?  133 conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes.44

And: The Minister for Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions.45

The ECtHR considered these assurances far too vague, lacking any specific guarantee of protection of the Applicant against ill-treatment. The Court went on to state that, even if specific assurances had been made, it would still have to scrutinise them to determine whether they were likely to be fulfilled in practice. In this case, the Court considered that such assurances would not be sufficient as there was reliable evidence that the Tunisian authorities regularly engaged in and tolerated practices contrary to Article 3 of the ECHR. Thus, the Court will consider both the robustness of the guarantees provided and whether the general situation in the country implies that such guarantees will be fulfilled. The Court, then, has rejected many attempts at using diplomatic assurances but it has not prohibited the practice altogether – an omission which has been the subject of much criticism.46 The potential weakness and unreliability of diplomatic assurances have led to the accusation that the ECtHR allows states to circumvent the absolute prohibition on torture, inhuman or degrading treatment or punishment. Assurances have been broken in the past. For example, in 2005 the case of Agiza v Sweden47 came before the UN Committee Against Torture. It concerned the deportation of an Egyptian national from Sweden to Egypt. Despite assurances and visits to the complainant by the Swedish Ambassador, he was nevertheless subject to torture by the Egyptian authorities. When this emerged the Egyptian officials did not respond to a Swedish request for an independent inquiry. There is no mechanism for ECHR states to compel other states to comply with the assurances given and thus there is potential for Article 3 rights to be violated regardless. Another issue with diplomatic assurances is that the ECtHR seems to soften its strict approach in some cases. In Othman (Abu Qatada) v United Kingdom,48 the United Kingdom sought to deport a suspected terrorist to Jordan. A Memorandum of Understanding existed between Jordan and the United Kingdom via a bilateral agreement which provided specific assurances that persons deported to Jordan 44 ibid, para 54. 45 ibid, para 55. 46 M Giuffre, ‘An Appraisal of Diplomatic Assurances One Year After Othman (Abu Qatada) v United Kingdom (2012)’ (2013) 2 International Human Rights Law Review 266; L Skoglund, ‘Diplomatic Assurances Against Torture – An Effective Strategy? A Review of Jurisprudence and Examination of Arguments’ (2008) 77 Nordic Journal of International Law 319. 47 Agiza v Sweden (Communication No 233/2003) CAT/C/34/D/233/2003 (CAT) 20 May 2005. 48 Othman (Abu Qatada) v United Kingdom (n 29).

134  The Prohibition on Torture would not be subject to ill-treatment. After reiterating the Saadi v Italy principle that the Court will primarily consider the general situation in the state in question when determining whether diplomatic assurances are reliable, the Court then immediately added ‘it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances’.49 The Court found that there was reliable evidence that torture was commonplace in Jordan: [T]he picture painted by the reports of United Nations bodies and NGOs of torture in Jordanian prisons is as consistent as it is disturbing. Whatever progress Jordan may have made, torture remains, in the words of the United Nations Committee Against Torture, widespread and routine.50

The Court, however, found that the situation generally did not prevent the United Kingdom from relying on the assurances made by Jordan. Thus, the assurances made by states may still carry a lot of weight even when their general practice roundly conflicts with ECHR values meaning that there is still a significant risk in some cases that the person will be subject to ill-treatment. The practice of using diplomatic assurances allows states to deport migrants to countries with very questionable human rights records and as there is no real mechanism for ensuring such assurances are kept, it puts those deported at risk of ill-treatment. This is not the only time that the ECtHR has taken a more lenient approach to state action when it comes to migrants and Article 3 as will be discussed below.

B.  Returns to Situations of General Violence The ECtHR has also been criticised for potentially limiting the impact of Article 3 in relation to immigrants in situations where returns to general violence are at stake. General violence refers to situations where any person returned to a state or a particular area of a state has a significant chance of becoming a victim of violence.51 The first case to deal with returns to situations of general violence was Vilvarajah and others.52 This case concerned five Tamil males who had fled Sri Lanka, and whose families had been subject to indiscriminate violence (murders, beatings, property destruction) by the Sri Lankan army. The United Kingdom rejected their claims for asylum on the grounds that their experiences were ‘random and part of the army’s general activities directed at discovering and dealing with Tamil extremists’53 which were not personal or targeted enough to require a grant 49 ibid, para 188. 50 ibid, para 191. 51 M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015). Sometimes called ‘indiscriminate violence’, see H Lambert, ‘The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence’ (2013) 25 International Journal of Refugee Law 207, 207. 52 Vilvarajah and Others v United Kingdom (1992) 14 EHRR 248. 53 ibid, para 13.

Exceptions for Immigrants?  135 of refugee status. The Applicants were returned to Sri Lanka where several of them subsequently suffered ill-treatment. They alleged that the rejection of their asylum application and subsequent return to Sri Lanka violated their Article 3 rights. The ECtHR did not agree, finding no violation of Article 3. It stated: The evidence before the Court concerning the background of the applicants as well as the general situation, does not establish that their personal position was any worse than that the generality of other members of the Tamil community or young male Tamils who were returning to the country. Since the situation was still unsettled … there existed the possibility that they might be detained and ill-treated as appears to have occurred previously in the cases of some of the applicants … A mere possibility of illtreatment, however, in such circumstances is in itself sufficient to give rise to a breach of Article 3.54

The fact that the Applicants had indeed suffered ill-treatment on return was irrelevant: ‘Be that as it may … there existed no special distinguishing features in their cases that could or ought to have enabled the Secretary of State to foresee that they would be treated this way’.55 This need for ‘special distinguishing features’ may be linked to the definition of a refugee in the Refugee Convention 1951 which defines a refugee as: A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.56

Thus, ‘the definition of a refugee … is primarily individualistic and focuses on discriminatory acts of persecution based on specific grounds’.57 Another interpretation of this case law, however, may be seen in an argument made by the UK government to the ECtHR which went unanswered: The consequence of finding a breach of Article 3 … in the present case would be that all persons in similar situations facing random risks on account of civil turmoil in the State in which they lived would be entitled not to be removed, thereby permitting the entry of a potentially very large class of people with the attendant serious social and economic consequences.58

This argument is familiar from the healthcare removal case law which will be discussed below: essentially it reveals a fear of ‘opening the floodgates’.59 The need for ‘special distinguishing features’ significantly limits the number of people who

54 ibid,

para 111. para 112. 56 Convention Relating to the Status of Refugees 1951, Article 1. 57 Lambert (n 51) 207. 58 Vilvarajah and Others v United Kingdom (n 52) para 105. 59 Dembour (n 51) 231. 55 ibid,

136  The Prohibition on Torture can meet the criteria and thus prevents a large number of people from benefiting from Article 3 protection. This ‘special distinguishing features’ test for the most part continues to operate to this day. There was an attempt to move away from it in the case of Salah Sheekh.60 The Applicant was a member of the Ashraf minority in Somalia; he and his family lived in a village with a predominantly Abgal clan population which meant the family were constantly intimidated and extorted. The situation deteriorated and the Applicant’s father and brother were shot dead, his sister raped twice and the Applicant himself was subject to numerous beatings. The Applicant’s claim for protection was rejected by the Netherlands because, among other things, his experience stemmed from the instability in Somalia where criminal gangs carry out frequent and arbitrary attacks, rather than from anything personal to him. The Applicant challenged the decision to return him to Somalia as a violation of Article  3. The ECtHR noted that the Applicant was a member of a particularly vulnerable ethnic minority so the violence could not be classified as ‘arbitrary’. Moreover, it cannot be required from the Applicant that he established that further special distinguishing features, concerning him personally, exist in order to show that he was and continues to be personally at risk … it might render the protection offered illusory if, in addition to the fact that he belongs to the Ashraf … the applicant be required to show the existence of further distinguishing features.61

The Court tried to distinguish this from Vilvarajah by stating that, given the Applicant’s ethnicity, the consequences of his return were foreseeable. Soon after, however, the ECtHR reiterated the continuing relevance of the ‘special distinguishing features’ test in NA v United Kingdom.62 This case again concerned the return of Tamils to Sri Lanka. The Court took the opportunity to set out the general principles of its case law on returns to indiscriminate violence. It found that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion … [but that] the Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention.63

This would only occur in ‘the most extreme cases of general violence’.64 Where the Applicant is a member of a particular group which is systematically exposed to ill-treatment, however, then the Applicant will not need to show further distinguishing features. In this case it was recognised that there had indeed been a

60 Salah

Sheekh v Netherlands (2007) 45 EHRR 50. para 148. 62 NA v United Kingdom (2009) 48 EHRR 15. 63 ibid, paras 114–15. 64 ibid, para 115. 61 ibid,

Exceptions for Immigrants?  137 deterioration of the situation in Sri Lanka, but the national authorities and courts did not find it sufficiently bad to prohibit the general return of Tamils. Although the Applicant’s specific circumstances and history meant that he could not be returned to Sri Lanka, this did not apply generally to Tamils. There has been one case in which the ECtHR found that the level of general violence was so high as to prevent returns there as this would violate Article 3. The case of Sufi and Elmi65 concerned the return of the Applicants to Mogadishu, Somalia: The Court considers that the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital. In reaching this conclusion the Court has had regard to the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict.66

It is worth noting, however, that the assertion that Mogadishu is too dangerous to return anyone has been subsequently overturned.67 The vast majority of returns to general violence are considered compatible with Article 3 and most likely this will continue to be the case. Scholars have noted that Sufi and Elmi set a ‘highwater mark’68 and that it ‘may indeed become, in practice, another D case with its requirements of a truly exceptional threshold’.69 This quote refers to the ‘healthcare removal’ case law and the problems with the protection offered by the Court under Article 3 in that area.

C.  Article 3 and ‘Healthcare Removal’ The idea of Article 3 being applicable to ‘healthcare removal’ cases was first explored long before Soering in the Commission decision of JP v Belgium.70 Belgium wanted to remove an ill individual back to Hungary. The Commission stated that the application appears to raise the question of whether the expulsion of an alien can, in certain exceptional conditions, constitute inhuman and degrading treatment under Article 3 of the Convention; it is however not necessary to examine this question in this case [given that the applicant] cannot reasonably submit that he is a victim of a treatment contrary to Article  3 as per the information he himself provided to the Commission, his expulsion has not yet taken place.71 65 Sufi and Elmi v United Kingdom (2012) 54 EHRR 9. 66 ibid, para 248. 67 KAB v Sweden App No 886/11 (ECtHR, 5 September 2013) para 79. 68 N Mole, ‘Generalised violence, armed conflict and the need for international protection’ (4–6 May 2012) as cited by Lambert (n 51) 233. 69 Lambert (n 51) 233. 70 JP v Belgium App No 984/61 (Commission Decision, 29 May 1961). 71 ibid, translation from Dembour (n 51) 200.

138  The Prohibition on Torture So, it was recognised early that Article 3 might be engaged by deportations that can cause or worsen medical problems. This principle was explicitly recognised in the Commission decision in Tanko v Finland72 which concerned the deportation of a man with glaucoma from Finland to Ghana. The Applicant advanced evidence that he might need an operation which would not be available in Ghana and that he would need regular medication which, if interrupted, could lead to him being in severe pain and losing his eyesight. He argued that deporting him would subject him to a risk of treatment contrary to Article  3 by putting him at risk of losing his eyesight. Although the Commission stated that it ‘does not exclude that a lack of proper care in a case where someone is suffering from a serious illness could in certain circumstances amount to treatment contrary to Article 3’,73 in the present case it found that there would be no breach of Article 3 as it was not established that the Applicant could not obtain medication in Ghana. The fact that the Applicant’s family still resided there was also taken into account by the Commission. A successful healthcare removal submission was made in the case of D v United Kingdom.74 The Applicant arrived in the United Kingdom from St Kitts in 1993 and was caught carrying a significant amount of cocaine. While in prison he was diagnosed with AIDS. The UK government issued directions for his removal back to St Kitts. The Applicant argued that this removal, given his medical condition, the level of medical care available to him in St Kitts, the fact that he had no access to social support and that he had no relatives or friends there, would expose him to treatment contrary Article 3. This was because the removal would not only accelerate his death, but would cause it to happen in conditions that were inhuman and degrading. The UK government denied that the Applicant had a valid claim as his hardship and reduced life expectancy would stem from his terminal and incurable illness coupled with deficiencies in the health and social-welfare system of a poor, developing country. He would find himself in the same situation as other AIDS victims in St Kitts.75

The Court did not accept this argument from the UK government. It recognised that the risk of ill-treatment in this case stemmed from ‘factors which cannot engage either directly or indirectly the responsibility of the public authorities of [the receiving] country, or which taken alone do not in themselves infringe the standards of Article 3’.76 It did not, however, find this a persuasive reason to not examine the Applicant’s claim. The Court found, unanimously, that deporting the Applicant to St Kitts would be a violation of Article 3. This was because D was close to death, had no remaining family in St Kitts and would not be guaranteed a bed



72 Tanko 73 ibid. 74 D

v Finland App No 23634/94 (Commission Decision, 19 May 1994).

v United Kingdom (1997) 24 EHRR 423. para 42. 76 ibid, para 49. 75 ibid,

Exceptions for Immigrants?  139 in hospital or medical support there. Therefore returning him would subject him to acute physical and mental suffering. The Court subsequently explicitly found in Pretty that the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.77

D was one of only two successful cases on this point, however. The other case, BB v France,78 concerned the return of an AIDs sufferer to the Democratic Republic of Congo. The Commission found that the return would violate Article 3 but the parties reached a friendly settlement before the Court could render a judgment. Apart from these two cases, the Court did not find in favour of the Applicant in any other case despite a long line of cases from 1998 to 2008. The Court consistently found no violation of Article 3 in healthcare returns cases and found most manifestly ill-founded.79 In Bensaid v United Kingdom,80 for example, the Applicant was an Algerian national who had schizophrenia (a long-term psychotic illness) which meant he experienced hallucinations and was at risk of self-harm and of harming others. He was receiving treatment to manage his condition in the United Kingdom but the government sought to return him to Algeria. There was a hospital in Algeria which could provide the Applicant with the medication he was receiving in the United Kingdom. The hospital was approximately 80 km from the Applicant’s village and there was evidence that this area was the focus of terrorist action. The Applicant submitted evidence from a psychiatrist that he would likely suffer a relapse of his symptoms on return to Algeria, especially given the stress that travelling regularly through the troubled region to the hospital would entail. Also, given the Applicant’s illness, if his symptoms relapsed he would find it difficult to organise the travel to the hospital and it was likely he would go untreated. Although the Applicant’s family lived in the village, they did not have a car and he claimed they would want him to rely on faith rather than medication to help with his illness. Furthermore the medication the Applicant was on would not be provided for free and he would not be able to rely on any social support to pay for the drugs. 77 Pretty v United Kingdom (2002) 35 EHRR 1. 78 BB v France App No 30930/96 (ECtHR, 7 October 1998). 79 Karara v Finland App No 40900/98 (Commission Decision, 29 May 1998) (manifestly ill-founded); MM v Switzerland App No 43348/98 (Commission Decision, 14 September 1998) (manifestly illfounded); SCC v Sweden App No 46553/99 (ECtHR, 15 February 2000) (manifestly ill-founded); Tatete v Switzerland App No 41874/98 (ECtHR, 6 July 2000) (struck out after friendly settlement); Bensaid v United Kingdom (2001) 33 EHRR 10 (no violation); Arcila Henao v Netherlands App No 13669/03 (ECtHR, 24 June 2003) (manifestly ill-founded); Meho and others v Netherlands (2004) 38 EHRR CD250 (manifestly ill-founded); Ndangoya v Sweden App No 17868/03 (ECtHR, 22 June 2004) (manifestly ill-founded); Salkic v Sweden App No 7702/04 (ECtHR, 29 June 2004) (manifestly ill-founded); Dragan and others v Germany App No 33743/03 (ECtHR, 7 October 2004) (manifestly ill-founded); Amegnigan v Netherlands App No 25629/04 (ECtHR, 25 November 2004) (manifestly ill-founded). 80 Bensaid v United Kingdom (n 79).

140  The Prohibition on Torture The Court noted that the Applicant’s illness was a long-term one and so a relapse could occur in the United Kingdom although there was an increased risk of this if he was returned to Algeria. It also acknowledged the difficulties that the Applicant might face in accessing the treatment but stated that the treatment was nevertheless available. The Court referred to the risk of the Applicant relapsing, the travel difficulties and the difficulties he may encounter with his family as ‘speculative’.81 Further it stated that the ‘applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made’.82 Thus Article 3 was not breached. Another example of the Court’s approach is in SCC v Sweden83 in which the Applicant was a Zambian national living irregularly in Sweden who had been diagnosed as suffering from HIV. She had begun anti-HIV treatment in Sweden and argued that returning her to Zambia would risk exposing her to treatment contrary to Article 3. She submitted a medical certificate which stated that termination of her current treatment would result in faster progress towards the AIDS stage of the illness and thus her death. In another medical certificate it was stated that the treatment would have a much better chance of success if she continued it in Sweden since the standard of care and monitoring possibilities in Zambia were poor compared with Sweden. The Swedish government argued that a diagnosis of HIV or AIDS should not be decisive of the question whether leave to remain should be granted on humanitarian grounds. The Court agreed that a diagnosis of HIV or AIDS should not be decisive and that an overall evaluation of the Applicant’s state of health should be made. The Court also noted that the report from the Swedish Embassy in Zambia stated that the same type of AIDS treatment was available there, albeit at a considerable cost and that the Applicant’s family members still lived in Zambia. Thus a return to Zambia would not violate Article 3. In Henao v Netherlands,84 the Applicant was a Colombian national who was found to be HIV positive and had been given anti-retroviral medication in the Netherlands. He argued that returning him to Colombia would make treatment difficult and would hasten his death and thus was a violation of Article  3. The Court for the first time appeared to lay down a test for Article 3 healthcare removal cases: In these circumstances the Court considers that, unlike the situation in the above-cited case of D v the United Kingdom and BB v France … it does not appear that the applicant’s illness has attained an advanced or terminal stage, or that he has no prospect of medical care or of family support in his country of origin. The fact that the applicant’s circumstances in Columbia would be less favourable than those he enjoys in the Netherlands cannot be regarded as decisive from the point of view of article 3 of the Convention.85

81 ibid,

para 39.

83 SCC

v Sweden (n 79). Henao v Netherlands (n 79).

82 ibid.

84 Arcila 85 ibid.

Exceptions for Immigrants?  141 Thus, the three factors that the Court seems to focus on are the stage of the illness, the availability of medical care, and the presence of family and friends. Several other cases followed this pattern and found no violation of Article 3.86 The case law came to a head with the N v United Kingdom judgment.87 N was a national of Uganda who had applied for asylum in the United Kingdom. She was seriously ill when she arrived and was diagnosed as HIV positive. The Applicant’s asylum claim was rejected and she argued that returning her to Uganda would violate Article 3 given her medical condition. She submitted medical evidence that, if her current treatment was withdrawn, her life expectancy would be less than one year. Although the medication was available in Uganda, it was very expensive and there was no public provision of monitoring, nursing care, social security, food or housing. Furthermore, evidence was submitted from research carried out by the World Health Service that only about half of those who needed anti-retroviral treatment in Uganda receive it, that there was a significant disparity in the availability of drugs between urban and rural areas, and that any progress Uganda had made in providing treatment was offset by the increasing number of people who needed it. The Court undertook a summary of its case law in this area before extrapolating some principles to be applied. First, it reiterated that ‘aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State’.88 Second, it stated that the fact that the Applicant’s life expectancy would be reduced if removed was not enough to engage Article  3. Rather, removals of ill aliens to countries which have worse facilities than the expelling state will only engage Article 3 in ‘very exceptional circumstances, where the humanitarian grounds against the removal are compelling’.89 Third, the Court stated that this high threshold had to be maintained in cases where ‘the alleged future harm would emanate not from the intentional acts of omissions of public authorities or non-State bodies but instead from naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country’.90 Fourth, the Court stated that the Convention is ‘essentially directed at the protection of civil and political rights’.91 Fifth, the Court stated ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’92 and that ‘Article  3 does not place an obligation on the Contracting State to alleviate such disparities through 86 Meho and others v Netherlands (n 79); Ndangoya v Sweden (n 79); Salkic v Sweden (n 79); Amegnigan v Netherlands (n 79); Dragan and others v Germany (n 79). 87 N v United Kingdom (2008) 47 EHRR 39. 88 ibid, para 42. 89 ibid. 90 ibid, para 43. 91 ibid, para 44. 92 ibid.

142  The Prohibition on Torture the provision of free and unlimited healthcare to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States’.93 The Court applied these principles to the situation of N and found that there was no violation of Article 3. It seemed to place a great deal of weight on the fact that the Applicant was not critically ill at the time of the case, and that the deterioration of her condition and the likelihood of her obtaining medical treatment, support and care involved ‘a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide’.94 The N judgment remained the authority for healthcare removal cases for several years but was fiercely criticised by several ECtHR judges. There are numerous problems with the principles laid down in the N case, not only from a logical and humanitarian perspective, but from a case law consistency point of view. These issues drew much criticism and dissent in the years after N was decided. The ‘very exceptional circumstances’ case was subject to much criticism as being fundamentally empty95 as it created a standard that was almost impossible to reach, was illogical in many ways and not consistent with the Court’s other case law. First, the way in which the Court assessed the availability of the treatment in the receiving country was problematic. In various cases, despite acknowledging that the Applicant had advanced a significant amount of evidence that they would be unable to obtain treatment in the receiving country, treatment has been declared to still be ‘available’ because it technically existed in the receiving country. This went against the Court’s general principle that Convention rights should be practical and effective, not theoretical and illusory. Moreover, this was inconsistent with D v United Kingdom where the government argued that there was a hospital on the island which cared for AIDS sufferers, but the Court found that there was no evidence that the Applicant would be guaranteed a bed in that hospital.96 As demonstrated by the death of N in cruel conditions shortly after her removal to Uganda,97 ‘available’ treatment may not mean anything in reality. Second, in several cases the Court criticised arguments made by applicants as to their future condition if deported as involving ‘a certain degree of speculation’.98 This is odd given that the Court explicitly admitted in the Saadi v Italy case that the assessment of risk of future ill-treatment is ‘to some degree speculative’.99 If the Court will not accept ‘speculative’ arguments, this implied that the applicant

93 ibid. 94 ibid, para 50. 95 V Bettinson and A Jones, ‘Is Inadequate Medical Care Insufficient to Resist Removal? The Return of Foreign Nationals with HIV/AIDS and Article 3 ECHR’ (2006) 28 Journal of Social Welfare & Family Law 70; A Devillard, ‘The Principle of Non-discrimination and Entry, Stay and Expulsion of Foreigners Living with HIV/AIDS’ (2009) 11 International Journal on Multicultural Societies 91, 101. 96 D v United Kingdom (n 74). 97 SJ v Belgium (2015) 61 EHRR 21 Dissenting Opinion of Judge Pinto De Albuquerque para O-I2. 98 Bensaid v United Kingdom (n 79) para 38; and Meho and others v Netherlands (n 79). 99 Saadi v Italy (n 17) para 142.

Exceptions for Immigrants?  143 must show that a risk is certain or very nearly certain.100 This was a much higher threshold than that normally set for Article 3 removal cases such as NA v United Kingdom101 regarding the risk of ill-treatment: It is in principle for the applicant to adduce evidence capable of proving that there are substantial ground for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the Government to dispel any doubts about it.102

This also seems inconsistent with the D judgment where the Court’s reasoning seemed much closer to NA: While he may have a cousin in St Kitts … no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients.103

There seemed to be little difference between D’s situation and that of N. In N, the Applicant showed that there was a significant risk she would not receive proper treatment, that she had no means to support herself and that no family would support her; the UK government did nothing to rebut these arguments except to say that she still had some family in Uganda. Moreover, this need for certainty or near certainty was at odds with the Court’s rejection in Soering of the UK’s ‘certain, imminent and serious’ test for Article 3 return cases, as mentioned above. The third issue with the ‘very exceptional circumstances’ test was the odd logic of focusing on the Applicant’s current state of health. Focusing on the Applicant’s state of health while on the current treatment is likely to be misleading because, if receiving the correct treatment, applicants are unlikely to be suffering the requisite amount and will not reach that stage until after treatment is removed.104 This notion that an applicant needs to be in very poor health before deportation in order to attract Article 3’s protection (the ‘deathbed doctrine’) was criticised by several judges of the Court. In the N judgment, the dissenting Judges Tulkens, Bonello and Spielmann referred to the Court distinguishing N from D on the basis that ‘the applicant is not, however, at the present time critically ill’105 as ‘misconceived’.106 They argued that deporting a person on their deathbed was in

100 H Battjes, ‘In Search of Fair Balance: The Absolute Character of the Prohibition of Refoulement Under Article 3 ECHR Reassessed’ (2009) 22 Leiden Journal of International Law 583, 611. 101 NA v United Kingdom (n 62). 102 ibid, para 111. 103 D v United Kingdom (n 74) para 52. 104 V Bettinson and A Jones, ‘The Integration or Exclusion of Welfare Rights in the European Convention on Human Rights: The Removal of Foreign Nationals with HIV After N v UK’ (2009) 31 Journal of Social Welfare and Family Law 83. 105 N v United Kingdom (n 87) para 50. 106 ibid, Dissenting Judgment, para O-I25.

144  The Prohibition on Torture and of itself a violation of Article 3 and that a separate violation of Article 3 was to be found in cases where there was a lack of medical, palliative and psychological care in the receiving country which would likely expose the applicant to acute suffering.107 In a later healthcare removal case, Yoh-Ekale Mwanje v Belgium,108 in which the Court found no violation of Article 3, six of the seven judges (Judges Tulkens, Jociene, Popovic, Karakas, Raimondi and Pinto De Albuquerque) issued a Concurring Opinion in which they expressed criticism of the ‘deathbed doctrine’ and a hope that the Court would reconsider this area of law: We believe however that such an extreme threshold of seriousness – to be nearing death – is hardly consistent with the letter and spirit of art.3, an absolute right which is among the most fundamental rights of the Convention and which concerns an individual’s integrity and dignity. In this regard, the difference between a person on his or her deathbed and a person who everyone acknowledges will die very shortly would appear to us to be minimal in terms of humanity. We hope that the Court may one day review its case law in this respect.109

Judge Pinto De Albuquerque is also very critical of this doctrine in his Dissenting Opinion in SJ v Belgium:110 [T]he majority [in N] refrains from saying that, in the case of AIDS patients, antiretroviral treatment can be likened to a life-support machine and that terminating it in the receiving State would be tantamount to having a life-support machine turned off and therefore to a breach of Article 3. Instead, the majority focuses on ‘fitness to travel’ as the ultimate, practical criterion for deciding who is to be removed!111

Thus the ‘very exceptional circumstances’ test was clearly identified as problematic. Another prominent issue with the N judgment is the Court referring to the search for a fair balance within the Convention.112 This is seriously problematic because, as discussed above, the Court has repeatedly reiterated that Article 3 is an absolute right and that a violation cannot be justified. When making this claim in N, the Court refers to paragraph 89 of the Soering case which, as discussed above, was an early Article 3 case. This paragraph refers to the search for a fair balance in the Convention but in the Chahal case113 the Court explicitly ruled out using paragraph 89 of the Soering judgment to try to justify a breach of Article 3: It should not be inferred from the Court’s remarks concerning the risk of undermining the foundation of extradition, as set out in paragraph 89 of the same judgment [Soering], that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 in engaged.114

107 ibid,

Dissenting Judgment, para O-I20-23. Mwanje v Belgium (2013) 56 EHRR 35. 109 ibid, Concurring Opinion, para OI-6. 110 SJ v Belgium (n 97). 111 ibid, Dissenting Judgment of Judge Pinto De Albuquerque, para O-I8. 112 N v United Kingdom (n 87) para 44. 113 Chahal v United Kingdom (n 10). 114 ibid, para 81. 108 Yoh-Ekale

Exceptions for Immigrants?  145 The dissenting judges in the N case, Judges Tulkens, Bonello and Spielmann, made this point arguing that this was inconsistent with the Court’s previous case law.115 The justification implicitly used by the Court in N relies on a ‘floodgates’ argument that states will not have sufficient resources: Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.116

This implies that the Court is concerned about a state’s resources but the Court had previously ruled that arguments relying on a lack of resources cannot be used to justify violations of Article 3.117 Given the fundamental absolute nature of Article 3, the ‘floodgates’ argument attracted much criticism. The dissenting judges in N118 were of the opinion that ‘Such a consideration runs counter to the absolute nature of the rights guaranteed by the Convention that would be completely negated if their enjoyment were to be restricted on the basis of policy considerations such as budgetary constraints’.119 Judge Pinto De Albuquerque in SJ states ‘The worrying policy considerations … are particularly misplaced in view of the absolute character of the prohibition of ill-treatment in the Convention system. Legal reasoning is abandoned in favour of politics’.120 Alison Kesby characterises the Court’s judgment as a choice between conceding ‘that the border of human rights – the limits of inclusion – is drawn along economic lines thus giving up any pretence as to the fundamental nature of article  3 or it must adhere to the absolute nature of the right’.121 Likewise, Caroline Sawyer argues this demonstrates that the human rights protected by the ECHR are not universal but dependent on nationality or immigration status.122 There are some who do not think this approach was particularly problematic; for example, Hemme Battjes explores the argument that the Court has always 115 N v United Kingdom (n 87) Dissenting judgment, para O-I7. 116 ibid, para 44. 117 Kalashnikov v Russia (2003) 36 EHRR 34; Aliev v Ukraine App No 41220/98 (EctHR, 29 July 2003) para 151; Poltoratskiy v Ukraine (2004) 38 EHRR 25, para 148; Iovchev v Bulgaria App No 41211/98 (EctHR, 2 February 2006) para 136; Dybeku v Albania App No 41153/06 (ECtHR, 18 December 2007) para 50; M.S.S v Belgium and Greece (2011) 53 EHRR 2, para 223. 118 N v United Kingdom (n 87). 119 ibid, Dissenting Judgment, para O-I8. 120 SJ v Belgium (n 97) Dissenting Judgment of Judge Pinto De Albuquerque, para O-I10. 121 A Kesby, The Right to Have Rights: Citizenship, Humanity and International Law (Oxford University Press 2012) 138. 122 C Sawyer, ‘Insufficiently Inhuman: Removing AIDS patients from the UK. N v Secretary of State for the Home Department (Terence Higgins Trust intervening) [2003] EWCA Civ 1369’ (2004) 26 Journal of Social Welfare & Family Law 281, 283.

146  The Prohibition on Torture carried out a covert balancing exercise in the implementation of Article 3.123 He argues that N v United Kingdom simply made explicit the implicit balancing test the Court uses in Article 3 cases: ‘The freedom to balance interests that states enjoy in procedural matters is, except for N v United Kingdom, not labelled as such nor are criteria for this discretion worded’.124 He cites examples such as the Court stating that forced regurgitation does not breach Article 3 where it is necessary to acquire evidence, or that suffering and humiliation in the course of ‘legitimate’ detention will not violate Article 3. Moreover, the Court is consistently making value judgements on issues such as the standard of proof necessary in Article  3 cases; this standard varies which implies a balancing test. He concludes, however, that ‘it does not follow that the designation of Article 3 ECHR as “absolute” is meaningless’125 as it means that the ability of states to justify ill-treatment is extremely limited and thus the Court applies a ‘main rule’ of no justifications. Even if this is the case, this departure from the ‘main rule’ is based on a justification which is not supported by any concrete evidence before the Court. The dissenting judges in N expressed scepticism at the floodgates argument which they called ‘totally misconceived’126 considering the small number of HIV cases against the United Kingdom heard before the Court.127 In SJ,128 Judge Pinto De Albuquerque called this argument a ‘fallacy’129 which is ‘not proven’.130 Some commentators have also been critical. Vanessa Bettinson and Alwyn Jones dispute the assertion that migrants would travel to Europe for medical treatment for HIV since many migrants do not realise they are HIV-positive in their country of origin.131 They also believe that the proper implementation of the strict test in D would limit the consequences for states.132 Virginia Mantaouvalou refers to the academic literature which shows that more expansive refugee protection does not itself lead to a great increase in the number of applications.133 The question is thus debatable, and the lack of any evidence and its clear consideration in the judgment makes this justification seem weak, especially given the supposed fundamental nature of Article 3. In light of all of these criticisms, the case law on healthcare removals clearly represented an area where the Court had limited the rights of migrants. Like many of the other cases discussed throughout this book, migrants were given a lower 123 Battjes (n 100). 124 ibid, 619. 125 ibid, 618. 126 N v United Kingdom (n 87) Dissenting Judgment, para O-I8. 127 ibid. 128 SJ v Belgium (n 97). 129 ibid, Dissenting Judgment of Judge Pinto De Albuquerque, para O-I7. 130 ibid. 131 Bettinson and Jones, ‘The Integration or Exclusion of Welfare Rights in the European Convention on Human Rights’ (n 104) 87. 132 ibid. 133 V Mantouvalou, ‘N v UK: No Duty to Rescue the Nearby Needy?’ (2009) 72 Modern Law Review 815, 827.

Exceptions for Immigrants?  147 level of protection and the reasoning used to reach that level relied on problematic arguments, did not appear to be consistent with other case law nor with the principle that the Convention rights should be practical and effective rather than theoretical. Unlike the other areas of case law, however, the Court has shifted its approach in recent years. Eight years after N, the ECtHR, arguably in response to the significant criticism it received, departed from the principles of N in 2016 in the case of Paposhivili.134 Paposhivili concerned a Georgian Applicant who was facing deportation and a re-entry ban from Belgium following multiple criminal convictions. While in prison he had been diagnosed with various serious illnesses including chronic lymphocytic leukaemia and he argued returning him to Georgia and thus removing the treatment for these illnesses would violate Article 3. The initial Chamber decision followed the principles set down by N and decided that due to the current treatment the Applicant’s condition was stable, his life therefore was not in imminent danger and so he was fit to travel meaning there was no violation of Article 3. The Grand Chamber, however, took a different approach, noting that since N no other case had fallen within the ‘very exceptional circumstances’ test135 and went on to expand on what other types of circumstances should fall within that test: The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.136

The Grand Chamber went on to clarify how this right was to be protected in national measures laying out that applicants should ‘adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3’,137 recognising that a ‘certain degree of speculation is inherent’,138 and that if such evidence is adduced it is for the state to dispel any doubts it raises.139 The Grand Chamber also placed a duty on the state to verify in each case ‘whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness’,140 and if ‘the individual in question will actually have access to this care’141

134 Paposhvili 135 Para

178. 136 Para 183. 137 Para 186. 138 ibid. 139 Para 187. 140 Para 190. 141 ibid.

v Belgium App No 41738/10 Judgment (n 1).

148  The Prohibition on Torture by taking into account factors such as ‘the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care’.142 If doubts persist, then the state must seek ‘individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned’.143 The Grand Chamber concluded that, in the current case, there would be a violation of Article 3 if the Applicant was returned using the current procedure in Belgium which did not individually assess the Applicant’s risk to his health in the receiving state. This different approach by the Court was confirmed and followed in the case of Savran v Denmark.144 There is actually some debate as to how much Paposhvili represents a recanting of the prior case law. For example, in the English case AM (Zimbabwe)145 Lord Justice Sales found that the Grand Chamber ‘only intended to make a very modest extension of the protection under Article 3 in medical cases’146 and that the Paposhvili case actually confirms N by referring consistently to this case, the ‘very exceptional circumstances’ test and its desire to ‘clarify’ it.147 This interpretation was, however, departed from by the UK Supreme Court on appeal: ‘The Grand Chamber’s pronouncements in the Paposhvili case … can on no view be regarded as mere clarification of what the court had previously said’.148 Khan has argued that there is much evidence that Paposhvili was a direct move away from N and a recognition of criticism levied at that case law. He cites the various strong dissenting judgments since N, the fact that the Grand Chamber referred to the N case as having ‘deprived’ seriously ill migrants from benefiting from the provision and the fact that the Court’s President Guido had said it is a departure from N and a response to the dissent around that case law.149 It is also relevant that Judge Lemmens in his Concurring Opinion in Paposhivili spoke of the ‘gap’ created by N which this case will fill.150 This interpretation of the Court moving firmly away from the approach in N is also further reiterated by the strong Dissenting Judgment in the Savran case that followed it. This case concerned an applicant suffering from paranoid schizophrenia who was to be deported to Turkey and found the Danish authorities had not properly considered the accessibility of certain aspects of his treatment in Turkey. Three of the seven judges dissented and argued that this case did not 142 ibid. 143 Para 191. 144 Savran v Denmark (n 2). 145 AM (Zimbabwe) v Secretary of State for the Home Department [2018] 1 WLR 2933. 146 Para 39. 147 ibid. 148 AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, para 32. 149 B Khan, ‘From D v UK to Paposhvili v Belgium: Assessing the Strasbourg Court’s Legal and Institutional Approach to the Expulsion of Seriously Ill Migrants Under Article  3 of the European Convention on Human Rights’ (2019) 25 Columbia Journal of European Law 223, 243. 150 Paposhvili v Belgium App No 41738/10 Judgment (n 1) Concurring Opinion of Judge Lemmens, para O-3.

Conclusion  149 follow Paposhvili which, they find, maintained a high bar for healthcare removals and this high bar was not reached in Savran: [T]he majority have seized the first available opportunity to further broaden the scope of Article 3 in this sensitive area, thus in practice pushing wide open the door that the Grand Chamber deliberately and for sound legal and policy reasons decided only to open slightly compared to the previous strict case law.151

The dissenters explicitly stated they thought the majority judgment in Savran ‘represents a lowering of the requirements established in the recent judgment of the Grand Chamber’.152 How the Court decides to proceed in subsequent cases remains to be seen, but for the moment the wider test laid down in Paposhvili remains the new authority for healthcare removal cases.

IV. Conclusion Article 3 is an absolute right which cannot be qualified, and violations cannot be justified. It represents a significant barrier for states who wish to remove migrants and the Court has generally been very firm in maintaining that barrier despite the potential political sensitivity. Foundational case law such as Soering, Chahal and Saadi all concerned situations where the foreign national was suspected of criminal offences and Article 3 remained the only hurdle for states to overcome. The Court’s case law is not perfect; its approach to diplomatic assurances and returns to situations of general violence has been criticised. The case law on healthcare removals for years represented a significant limitation on the application of Article  3 for migrants and was not in line with other case law. It rendered the protection of Article 3 largely illusory and arguably compromised the absoluteness of Article 3. This was based on reasoning which was similarly problematic to many of the other issues discussed throughout this book. The more recent approach of the Court, however, demonstrates its ability to change course in the face of much criticism and provides hope that it may similarly listen to critiques of other areas of its case law.

151 Savran v Denmark (n 2) Joint Dissenting Opinion of Judges Kjolbro, Motoc and Mourou-Vikstrom, para O-9. 152 ibid, para O-21.

6 Moving Beyond Criminalisation: A Two-Tier System Human rights are, by their very nature, meant to be extended to all persons regardless of background. This book has argued that immigrants are being denied their full rights through interpretations which fail to take into account ­problematic practices. They can be detained much more easily than any other category of persons. They are denied the right to a fair trial in many cases, meaning their rights are not substantially protected against state power. They are not fully protected against subjection to torture, inhuman or degrading treatment. Although certain exceptions and derogations to certain human rights may be permitted, the level of discretion given to states over immigrants threatens this principle: Human rights treaties guarantee all the rights contained therein to all persons unless they explicitly or impliedly permit derogation. Immigration status is usually irrelevant. Border control is an important derogating interest but it cannot support unconstrained measures against unauthorised foreigners. To do so puts membership of a nation (or at least immigration status) above personhood as the precondition for fundamental rights.1

In this chapter the consequences of the case law of the European Court of Human Rights (ECtHR) and why it has developed in this way will be explored. The first section will discuss the two-tier system of human rights and criminal justice created by the case law. The second section will consider why the case law has developed in this way. It will examine the influence of the ‘state control principle’ which refers to the idea that states have very broad powers over immigration. The third and fourth sections consider the other repercussions of the case law. Section III discusses the danger that the ECtHR’s current approach poses to the fight against discrimination, specifically racial discrimination. Section IV will explore the idea that eroding the rights of one section of the community can lead to the erosion of rights for all.



1 D

Wilsher, Immigration Detention: Law, History, Politics (Cambridge University Press 2011) xvi.

A Two-Tier System  151

I.  A Two-Tier System Human rights are generally conceived as rights ‘held by all by virtue of their humanity’.2 The Universal Declaration of Human Rights was not the first document to proclaim this3 but it was the first ‘building block’ of the modern human rights system.4 It reaffirms this idea of the universality of rights: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.5

This is the ‘indispensable premise’ of human rights.6 Immigrants are human beings and thus they clearly fall within the category of ‘everyone’. They may thus be defined as having the relevant ‘personhood’ for the enforcement of these rights. Although personhood in philosophical conceptions of human rights can refer to whether or not a person has the requisite agency of humanity and thus may exclude certain categories of people such as infants,7 the term is not meant this way here. Rather it is meant to stand in contrast to the model of citizens’ rights and thus negate the problem of human rights developing in a Westphalian state system whose focus in primarily on citizens.8 It is thus understood to mean the broadest category of people, in the same way as Linda Bosniak uses the term: ‘Personhood stands for the universal, in contrast to citizenship which is ultimately exclusionary’.9 As citizenship is an exclusionary position which can be denied or

2 R Cruft, M Liao and M Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) 1. See also J Griffin On Human Rights (Oxford University Press 2008); M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011). 3 See, eg, the American Declaration of Independence 1776 or the French Declaration of the Rights of Man 1789. 4 Cruft, Liao and Renzo (eds) (n 2) 1. 5 Universal Declaration on Human Rights (10 December 1948) Article 2. 6 R Dworkin ‘Terror and the Attack on Civil Liberties’ (2003) 50 New York Review of Books 1. 7 See Griffin (n 2); and J Tasioulas, ‘On the Foundations of Human Rights’ in R Cruft, M Liao and M Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015). 8 H Arendt, The Origins of Totalitarianism (Harcourt, Brace and Jovonovich 1966); G Cornelisse, ‘Human Rights for Immigration Detainees in Strasbourg: Limited Sovereignty or a Limited Discourse?’ (2004) 6 European Journal of Migration and Law 93; S Benhabib, The Rights of Others: Aliens, Residents, Citizens (Cambridge University Press 2004); N Fraser, Scales of Justice (Columbia University Press 2010); G Cornelisse, ‘Immigration Detention and the Territoriality of Human Rights’ in N De Genova and N Peutz (eds), The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Duke University Press 2010); Dembour and Kelly (eds) (n 2). 9 L Bosniak, ‘Human Rights within One State: Dilemmas of Personhood in Liberal Constitutional Thought’ in M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011) 202.

152  Moving Beyond Criminalisation withdrawn, it is considered a poor choice for the grounding of rights. Personhood is considered preferable due to the assumption that ‘What is not granted cannot be taken away’.10 As pointed out by Bosniak, however, personhood is not free from manipulation either. There are clear examples throughout history (slavery being the most obvious) of people being denied the status of ‘person’ through legal and political channels. Her study focuses on the US courts and their treatment of noncitizens, but her conclusions can apply equally to the treatment of immigrants in the ECtHR. Immigrants are not having their personhood ‘formally withdrawn’11 because the ECtHR maintains that human rights are guaranteed on the basis of humanity but, due to its case law, the personhood of immigrants is being ‘diminished in its effect, evaded, effaced, diluted, displaced’.12 The result is a two-tier human rights system. The idea of a two-tier human rights system is the antithesis to the function and purpose of human rights and, as demonstrated in this book, this approach also results in a two-tier criminal justice system. The first tier applies to citizens and generally conforms to the due process model as developed by Herbert Packer.13 This tier is characterised by stringent procedural safeguards which prevent the state from abusing its power and which try to prevent punishment being inflicted on a person unless punishable behaviour, as set down by the criminal law, has been proven beyond reasonable doubt. As illustrated by Packer, this tier is akin to an obstacle course that the authorities must get through to prove the guilt of a person. In order to reach their end goal, punishment, the authorities must surmount these obstacles; there is no way around them. The second tier is reserved for non-citizens and can materialise in various ways. A non-citizen accused of criminal behaviour may be entered into the normal criminal justice system and thus accorded the safeguards in the first tier of the criminal justice system. The difference in this scenario relates to their punishment. If found guilty, their punishment will be different from, and in many cases much harsher than, a citizen’s would be because they may be subjected to a deportation order and potentially prolonged immigration detention after their sentence. If the non-citizen is found not guilty, then there may still be the ‘punishment’ of deportation and immigration detention based on their alleged criminal conduct through the immigration system, despite the acquittal. Finally, a non-citizen suspected of criminal behaviour may not enter the normal criminal justice system at all, but may instead be directly routed into the immigration system which has far fewer safeguards than the normal criminal justice system and will inflict the ‘punishment’ of immigration detention and deportation. This tier thus resembles Packer’s crime control model which is symbolised as a conveyor belt: the person goes into



10 A

Bickel, The Morality of Consent (Yale University Press 2017) 47 quoted in Bosniak (n 9) 205. (n 9) 207. 12 ibid. 13 H Packer, The Limits of the Criminal Sanction (Stanford University Press 1968). 11 Bosniak

How Did the Two-Tier System Come into Being?  153 the system and if the authorities run into an obstacle they cannot surmount they can simply divert the person onto a different track to ensure their arrival at the same destination. Despite the long existence of differential treatment of immigrants in ECtHR case law, the reality of a two-tier criminal justice system is really just starting to come to fruition now. Previously, states kept the administrative immigration system and the criminal law system separate. Some immigration offences were criminal offences and some immigration measures could be used following conviction or allegation of criminal conduct but the systems were not really entwined in the way they are now. The laws and practices of the two systems are now more tangled together and are much more widely and harshly used. Today the number of immigration offences which are criminal offences has significantly increased but the primary enforcement mechanism remains the administrative immigration system. The criminalisation of an act signals certain moral condemnation and the attached stigma. Thus, criminalising something is supposed to be accompanied by criminal justice procedural protections to safeguard against abuses of state power. For immigration offences, however, these procedural safeguards can be easily circumvented. The more immigration law becomes characterised as a criminal law issue, the more of a problem this becomes. Immigration measures imposed after criminal conviction have also significantly increased and, in some countries, are an automatic result of certain crimes. The widespread use of these measures to deal with criminal law infractions, their increasing harshness and their portrayal to the public mean that they begin to resemble punishment in a way that they did not before. All these factors make a two-tier criminal justice system more apparent than before.

II.  How Did the Two-Tier System Come into Being? The two-tier system is the result of the significant amount of leeway given to states by the ECtHR when it comes to immigration issues. The principle that states have very wide powers in this area can be seen in the Court’s reference to the ‘undeniable sovereign right [of states] to control aliens’ entry into and residence in their territory’.14 This principle is not only frequently cited by the Court in immigration case law but is often its starting point.15 By starting its judgments with reference to this principle, the Court implicitly ascribes it immense significance and frames

14 Saadi v United Kingdom [GC] (2008) 47 EHRR 17, para 64. 15 M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 4. See, eg, Chahal v United Kingdom (1997) 23 EHRR 413, para 73; Uner v Netherlands (2007) 45 EHRR 14 para 54; N v United Kingdom (2008) 47 EHRR 39, para 30; Popov v France (2016) 63 EHRR 8, para 117.

154  Moving Beyond Criminalisation the human rights issue as concerning rights over the immigrant rather than the rights of the immigrant. In fact, this principle played a role in the drafting of the Convention itself. Marie-Benedicte Dembour has described this in depth.16 One of the first drafts of the Convention stipulated that states were required to provide the rights to ‘all persons residing within their territories’ but Italy wanted this to be changed to ‘all persons living in their territories’. In reaction to this amendment, a clause restricting the rights of aliens was sought by other states. The initial proposition of an ‘aliens clause’ curtailed political rights for immigrants such as freedom of expression, association and assembly but a much more extensive clause soon appeared in the draft Convention: Each State shall be competent to establish the particular rules applicable within its territory for the ensurement and exercise of the rights enumerated in Article 2, paragraph 3, [prohibiting arbitrary detention and providing for a fair trial], 6,7,8 and 9 [the political rights listed above] by persons who are not its nationals.17

The idea of limiting immigrants’ rights to a fair trial and freedom from arbitrary detention was thus already apparent before the Convention had even come into being. This clause was ultimately changed to one which simply restricted an immigrant’s political rights under the right to freedom of expression and assembly. This clause is present in the Convention today as Article 16. Why the States decided to drop the reference to restricting immigrants’ access to freedom from arbitrary detention and the right to a fair trial is not clear, but it is likely linked to the fact that the concept of unbridled state power over immigrants was already entrenched. The ECtHR is not alone in using this principle; it is present across international law: ‘The prerogatives of a nation-state when it comes to refusing access, residence, or naturalization to its territory have not been put into question’.18 Many courts use very strong wording when discussing this principle: the ECtHR refers to the right as ‘undeniable’ or ‘well-established’;19 the International Court of Justice refers to the ‘unfettered’20 right to refuse admission; the US Supreme Court conceives of the power as being ‘inherent in sovereignty and essential to its [state] self-preservation’.21 Schotel considers that this strong wording leads to a consensus that states do have this right without any need to explain or justify the rule. Instead

16 Dembour, When Humans Become Migrants (n 15) 42. 17 ibid, 48. 18 V Guiraudon and G Lahav, ‘A Reappraisal of the State Sovereignty Debate: The Case of Migration Control’ (2000) 33 Comparative Political Studies 163, 168. 19 Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 67. 20 Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Report 1 quoted in B Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012) 29. 21 Nishimura Ekiu v US 142 US 651 (1892) quoted in B Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012) 29.

How Did the Two-Tier System Come into Being?  155 ‘they simply report its validity as an uncontested matter of fact’.22 Yet the validity of this concept has been disputed by some scholars; it is often pointed out that this principle, which is now considered such as integral part of statehood, is in fact a ‘late nineteenth century artefact’.23 In the United Kingdom (UK), for example, foreigners were equally protected under the Habeas Corpus Act, meaning they could not be detained or expelled from the state without a trial. The first immigration legislation in the United Kingdom did not appear until the late 1700s and was a result of war between France and England. The Lord Grenville’s Alien Act 1793 was introduced due to concerns about the number of refugees from the French Revolution and the possibility of spies being among the refugees.24 The idea of restricting the entry of immigrants through executive power was debated in Parliament. This proposal was met with much protest – some Members of Parliament felt that denying due process rights to foreigners was ‘politically immoral’25 and would lead to the erosion of due process rights generally. The 1793 Act ultimately did not prohibit immigration but regulated immigrants in the United Kingdom by requiring them to register with the authorities. The Act was temporary and was abandoned in 1826 but some power over immigrants remained. The Registration of Aliens Act 1826 provided that immigrants must provide the authorities with information as to their residence in the United Kingdom every six months. In 1836, the Registration of Aliens Act repealed the 1826 Act. It relaxed the regime and only required that Masters of Ships inform the authorities as to how many foreigners were aboard their ships on arrival and that immigrants register with the ­authorities on arrival.26 It was not until 1905 that the first permanent immigration controls were passed in the United Kingdom which explicitly authorised the detention and expulsion of non-citizens who were considered undesirable. In passing this legislation some parliamentarians pushed for safeguards such as the need for an independent judge to adjudicate cases, seemingly based on concerns that detention and expulsion were punitive.27 The condition of an independent judge was agreed to but the legislation would prove to be the foundation of the two-tier justice system in existence today. It familiarised both the government and the public with the notion that strict control could be exercised over non-citizens.

22 B Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012) 30. 23 D Martin, ‘Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy’ (1989) 23 International Migration Review 547, 547. 24 JR Dinwiddy, ‘The Use of the Crown’s Power of Deportation Under the Aliens Act, 1793–1826’ (1968) 41 Historical Research 193. 25 Wilsher (n 1) 6. 26 See ‘Acts of Parliament and Migration Records – the 1800s’ (The National Archives), available at: webarchive.nationalarchives.gov.uk/+/http://www.movinghere.org.uk/galleries/roots/intro/­migration/ parliament3.htm. 27 Wilsher (n 1) 39.

156  Moving Beyond Criminalisation The Aliens Restriction Act 1914 demonstrated this by authorising the king, in times of emergency, to impose harsh restrictions and to easily expel both enemy and friendly aliens. This power was widely used with little real judicial scrutiny during the First World War. After the War was over, the authorities’ and judiciary’s attitudes towards immigration powers were entrenched, cementing the idea that the state had broad powers over the detention and expulsion of aliens and leading to the system that is in place today. Although this is a British history, other European countries followed a similar pattern: they did not introduce policies restricting the movement of people based on nationality until the late nineteenth and early twentieth century and this was accelerated by the First World War.28 There is evidence that around the time the state power principle was beginning to gain traction, there was clear opposition to it. As recently as 1889, a resolution was passed at the International Emigration Conference which stated ‘We affirm the right of the individual to the fundamental liberty accorded to him by every civilized nation to come and go and dispose of his person and his destinies as he pleases’.29 In 1892, the Institute of International Law adopted the ‘International Regulations on the Admission and Expulsion of Aliens’ which provided that ‘free entrance of aliens to the territory of a civilised state, may not be generally and permanently forbidden except in the public interest and for very serious reasons … and the protection of national labour is not, in itself sufficient reason for non-admission’.30 While these were never binding law, they do reveal that attitudes at the relevant time were not uniform and that its adoption was not unchallenged. The fact that the power is relatively new is not much of a criticism; it is merely intended to dispel the impression that states have forever thought of immigration in these terms and it does cast doubt on the validity of the uncritical stance courts take towards it. Regardless, the principle of broad state power in immigration matters is still influential in the ECtHR today and this book is interested in how it affects human rights protection and the possible future repercussions. In the next two sections, the way in which this principle may allow states to engage in discrimination and its potential to undermine human rights generally will be discussed.

28 J Nafziger, ‘The General Admission of Aliens Under International Law’ (1983) 77 American Journal of International Law 804, 809; J Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge University Press 2000); G Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff Publishers 2010); Dembour, When Humans Become Migrants (n 15) 43. 29 B Thomas, ‘International Migration and Economic Development’ (United Nations Educational, Scientific and Cultural Organisation, 1961) 9; Cornelisse, Immigration Detention and Human Rights (n 28) 167. 30 Articles 6 and 7 of the International Regulations on the Admission and Expulsion of Aliens’ Institute of International Law 1892 cited in A McMahon, The Role of the State in Migration Control: The Legitimacy Gap and Moves Towards a Regional Model (Brill 2016) 145.

Repercussions of the Two-Tier System: Discrimination  157

III.  Repercussions of the Two-Tier System: Discrimination Broad immigration powers give the state the ability to use discriminatory reasoning and tactics that would be considered unacceptable in other areas of law. The whole purpose of immigration power is to discriminate along nationality lines. Although discrimination on the grounds of nationality is not considered particularly problematic by states, it can result in discrimination on the grounds of ethnicity or race – a concept which most European states consider to be illegitimate. In this section, the danger of immigration powers being used to engage in racial discrimination will be discussed. It is not asserted that this is always the case, only that there is potential for this use. How the ECtHR examines cases on immigration policies for discrimination will be discussed to ascertain whether its approach is robust enough to adequately protect immigrants from racial discrimination.

A.  Discrimination and Immigration Powers James Nafziger has argued that the underlying rationale for this rule of ‘untrammelled discretionary power’31 in immigration matters is doubly flawed. Not only does it seek to assert a false history of consensus on the issue of state power over immigrants, but it is based on ‘questionable racist assumptions’.32 He is referring to the American case law on immigration but the principle seems to stand for European countries too: ‘The earliest migration controls were largely targeted at demonized racial and religious groups such as Asians or Jews’.33 This argument has been criticised by Bas Schotel who has argued that the original motivation for restrictions on immigration should not undermine the legitimacy of the state control principle because the rules ‘seem to have a standing of their own’.34 This is due to the fact that the principle of broad state power captured public popularity and became entrenched. This criticism, however, does not show that the power and its popularity have become wholly divorced from racist assumptions. There is certainly a danger that immigration powers can be used to further racist aims. In the 1950s, immigration to Britain from its former colonies including the West Indies, India and Pakistan increased. Race relations were poor which culminated in racist riots and attacks in Notting Hill in 1958.35 Ministerial committees



31 Nafziger 32 ibid.

33 Wilsher

(n 28) 805.

(n 1) 311. See also Torpey (n 28) 109–54. (n 22) 32. 35 R Winder, Bloody Foreigners: The Story of Immigration to Britain (Abacus 2004) 364. 34 Schotel

158  Moving Beyond Criminalisation began to look into the ‘immigrant problem’ and their discussion revolved around race. A new work permit regime was created and carefully designed to discreetly discriminate against non-whites.36 This was explicitly acknowledged to be the case by the then Home Secretary, Rab Butler, who admitted in a memorandum that the proposed Commonwealth Immigrants Act, while portrayed as racially neutral, ‘was intended to, and would in fact, operate on coloured people almost exclusively’.37 Despite this Act, immigrants from the Commonwealth continued to arrive in Britain and race relations continued to be strained. Politicians began to use explicitly racist language when talking about immigration; the Conservative candidate for Smethwick, Peter Griffiths, for example, publicly announced: ‘if you want a n***er for a neighbour, vote labour’.38 This was exacerbated a few years later when large numbers of East African Asians fled Kenya and Uganda due to widespread discrimination there. These people were not subjected to the Commonwealth Immigrants Act 1962 because they had retained their British passports when Kenya and Uganda became independent. The Commonwealth Immigrants Act 1968 was passed to further extend controls over Commonwealth immigration. The Act provided that exemption from immigration controls only applied to those whose parents or grandparents had become British citizens by being born or naturalised in the United Kingdom (the ancestry rule) or who had been a citizen of a country listed in section 1(3) of the British Nationality Act 1948 and had acquired British nationality under either the 1948 Act or the British Nationality Act 1964.39 The list of countries in section 1(3) did not include Uganda or Kenya but did include the predominantly ‘white Commonwealth’ New Zealand, Australia and Canada. The Act was a result of a populist campaign driven by the MP Enoch Powell.40 Within weeks of its enactment he made his famous ‘Rivers of Blood’ speech41 which is widely considered to be racist.42 Government correspondence and memoranda show that the discussion around this Act revolved around limiting the number of ‘coloureds’.43 The Act was challenged and taken to the European

36 Commonwealth Immigrants Act 1962. 37 ‘Commonwealth Migrants: Memorandum by the Secretary of State for the Home Department’ 6 October 1961 – cited in R Winder, Bloody Foreigners: The Story of Immigration to Britain (Abacus 2004) 369. 38 Stuart Jeffries, ‘Britain’s Most Racist Election: The Story of Smethwick, 50 years on’ Guardian (15 October 2014), available at: www.theguardian.com/world/2014/oct/15/britains-most-racist-electionsmethwick-50-years-on. Contradictorily, the Race Relations Act 1965 – which made explicit discrimination on the basis of race illegal – was also passed around this time. 39 Commonwealth Immigrants Act 1968, s 1. 40 A Lester, ‘Thirty years on: The East African Asians case revisited’ (2002) (Spring) Public Law 52. 41 ‘Enoch Powell’s “Rivers of Blood” Speech’ Telegraph (6 November 2007), available at: www.telegraph.co.uk/comment/3643823/Enoch-Powells-Rivers-of-Blood-speech.html, 1. 42 M Higgs, ‘Re-evaluating Enoch Powell’ (Institute of Race Relations, January 2014), available at: www.irr.org.uk/news/schofield-review/. 43 Lester (n 40) 60.

Repercussions of the Two-Tier System: Discrimination  159 Commission on Human Rights.44 The Commission considered the debates on the Act in Parliament and the fact that the United Kingdom had submitted that the Act’s intention was to promote ‘racial harmony’.45 It found that the Act was racially motivated and thus a violation of Article 14 of the Convention. In the 1980s, the Commission for Racial Equality investigated the use of immigration powers against Commonwealth citizens and found there was racial bias: ‘Restriction is applied almost exclusively to Black people: at UK ports of entry one in 140 visitors from the New Commonwealth is refused entry compared to 1 in 4,100 from the Old Commonwealth (Australia, New Zealand, Canada)’.46 The Report contained leaked Home Office documents which revealed that immigration officers made racist comments and relied on racial stereotypes. The Home Office at the time admitted that these revelations ‘might indicate a less than objective approach’.47 Furthermore, leaked Whitehall documents exposed a government policy of unofficial quotas and the imposition of significant delays in the process for those applicants from the Indian sub-continent.48 Given the current taboo surrounding explicit racism, it is very unlikely that modern politicians or legislation would directly refer to a person’s race or ethnicity. This does not mean that immigration legislation has become wholly divorced from racial considerations, however: [I]t takes some effort to decode apparently race-neutral immigration laws to reveal their hidden racial implications. This stems from the nature of racism at this moment in history. Racial discrimination is now more subtle than it once was. Discrimination is often conducted by proxy – targeting characteristics of minorities such as their failure to assimilate – as justification for direct racial attack.49

Discourse studies have found that the way in which people express their prejudices, including racial prejudices, has changed and tactics are often used to deny that they are racist.50 Research on political rhetoric surrounding immigration and immigration policies in the United Kingdom (and throughout Europe) has shown that politicians carefully craft speeches to avoid or pre-emptively defend themselves against accusations of racism. The underlying message and rhetoric

44 The Commission decision was confidential until the 1990s: East African Asians v United Kingdom (1995) 19 EHRR CD1. 45 East African Asians v United Kingdom (n 44) para 203. 46 Commission for Racial Equality Report cited in M Jacobs, ‘Immigration Controls and Racism’ (1985) 20 Economic and Political Weekly 1075. 47 Home Office cited in M Jacobs, ‘Immigration Controls and Racism’ (1985) 20 Economic and Political Weekly 1075. 48 ibid. 49 G Martinez, ‘Race and Immigration Law: A Paradigm Shift?’ (2000) 2 University of Illinois Law Review 517, 518. 50 For a good overview, see S Goodman and S Burke, ‘“Oh you don’t want asylum seekers, oh you’re just racist”: A Discursive Analysis of Discussions About Whether it’s Racist to Oppose Asylum Seeking’ (2010) 21 Discourse and Society 325.

160  Moving Beyond Criminalisation however, remains racist.51 Some brief public awareness of this issue became topical with some of the immigration policies of US President Donald Trump, especially the nicknamed ‘Muslim Ban’, which came close to explicit discrimination. The Executive Order referred to a travel ban on people from certain countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen).52 The former mayor of New York City, Rudy Giuliani, however, has said that the President approached him for advice on how to get a ‘Muslim ban’ through legally.53 The intention to ban Muslims from entering the United States was also explicitly stated by Trump prior to the 2016 presidential election.54 Some of the practices associated with the criminalisation of immigration have already become problematically close to racial discrimination. In the United Kingdom, for example, the ‘criminalisation’ of landlords who let to migrants led to a case alleging the policy was discriminatory and encouraged racial discrimination.55 This was initially found to be the case in the High Court judgment but was subsequently challenged at appeal where the Court of Appeal found that it does lead to discrimination ‘but only collaterally’.56 It found the level of discrimination was relevant and that ‘if the discrimination is greater than Parliament envisaged when enacting the provisions … then that is a matter for Parliament (or the Secretary of State) to address’.57 It found the provisions to be justified. This decision is being appealed to the UK Supreme Court. The intention here is not to assert that immigration policies or power are always bound up with racism, but merely to point out that immigration power can be used to achieve racist aims. This means that courts should be careful with how much latitude is given to states in this area. A lack of proper scrutiny could allow states to engage in racial discrimination with impunity. The below subsection will consider the Court’s case law in this area.

51 T Van Dijk, ‘Discourse and the Denial of Racism’ (1992) 3 Discourse and Society 87; P Chock, ‘Ambiguity in Policy Discourse: Congressional Talk about Immigration’ (1995) 28 Policy Sciences 165; T Van Dijk, ‘Ideologies, Racism, Discourse. Debates on Immigration and Ethnic Issues’ in J ter Wal and M Verkuyten (eds), Comparative Perspectives on Racism (Ashgate 2000); R Sales, ‘Secure Borders, Safe Haven: A Contradiction in Terms’ (2005) 28 Ethnic and Racial Studies 445; G Lewis and S Neals, ‘Introduction: Contemporary Political Contexts, Changing Terrains and Revisited Discourses’ (2005) 28 Ethnic and Racial Studies 423; R Capdevila and J Callaghan, ‘“It’s not Racist. It’s Common Sense”: A Critical Analysis of Political Discourse Around Asylum and Immigration in the UK’ (2008) 18 Journal of Community and Applied Social Psychology 1. 52 See ‘Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States’ (White House Press Office, 27 January 2017), available at: Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States – The White House (archives.gov). 53 ‘Trump travel ban hit by new legal setback’ (BBC News, 14 February 2017), available at: www.bbc. co.uk/news/world-us-canada-38972180. 54 ‘Trump’s promises before and after the election’ (BBC News, 16 June 2017), available at: www.bbc. co.uk/news/world-us-canada-37982000. 55 Immigration Act 2016, s 39. 56 R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, para 148. 57 ibid, para 147.

Repercussions of the Two-Tier System: Discrimination  161

B.  Racial Discrimination, Immigration Policies and ECtHR Case Law The ECtHR can adjudicate cases alleging racial discrimination. Beyond the clear point that it should engage in rigorous scrutiny where there are allegations of racism because non-discrimination is ‘a transversal principle in the international system of human rights protection’,58 the European Convention on Human Rights (ECHR) also contains provisions which explicitly prohibit discrimination. Article 14 of the ECHR provides that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This provision thus protects against discrimination within the application of the Convention. There is also a general prohibition on discrimination contained in Protocol 12 to the Convention which states: The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. … No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.59

Protocol 12’s effect is somewhat more limited than Article 14, however, as many states have either not signed Protocol 12 or have failed to ratify it.60 The ECtHR is nevertheless under a duty to prevent discrimination within the application of the Convention according to Article 14. In the first case on the matter, Abdulaziz, Cabales and Balkandali,61 the Applicants challenged immigration rules which did not allow female immigrants to bring their spouse to the United Kingdom but did allow male immigrants to bring theirs, with special exceptions to these rules for those with ‘ancestry’ links to the United Kingdom. The Applicants alleged discrimination on the grounds of both gender and race. On the point of race discrimination, they argued

58 L-A Sicilianos, ‘The European Court of Human Rights at a Time of Crisis in Europe’ (2016) 2 European Human Rights Law Review 121, 124. 59 Protocol 12 to the European Convention on Human Rights, Article 1. 60 Council of Europe, ‘Chart of Signatures and Ratifications of Treaty 177: Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms’ Status as of 30 September 2021, available at: dww.coe.int/en/web/conventions/full-list/-/conventions/treaty/210? module=signatures-by-treaty&treatynum=177. 61 Abdulaziz, Cabales and Balkandali v United Kingdom (n 19).

162  Moving Beyond Criminalisation that the new immigration rules effectively prevented immigration from the New Commonwealth and Pakistan while allowing free immigration from the Old Commonwealth (composed of a primarily white population) which demonstrated racial discrimination. Furthermore, they pointed to the debates in the Houses of Parliament on the rules which they argued contained admissions that the rules where intended to discriminate racially. When considering these allegations of race discrimination, the Court, first, referred to the fact that immigration policies will indirectly discriminate on the base of race and ethnic origin: Most immigration policies – restricting, as they do, free entry – differentiated on the basis of people’s nationality, and indirectly their race, ethnic origin and possibly their colour. Whilst a Contracting State could not implement ‘policies of a purely racist nature’, to give preferential treatment to its nationals or to persons from countries with which it had the closest links did not constitute ‘racial discrimination’. The effect in practice of the United Kingdom rules did not mean that they were abhorrent on the grounds of racial discrimination.62

It noted that a minority of the Commission had found a violation of the ­prohibition on racial discrimination on the basis that the main effect of the rules was to prevent immigration from the New Commonwealth and Pakistan. This was not coincidental: the legislative history showed that the intention was to ‘lower the number of coloured immigrants’. By their effect and purpose, the rules were indirectly racist and there had thus been a violation of Article 14.63

The Court did not examine this argument used by the minority of the Commission, but simply stated that it agreed with the majority of the Commission. It simply noted that the rules did not directly differentiate between people on the basis of race and immigration officers were instructed not to do so. Moreover, the Court then seemed to gloss over the fact that the UK government had put forward an arguably racist aim for the legislation. When it considered whether these rules were discriminatory on the grounds of gender, the Court referred to two arguments put forward by the government for this policy: (1) ‘According to the Government, the difference of treatment complained of had the aim of limiting “primary immigration” … and was justified by the need to protect the domestic labour market at a time of high unemployment’;64 and (2) ‘immigration caused strains on society; the Government’s aim was to advance public tranquillity, and a firm and fair control secured good relations between the different communities living in the United Kingdom’.65 The Court was not convinced by these arguments and found a violation of Article 14 in regard to



62 ibid,

para 84.

64 ibid,

para 75. para 76.

63 ibid.

65 ibid,

Repercussions of the Two-Tier System: Discrimination  163 gender. When it came to racial discrimination, however, the Court only referred to one of these justifications: [T]he main and essential purpose of the 1980 Rules was to curtail ‘primary immigration’ in order to protect the labour market at a time of high unemployment. This means that their reinforcement of the restrictions on immigration was grounded not on objections regarding the origin of the non-nationals wanting to enter the country but on the need to stem the flow of immigrants at the relevant time.66

It did not refer to the other purpose of the legislation which it had discussed only a few paragraphs above – to advance ‘public tranquillity’. The Applicants had responded to that reasoning by the government, arguing that it was not a legitimate justification: ‘the racial prejudice of the United Kingdom population could not be advanced as a justification for the measures’.67 The Court did not deal with this argument, merely stating that the mass immigration against which the rules were directed consisted mainly of wouldbe immigrants from the New Commonwealth and Pakistan, and that as a result they affected at the material time fewer white people than others, is not a sufficient reason to consider them as racist in character: it is an effect which derives not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others.68

Finally, the Court reasoned that the exceptions to these rules for those with ancestral links to the United Kingdom may favour those of certain ethnic origins but the Court considered the purpose of these provisions was to benefit people with close links to the United Kingdom and so there was no violation. The Court’s reasoning again seems problematic because it ignored one of the purposes of the legislation and does not seem to ‘justify the way things are’.69 In other cases, the Court has likewise failed to adequately address the question. In C v Belgium discussed in more detail below, the Applicant argued that he was discriminated against on the grounds of race as well as nationality. The Court simply referred to the ‘special legal order’ of the European Union (EU) despite the fact that race discrimination requires very weighty reasons to justify it. When it comes to racial discrimination, the Court acknowledges that immigration policies do indirectly discriminate on the basis of race.70 Since that case, the Court has subsequently acknowledged that indirect discrimination can result in a violation of the Convention.71 If immigration legislation is going to discriminate, 66 ibid, para 85. 67 ibid, para 76. 68 ibid, para 85. 69 M-B Dembour, ‘Gaygusuz Revisited: The Limit of the European Court of Human Rights’ Equality Agenda’ (2012) 12 Human Rights Law Review 689, 712. 70 Abdulaziz, Cabales and Balkandali v United Kingdom (n 19) para 84. 71 See, eg, Jordan v United Kingdom (2003) 37 EHRR 2, para 154; Hoogendijk v Netherlands (2005) 40 EHRR SE22; DH and Others v Czech Republic (2008) 47 EHRR 3; Orsus and Others v Croatia (2011) 52 EHRR 7; SAS v France (2015) 60 EHRR 11, para 161.

164  Moving Beyond Criminalisation it will most likely do so indirectly, given the reluctance of most governments to engage in explicit racism. By failing to properly scrutinise immigration legislation and how states bestow nationality, the Court also fails to properly consider whether discrimination on the basis of race and ethnicity is actually occurring. There is one recent case which does provide some hope for the future and is an excellent example of the kind of scrutiny necessary to safeguard against covert racial discrimination. In Biao v Denmark72 a challenge was made against the Danish rules regarding when a Danish citizen could bring a spouse from another country to live with them in Denmark. Under Danish law, the Applicant had to meet the ‘attachment requirement’ which demanded that the couple’s overall links to Denmark were stronger than they were to any other country. There was an exception to this for applicants who had been Danish citizens for 28 years or more, or who had legally lived in Denmark for 28 years or more. This was introduced when it became clear that the attachment requirement disadvantaged Danish expatriates. The Biao couple, who had been prevented from reuniting under this law, challenged it as indirectly discriminatory on the grounds of race. They argued that the majority of people who met the 28-year rule would be ethnically Danish, while those of other ethnic origins would likely not meet this rule until much later in life. The Chamber judgment of the Court was very dismissive of this claim, citing its similarity to Abdulaziz, Cabales and Balkandi discussed above.73 The Grand Chamber, however, accepted this argument. First, the Grand Chamber reiterated the case law on indirect discrimination and found that the policy amounted to such discrimination as it generally placed those from non-Danish ethnic backgrounds at a disadvantage. It then scrutinised the background to the Danish law to determine whether there was a legitimate aim based on objective factors unrelated to ethnicity. The government argued that the aim of this legislation was immigration control and to improve integration. The Court found that the main reasons for the introduction of the attachment rule were concerns about ethnic minority integration. When examining the debates around these concerns, the Court was not convinced that the law was based on objective facts. It cited Konstantin Markin v Russia74 and stated that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification for a difference in treatment on the ground of sex. The Court finds that similar reasoning should apply to discrimination against naturalised nationals’.75 The Court thus found a violation of Article 14 in conjunction with Article 8. This judgment shows that the Court may critically scrutinise government anti-immigration arguments, rather than taking them at face value. The Court demanded that the government provide



72 Biao

v Denmark [GC] (2017) 64 EHRR 1. v Denmark (Chamber) App No 38590/10 (ECtHR, 25 March 2014) para 90. 74 Konstantin Markin v Russia (2013) 56 EHRR 8. 75 Biao v Denmark (n 72) para 126. 73 Biao

Repercussions of the Two-Tier System: Discrimination  165 actual evidence for the policies it put forward and emphasised that policies based on no more than bias and assumptions were not acceptable. This judgment may have been influenced by the fact that this type of law was unusual in Europe and went against the prevailing ‘wind’ in this area of law: In the field of indirect discrimination between a State’s own nationals based on ethnic origin, it is very difficult to reconcile the grant of special treatment with current international standards and developments. Since the Convention is first and foremost a system for the protection of human rights, regard must also be had to the changing conditions within Contracting States and the Court must respond, for example, to any evolving convergence as to the standards to be achieved.76

The Court went on to discuss EU law, the European Convention on Nationality and the opinions of the European Commission against Racism and Intolerance and the Council of Europe Commissioner for Human Rights. Whether the Court would have been as likely to strongly criticise legislation which was common in European states is more doubtful. It is also noteworthy that this case focused on the discrimination among Danish nationals and found ethnic origin discrimination on that basis (Danish nationals of Danish origin and Danish nationals of foreign origin) and so it is possible that the effect of the case will be limited to such situations.77 Interestingly, Judge Pinto de Albuquerque argued that this should be a case of direct discrimination as he had ‘considerable doubts about the conclusion that the national authorities did not intend the discriminatory effects of the policy’.78 This represents an approach that looks at the substance of the rule and finds ‘a de facto and intended difference in treatment on the basis of race which is nevertheless cloaked in neutral language’.79 It is also relevant to note that there seems to be some inconsistency in the Court’s approach to whether discrimination on the basis of ethnic origin is capable of being justified at all.80 Despite its potential limitations, the case remains an important precedent in which the Court took a very robust approach to discrimination and immigration measures which may influence future case law.

i.  A Note about Nationality Immigration legislation will clearly discriminate on the grounds of nationality, that is its entire rationale. There are some scholars who assert that this is illegitimate: ‘[Nationality] is the legal fiction which creates difference where there is in fact similarity: “a man is a man is a man”. From this perspective, the chief function 76 ibid, para 131. 77 K de Vries, ‘Rewriting Abdulaziz: The ECtHR Grand Chamber Ruling in Biao v Denmark’ (2016) 18 European Journal of Migration and Law 467. 78 Biao v Denmark (n 72), Concurring Opinion of Judge Pinto de Albuquerque, para O-1. 79 M Moschel ‘The Strasbourg Court and Indirect Race Discrimination: Going Beyond Education’ (2017) 80 Modern Law Review 121, 126 80 ibid, 127.

166  Moving Beyond Criminalisation of nationality is to mask discrimination’.81 There is also a concern that discrimination on the grounds of nationality is dangerous because nationality and race often shade into one another. The Court has recognised that nationality and race can be ‘strongly connected’.82 A full discussion of the legitimacy of discrimination on the grounds of nationality is beyond the scope of this book, but a brief examination of the ECtHR case law in this area is revealing because it shows that it is very confused. Nationality has been accepted as a prohibited ground of discrimination by the EctHR. This was first recognised in the case of Gaygusuz v Austria,83 in which the Applicant argued that he had been discriminated against on the grounds of nationality by being denied emergency assistance from an unemployment insurance fund because he was not an Austrian national. He had made payments into the insurance fund. The Court found a violation of Article 14 in conjunction with Article 1 of Protocol 1 on the grounds of nationality. The Austrian government argued that it had a special responsibility towards its own nationals which justified this discrimination. The Court did not accept this, merely stating that it found this argument ‘unpersuasive’. The Court also stated that ‘very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention’ meaning the test for discrimination on the grounds of nationality is quite strict. The Court has since gone on to find violations on the grounds of nationality in several cases, most of which concern access to social rights.84 Looking beyond the social rights case law, however, there is little evidence that the Court seriously considers discrimination on the grounds of nationality to be problematic. An interesting case is that of MS v Germany.85 This case concerned an applicant who was a citizen of the former Yugoslavia residing in Germany. His extradition to the United States was requested because he was suspected of raping a woman in Texas. He argued that this was discrimination on the grounds of nationality because German citizens could not be extradited and thus have their family life adversely affected. The Court reiterated that only very weighty reasons could justify discrimination on the grounds of nationality but then went on to state that in the present case the Court finds that the difference in treatment has relevant and sufficient grounds. The Court cannot overlook that extradition is a matter of international law and that the responsibility of a State for its own nationals and for other persons

81 Dembour, When Humans Become Migrants (n 15) 193. 82 British Gurkha Welfare Society v United Kingdom (2017) 64 EHRR 11, para 58. See also East African Asians v United Kingdom (n 44); Abdulaziz, Cabales and Balkandali v United Kingdom (n 19). 83 Gaygusuz v Austria (1997) 23 EHRR 364. 84 Koua Poirrez v France (2005) 40 EHRR 2; Niedzwiecki v Germany (2006) 42 EHRR 33; Okpisz v Germany (2006) 42 EHRR 32; Luczak v Poland App No 77782/01 (ECtHR, 27 November 2007); Andrejeva v Latvia (2010) 51 EHRR 28. 85 MS v Germany App No 44770/98 (ECtHR, 20 January 2000).

Repercussions of the Two-Tier System: Discrimination  167 living on its territory in this field may vary. Thus, nationality is a distinction which, in the circumstances of the present case, must be considered as being based on an ‘objective and reasonable justification’.86

This reasoning is not particularly persuasive. It implies that because states take different approaches to nationality, then the treatment is justified which seems to fall short of the test of ‘very weighty reasons’ outlined in Gaygusuz. This weak reasoning can be seen in other Article 14 case law as well. In Moustaquim v Belgium,87 the Applicant complained that he has been discriminated against on the grounds of nationality because he was being subjected to deportation for committing a criminal offence. He argued this on the basis that Belgian juveniles who committed criminal offences could not be subjected to deportation and because EEA nationals would not be subjected to deportation for the same offence. The Court found no violation of Article 14, stating that: In the instant case the applicant cannot be compared to Belgian juvenile delinquents. The latter have a right of abode in their own country and cannot be expelled from it … As for the preferential treatment given to nationals of the other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order.88

The same argument was used in C v Belgium89 by a Moroccan national who challenged his deportation on the grounds of criminality as nationality discrimination because EEA/EU nationals could not be deported for the same crime. Again the Court simply referred to the ‘special legal order’90 as sufficient justification. Dembour argues that such reasoning is ‘entirely tautological’ and ‘do[es] nothing to justify the way things are’.91 This seems accurate; arguing that EU migrants may be given special treatment because the states have voluntarily set up a special relationship seems circular. This case law demonstrates the limitations of the Court’s current approach to discrimination; it does not appear to consistently apply the very weighty reasons tests or to properly scrutinise state reasoning behind certain policies. It is also notable that the ECtHR has failed to scrutinise how states define nationality, even though it is supposedly a ‘suspect’ criterion requiring weighty reasons to justify it and is the deciding factor in whether or not a person can be subjected to certain treatment such as deportation or immigration detention. Nationality is not a natural phenomenon; it is entirely created by states’ criteria and processes. The increased harshness of immigration systems in Europe has meant that many states have made it much more difficult to achieve citizenship.



86 ibid,

para 3.

87 Moustaquim

v Belgium (1991) 13 EHRR 802. paras 48–49. 89 C v Belgium (2001) 32 EHRR 2. 90 ibid, para 38. 91 Dembour, ‘Gaygusuz Revisited’ (n 69) 713. 88 ibid,

168  Moving Beyond Criminalisation In the United Kingdom, for example, the past 15 years have seen the introduction of stricter English language tests, a Life in the UK Test which checks the person’s effort to integrate, a stricter interpretation of the requirement of good conduct,92 and the imposition of ever higher fees (currently it costs £1,330 for naturalisation as a British citizen).93 Given the stakes involved for individuals, the ECtHR should examine the legitimacy or illegitimacy of the rules for bestowing nationality, but the Court has generally shown itself reluctant to do consider these kinds of questions. For example, in Patel v United Kingdom94 the Applicant argued that he had been discriminated against because he was subjected to deportation after committing a criminal offence whereas his brother (who was in prison for a similar offence) could not be subjected to deportation because he had obtained British nationality. The Applicant argued that the only real difference between them was that his brother had been able to afford the (then) £250 fee for the British citizenship process whereas he could not. The Commission did not address this argument. Thus, the Court often allows states to discriminate on the grounds of nationality without much scrutiny. The inconsistency in the case law demonstrates the Court’s inability fully to articulate a position on nationality discrimination. This can be problematic because, as mentioned above, immigration policies usually do not refer directly to race but to nationality – this, however, may be used as a cloak for racial discrimination. Without a fully developed position on nationality discrimination which includes a degree of in-depth scrutiny, the Court will fail to uncover potential racial discrimination in immigration policies.

IV.  Repercussions of the Two-Tier System: The Erosion of Rights This two-tier system of human rights is also undesirable because it may lead to the erosion of rights for everyone. When rights are eroded in one sphere, it is not unusual for this erosion to spread more generally to the rights in question. Human rights case law has caused much public debate over who ‘deserves’ rights and who does not. The situation of migrants is ripe to spread to other areas of ‘undesirable’ people and eventually to affect everyone. The treatment of migrants in ECtHR case law is thus a dangerous precedent for all those who come under the jurisdiction of the Court. 92 Scott Blinder, ‘Naturalisation as a British Citizen: Concepts and Trends’ (Migration Observatory, 8 August 2018), available at: Naturalisation as a British Citizen: Concepts – Migration Observatory – The Migration Observatory (ox.ac.uk). 93 Home Office, ‘Fees with Effect From 6 April 2018 for Citizenship Applications and Right of Abode’, available at: Fees for citizenship applications and the right of abode from 6 April 2018 – GOV.UK (www.gov.uk). 94 Patel v United Kingdom App No 16009/90 (Commission Decision of 6 September 1991).

Repercussions of the Two-Tier System: The Erosion of Rights  169 David Cole has discussed this subject extensively with reference to the United States. He argues that ‘history suggests the transition [from denying rights to aliens to denying rights to all] is virtually inevitable and that therefore in the long term, the rights of all of us are in the balance when the government selectively sacrifices foreign nationals’ liberties’.95 After the attacks in New York on 11 September 2001, the United States passed a number of laws which denied rights to foreign nationals but not to citizens. One early example of this began in 2001: President Bush issued a military order which provided that noncitizens who had been accused of terrorism could be tried by military tribunal, without access to the normal criminal justice system.96 The targeting of noncitizens was justified on the grounds of desert: ‘They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process’.97 The distinction between citizen and noncitizen seemed confirmed when John Walker Lindh, a US citizen, was accused of terrorism and was tried in the ordinary criminal courts. This was explicitly explained by the Attorney General with reference to the fact that the President’s order did not apply to US citizens.98 A few months later, another US citizen – Yasser Hamdi – was discovered to be among the prisoners kept at Guantanamo Bay. Rather than release him into the ordinary criminal justice system, the authorities decided to extend the use of military tribunals to citizens as well. In 2002, they went even further. Hamdi had been captured by the military on the battlefield and thus fell into the definition of unlawful combatant. The US citizen Jose Padilla, on the other hand, was arrested by US police in Chicago. The authorities labelled Padilla an ‘enemy combatant’ and removed him from the ordinary criminal justice system and into military custody.99 This account, as Cole asserts, shows that it is politically tempting to deprive or restrict the rights of non-citizens because they have little sway or voice in politics, but that this type of action just paves the way for the extension of these restrictions to citizens.100 This is an American example but there are European ones too. For example, ‘Closed Proceedings’ were initially introduced in the United Kingdom

95 D Cole, Enemy Aliens (The New Press 2003) 5. 96 Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed Reg 57833 (13 November 2001). 97 Then Vice President Dick Cheney quoted in Elisabeth Bumiller and Steven Myers, ‘Senior Administration Officials Defend Military Tribunal for Terrorist Suspects’ New York Times (15 November 2001) B6. 98 Although the case law of the United States would have allowed for Lindh to be tried by military tribunal anyway so long as he was designated an ‘unlawful combatant’ see Ex parte Quirin 317 US 1 (1942). 99 Stephen Hedges, ‘US Flouts Legal Rights, Lawyer Says; Suspect in Bomb Plot is a Citizen’ Chicago Tribune (12 June 2002), available at: articles.chicagotribune.com/2002-06-12/news/0206120249_1_ jose-padilla-abdullah-al-muhajir-lawyer-donna-newman. 100 Cole (n 95) 4–5.

170  Moving Beyond Criminalisation for ­immigration cases with the Special Immigration Appeals Commission.101 ‘Closed Proceedings’ are Court proceedings in which the party to the case may be wholly or partially excluded if the government is relying on ‘sensitive’ evidence. As this was focused on immigration cases, the clear targets were non-nationals. However, this was extended to cover cases concerning control orders which could be applied to both citizens and non-citizens.102 This has recently been further extended to cover any civil proceedings.103 The expansion of ‘Closed Proceedings’ in the United Kingdom demonstrates the ability of a niche restriction targeted at foreigners to gradually spread to the general population. Likewise, the United Kingdom has continuously broadened its citizenship stripping powers to now include those who are citizens by birth.104 As Valsamis Mitsilegas has pointed out, the introduction of biometric surveillance in passports also follows this pattern. It was first envisioned for non-citizens in the United States, then extended to US citizens and then to EU citizens through US political pressure.105 This ‘slippery slope’ argument is all the more plausible given the rhetoric surrounding human rights in many European countries, which focuses on the rights of ‘undesirables’. Much of this discourse has particularly focused on foreign criminals106 but it is not limited to them. For example, in Switzerland populist initiatives have resulted in lifelong detention for violent and sexual offenders, a measure which is likely at odds with human rights.107 In Poland, criminals are portrayed as non-human and un-Polish by Poland’s Law and Justice Party which is currently the largest party in the Polish Parliament.108 The Roma community in various Central European states is frequently attacked as synonymous with criminality and also have their humanity questioned. For example, Miroslav Sladek, leader of the Republican Party in the Czech Republic, has said, ‘For the Gypsies, the age of criminal responsibility should be from the moment of birth because being born is their biggest crime’.109

101 Special Immigration Appeal Commission Act 1997. 102 Prevention of Terrorism Act 2005. Now replaced with Terrorism Prevention and Investigation Measures which are very similar and can also be the subject of close proceedings: Terrorism Prevention and Investigation Measures Act 2011. 103 Justice and Security Act 2013. 104 Nationality, Immigration and Asylum Act 2002, s 4; Immigration, Asylum and Nationality Act 2006, s 56; Immigration Act 2014, s 66. 105 V Mitsilegas, ‘Immigration Control in an Era of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 9 Indiana Journal of Global Legal Studies 3, 17–18. 106 L Fekete and F Webber, ‘Foreign Nationals, Enemy Penology and the Criminal Justice System’ (2010) 51 Race and Class 1. 107 D Moeckli, ‘Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights’ (2011) 11 Human Rights Law Review 774, 775. 108 L Haney, ‘Prisons of the Past: Penal Nationalism and the Politics of Punishment in Central Europe’ (2016) 18 Punishment & Society 346, 358. 109 Quoted in R Fawn, ‘Czech Attitudes Towards the Roma: Expecting More of Havel’s Country’ (2001) 53 Europe–Asia Studies 1193, 1202.

Repercussions of the Two-Tier System: The Erosion of Rights  171 Many European states have seen a rise in this kind of penal populism which often attacks the rights of those who are ‘undesirable’ or who are deemed ‘undeserving’:110 When rights are referred to in penal populist discourse, it is usually the rights of the public at large to safety and security, and the withdrawal of rights from those very groups (immigrants, asylum seekers, criminals, prisoners) on whose behalf other social movements are campaigning for.111

For example, the attitude of much of the British public and media can be described with reference to quote by Michael Howard: ‘there is now a palpable sense of outrage that so-called human rights have tipped the balance of justice in favour of the criminal and wrong-doer, rather than the victim and the law-abider’.112 There is, then, a sense that human rights unfairly or unjustly protect criminals or other ‘wrong-doers’ such as so-called ‘benefits cheats’. The logic underlying much of this discourse is that ‘human rights are earned, that they are “payback” for good citizens and hence can be taken away from bad citizens’.113 This is essentially the idea behind Gunther Jakobs’ concept of ‘enemy penology’.114 Jakobs is a German criminal law professor whose idea of ‘Feindstrafrecht’ (‘enemy penology’ or ‘criminal law for enemies’) proposes a separate criminal law for certain categories of people. Jakobs argues that ‘notorious delinquents’, which include numerous different types of dangerous individuals such as sex offenders, those involved in organised crime and political criminals, have lost their right to be treated equally to citizens because they represent ‘a fundamental threat to society’.115 This separate criminal system would thus strip those subjected to it of much of the procedural protections associated with the criminal law. In discussing this concept, Jakobs has not only explicitly stripped ‘notorious delinquents’ of their rights but also of their humanity: ‘Enemies are currently non-persons’.116 As pointed out by Susanne Krasman, such rhetoric is comparable to the treatment of undesirable offenders under the Nazi regime.117

110 S Snacken, ‘Resisting Punitiveness in Europe’ (2010) 14 Theoretical Criminology 273; J Pratt, Penal Populism (Routledge 2007) 172. 111 Pratt (n 110) 21. 112 ‘Howard on Law and Order: Full Text of Michael Howard’s Speech on Law and Order’ (BBC News, 10 August 2004), available at: news.bbc.co.uk/1/hi/uk_politics/3551318.stm. 113 A Mooney, ‘Human Rights: Law, Language and the Bare Human Being’ (2012) 32 Language & Communication 169, 175. 114 G Jakobs, ‘Kriminalisierung im Vorfeld einer Rechtsgutsverletzung’ (1985) 97 Zeitschrift für die Gesamte Strafrechtswissenschaft 751; G Jakobs, ‘“Bürgerstrafrecht und Feindstrafrecht”, Höchstrichterliche Rechtsprechung Strafrecht’ (2004) 5 Onlinezeitschrift für Höchstrichterliche Rechtsprechung zum Strafrecht 88. See S Krasmann, ‘The Enemy on the Border’ (2007) 9 Punishment & Society 301; or Fekete and Webber (n 106) for a discussion of Jakobs’ theory in English. 115 Krasmann (n 114) 302. 116 English translation of a quote from Krasmann (n 114) 303. 117 ibid, 303.

172  Moving Beyond Criminalisation Moreover, to suggest that human rights should only be given to ‘good’ people ‘makes a mockery of the concept’.118 Yet this concept has been used by the German far-Right to argue that foreign offenders should be treated differently from German offenders119 and it has gained attention in Spain, Italy and France.120 Many of the aspects of the criminalisation of immigration seem similar to the central tenants of enemy penology – disproportionate sanctions, the removal of procedural protections and attempts to pre-empt harm.121 This lends credibility to the idea discussed above that a two-tier criminal justice system is being created. The potential for this concept to spread its reach and undermine the entire system of rights in the criminal justice system has been noted: ‘to the extent that the State uses enemy criminal law to secure citizen criminal law it risks the whole existence of the latter’.122 The idea of the ECtHR extending its immigrant case law to other areas may still seem unlikely but it is important to note that an example of precisely this practice has already been discussed in this book. The case of Aleksanyan v Russia,123 which concerned the availability of free anti-retroviral treatment in prison is an example of this. This case primarily concerned whether the Applicant should have been moved from prison to a special healthcare facility. Previously under Article 3 ECHR, it was clear that resource concerns could not justify violations of Article 3 when it came to prisoners,124 and that failing to provide adequate medical care to sick prisoners could result in a violation of Article 3.125 In Aleksanyan, however, the Court seemed to allow resource concerns to be considered in determining whether there had been a violation of Article 3. It did this by relying on the prior approach in the healthcare removal immigration cases in which the Court had taken into account state concerns about resource allocation.126 This demonstrates the real danger that immigration precedent can spread to other areas of the Court’s case law.

118 Mooney (n 113) 176. 119 Fekete and Webber (n 106) 7. 120 D Ohana, ‘Trust, Distrust and Reassurance: Diversion and Preventive Orders through the Prism of Feindstrafrecht’ (2010) 73 Modern Law Review 721, 728. 121 L Zedner, ‘Is the Criminal Law Only for Citizens’ in M Bosworth and K Aas (eds), The Borders of Punishment (Oxford University Press 2013) 50. 122 C Gomez-Jara Diez, ‘Enemy Combatants versus Enemy Criminal Law: An Introduction to the European Debate Regarding Enemy Criminal Law and its Relevance to the Anglo-American Discussion on the Legal Status of Unlawful Enemy Combatants’ (2008) 11 New Criminal Law Review 529, 533. This has also been noted by various German scholars: an English language discussion of the debate over Feindstrafrecht in Germany is available in Ohana (n 120) 728–29. 123 Aleksanyan v Russia (2011) 52 EHRR 18. 124 Kalashnikov v Russia (2003) 36 EHRR 34; Aliev v Ukraine App No 41220/98 (ECtHR, 29 July 2003); Poltoratskiy v Ukraine (2004) 38 EHRR 25. 125 Kudla v Poland (2002) 35 EHRR 11, para 94. 126 Aleksanyan v Russia (n 123) para 148.

Conclusion  173

V. Conclusion This chapter has demonstrated that the significant amount of latitude given to states over immigration powers is problematic. The ECtHR’s approach to immigrants has meant their situation has moved beyond criminalisation and resembles a two-tier criminal justice and human rights system. The tier concerning immigrants’ rights emphasises state power and provides far fewer safeguards. This is clearly problematic from a moral point of view but it also poses other dangers. Immigration powers are an effective potential tool for trying to achieve racist or discriminatory aims. The failure to properly scrutinise immigration measures means that states may be able to get away with practising racial discrimination without challenge by the ECtHR. There is also a danger that the failure to properly protect the rights of immigrants will lead to a general erosion of rights. This has been seen in other spheres and the trend of penal populism makes this more likely. An example of this may have already occurred in Aleksanyan.

Conclusion Throughout this book, it has been demonstrated that characterising the current trend towards intertwining the criminal justice system with immigration control as pure criminalisation is perhaps misleading. This is not to say that the criminalisation framework is not immensely important. As outlined in chapter one, the criminalisation trend is evident across much of Europe. The idea of criminalisation is very useful in terms of broadly understanding the increased use of the criminal offences specific to immigration law and the increase in immigration measures as a response to criminal behaviour. It is clearly linked to the increased use of measures familiar to the criminal justice system such as detention, and the rhetoric in media and political discourse also often associate migration with criminality thus enabling and legitimising the use of such measures. The idea of pure criminalisation, however, implies that immigration issues are being brought under the umbrella of the criminal justice system and all the procedural safeguards that come along with it. The reality, however, is that states have continued to extensively use the administrative immigration system. For example, the state has made many of these immigration offences dual offences (they exist in both administrative law and in criminal law) meaning that it is given a choice between the rigorous criminal justice system or the much more lax administrative immigration system. This allows the state to opt for the less arduous journey and simply use immigration powers to deal with the immigrant. This is problematic because the criminalisation of a behaviour is a serious issue: it means a certain stigma is attached to the person who committed the offence and certain severe measures can be used to punish that person. That is why the criminal justice system has such strong procedural safeguards for defendants. Yet in the current situation, the state can still inflict the stigma and very similar punishment but without the concomitant safeguards. Thus, the ‘criminalisation’ of immigration is bizarrely accompanied by the ‘undercriminalisation’ of the immigration system.1 This means that the state can inflict the stigma and moral condemnation of the criminal law without having to actually endure the many obstacles of the criminal justice process. Chapter two of this book demonstrated this in relation to immigration detention. Detention is a practice commonly associated with the criminal justice system and as discussed in chapters one and two of this book immigration detention is

1 A Ashworth and L Zedner, ‘Preventative Orders: A Problem of Undercriminalisation’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford University Press 2010).

Conclusion  175 often experienced as and used to achieve goals similar to prison. However, it is much easier for the state to detain someone under immigration detention powers than under criminal justice powers. The European Court of Human Rights (ECtHR) has interpreted Article 5(1(f)) of the European Convention on Human Rights (ECHR) to carry a much lower standard of human rights protection than other forms of detention. Little explanation is given as to why this is the case and an in-depth consideration of the purposes of detention shows how illogical this approach is. Immigration detention and pre-trial detention have essentially the same purposes: to ensure the person does not abscond and for public protection. It is unclear, then, why it should be so much easier to keep someone in immigration detention without considering its necessity or proportionality. In fact, the standard used is similar to that of detention after conviction. This similarity is false, however, because prior to conviction a criminal defendant benefits from many safeguards throughout his trial and this is not the case for immigration decisions. Thus the protection for migrants from arbitrariness in detention is far less than other forms of detention protected under Article 5 of the ECHR. This is out of line with the interpretation of many other international human rights bodies. It also fails to take seriously the significant effects of detention and the potential abuse of its use as explored in much criminological and sociological literature. Chapter three of this book demonstrated the asymmetry of the criminalisation phenomenon by discussing how the ECtHR has not applied the right to a fair trial to immigration decisions despite the fact that immigration measures such as deportation and removal have become increasingly used as a response to crime. It has failed to do so even where it seems clear that there is potential for those immigration measures to be used punitively, such as when deportation is an automatic result of an offence. In other areas of law where states have classified measures relating to criminal convictions as non-criminal, the ECtHR has generally scrutinised these measures thoroughly. It has used the Engel criteria2 to look beyond state classification and to decide how such measures are actually used to determine whether they should be covered by the right to a fair trial. An examination of its case law on immigration measures and the criminal limb to the right to a fair trial reveals a very different approach. The European Commission on Human Rights and subsequently the Court have generally avoided an in-depth consideration of the use of immigration measures in these contexts. The little consideration that has been given relies heavily on state classification of such measures and hence weak and circular reasoning. This is problematic as it ignores much of the literature on the use and experience of such measures as punitive as well as providing little oversight to a process and measure which has significant personal, social and economic implications for the individuals subjected to it.

2 Engel

v Netherlands (1979–80) 1 EHRR 647.

176  Conclusion Thus, in many ways the situation of migrants in Europe today seems to have moved beyond criminalisation. If pure criminalisation were occurring then immigrants would, in a perverse way, be better off – they would be guaranteed the various stringent procedural protections that are supposed to accompany criminalisation and the state would not be able to circumvent those safeguards and yet impose similar outcomes. The situation, however, is even worse than it initially appears because of the way the ECtHR has given immigrants a lower standard of human rights than the rest of the general population in many other areas. The criminalisation phenomenon has been accompanied by many other harsh developments in immigration law and policy. For example, in the United Kingdom there has been a rise in the use of ‘civil exclusions’ which make access to features of everyday life, such as bank accounts or driving licences, dependent on immigration, as well as in policies rooted in efficiency that in reality restrict access to justice, such as the deport first, appeal later policy and the detained fast-track system for asylum claims. Chapter four explored how challenging such developments has been complicated by the failure of the ECtHR to extend the right to a fair trial to immigration decisions at all – excluding it from the civil limb of the right to a fair trial as well as the criminal. This decision seems out of line with the other case law in this area, in which the Court has typically been very generous with the application of Article 6 of the ECHR to various proceedings. As with much other case law on immigration issues, the Court gives very little meaningful reasoning for this approach. As a result, immigrants are again subjected to broad state powers with very little protection. Chapter five furthers this discussion by demonstrating how states have increasingly been unhappy with the limitation imposed by Article 3 of the ECHR on their discretion to remove non-nationals to another country. This chapter explored how the ECtHR has generally provided a robust defence of migrants’ rights in this area, though there are a few areas of criticism such as the use of diplomatic assurances and its approach to returns to situations of general violence. Most prominently, though, was the case of ‘healthcare removals’ where many academics, NGOs and judges within the Court perceived the case law as compromising the absolute character of the prohibition on torture, inhuman and degrading treatment or punishment when it comes to immigrants. In this case law, the Court explicitly allowed states to balance unproven concerns about ‘resources’ against Article 3 of the ECHR. In the final chapter, the reasons why the ECtHR has taken this approach were explored as were some of the troubling potential consequences of its case law. Right from its inception, the idea of states having very few constraints in relation to their immigration powers influenced the interpretation and drafting of the ECHR and led to the current situation where essentially a two-tier human rights and criminal justice system is being created. Beyond the clear moral issues with having a two-tier human rights and criminal justice system, the Court’s approach poses other dangers. The general failure of the Court to engage in proper scrutiny of state immigration power and policies means that it may allow racial discrimination to

Moving Forward  177 go unchecked. The approach of the Court to immigration matters may also seep into other areas of its case law and mean a general erosion of rights for everyone, immigrants and citizens.

I.  Moving Forward The criminalisation of immigration continues to be a popular practice with states with the criminalisation of solidarity and rescue as particularly prominent in recent years.3 Its popularity with states may be spurred on by the knowledge that the administrative immigration system with its lax procedural safeguards will continue to exist and will allow for the imposition of immigration measures with little scrutiny or judicial process required. If this increasingly harsh regime remains unchecked, then the system for human rights protection in European will continue to be undermined. The Court must make good on its ‘motto … that the Convention must be interpreted in a manner which renders its rights “practical and effective, not theoretical and illusory”’4 by being less deferential to states and not taking their claims in this area at face value.5 In order to fulfil its remit of ensuring that the rights of everyone within the jurisdiction of the High Contracting Parties are adequately protected, the Court must take a much more robust stance in cases concerning immigration issues and ensure that state power is properly scrutinised. It is worrying, however, that some of the other more recent case law to come from the Court seems to represent less robust protection for migrants. For example, the Grand Chamber decisions in Khlaifia v Italy6 and ND and NT v Spain7 have been heavily criticised as diluting the right to asylum and giving much ­deference to states.8 Likewise, the Grand Chamber recently seems to have diluted the principle set forth in Amuur9 that asylum seekers being able to voluntarily leave the country in which they apply for asylum does not rule out a deprivation of liberty, especially as seeking protection elsewhere is usually theoretical anyway.

3 Research Social Platform on Migration, ‘The Criminalisation of Migration in Europe’ (2020), ­available at: ReSoma-criminalisation-.pdf (migpolgroup.com). 4 G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 European Journal of International Law 509, 520. 5 See, eg, Deweer v Belgium (1979–80) 2 EHRR 439, para 44; Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 38; Welch v United Kingdom (1995) 20 EHRR 247, para 27; Stafford v United Kingdom (2002) 35 EHRR 32, para 64; Boulois v Luxemburg [GC] App No 37575/04 (ECtHR, 3 April 2012) para 92. 6 Khlaifia v Italy App No 16483/12 [GC] Judgment of 15 December 2016. 7 NT and ND v Spain App Nos 8675/15 and 8695/15 [GC] Judgment of 13 February 2020. 8 D Venturi, ‘The Grand Chamber’s ruling in Khlaifia and Others v Italy: one step forward, one step back?’ (Strasbourg Observers, 10 January 2017), available at: strasbourgobservers.com/2017/01/10/ the-grand-chambers-ruling-in-khlaifia-and-others-v-italy-one-step-forward-one-step-back/. 9 Amuur v France Judgment (1996) 22 EHRR 533.

178  Conclusion In the recent case of Ilias and Ahmed v Hungary,10 the Grand Chamber held that applicants who were detained in the transit zone between Hungary and Serbia while their asylum application was decided were not deprived of their liberty as they could simply walk from Hungary to Serbia. There is plenty of evidence in the ECtHR case law that there are and have been judges within the Court who are unhappy with the current interpretation of migrants’ rights. Many of the cases discussed in this book contained very strong dissenting opinions. In the Saadi case concerning the test for the lawfulness of an immigration detention, six judges dissented making the prescient point: Ultimately, are we now also to accept that Article 5 of the Convention, which has played a major role in ensuring controls of arbitrary detention, should afford a lower level of protection as regards asylum and immigration which, in social and human terms, are the most crucial issues facing us in the years to come? Is it a crime to be a foreigner? We do not think so.11

The Dissenting Opinion of several judges in the Maaouia case12 (on the right to a fair trial and immigration decisions) was discussed at length in chapter four and there is evidence that some judges in the Court think that it is high time for Maaouia to be revisited.13 Likewise, in the case law of healthcare removals, several judges expressed an explicit dissatisfaction with the current approach of the Court and a desire to revisit this case law.14 Judge Pinto De Albuquerque was particularly damning: Six years have passed since the N judgment. When confronted with situations similar to that of N, the Court has reaffirmed its implacable position, feigning to ignore the fact that the Grand Chamber sent N to her death. Too much time has elapsed since N’s unnecessary premature death and the Court has not yet remedied the wrong done. I wonder how many Ns have been sent to death all over Europe during this period of time and how many more will have to endure the same fate until the ‘conscience of Europe’ wakes up to this brutal reality and decides to change course. Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.15 10 Ilias and Ahmed v Hungary (2020) 71 EHRR 6. 11 Saadi v United Kingdom [GC] (2008) 47 EHRR 17, Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and Hirvela. 12 Maaouia v France (2001) 33 EHRR 42. 13 Marie-Benedicte Dembour reports that Judge Tulkens conveyed such a sentiment in a personal communication to her: M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 224. 14 Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR 35; SJ v Belgium (2015) 61 EHRR 21. 15 SJ v Belgium (2015) 61 EHRR 21, Dissenting Judgment of Judge Pinto De Albuquerque, para O-I12.

Moving Forward  179 As discussed in chapter five, the case law on Article 3 of the ECHR and healthcare removals demonstrates the power of critique, internally by the judges themselves as well as external scrutiny of the Court’s judgments. There is some debate as to how far the new precedent set by Paposhvili16 represents an explicit recognition by the Court of a wrong turn in the law and a completely new approach, but there has certainly been some shift in the case law especially given the judgment and dissenting judgment in Savran.17 There is evidence that this change of course was strongly influenced by the dissent around the previous case law in this area, and this case law demonstrates that the Court can change course when it comes to migrants’ rights.18 There are several precedents that the Court could build on to create a new approach to immigrants’ rights. The case law on immigration detention and children provides a strict test for the lawfulness of immigration detention which could be expanded to apply to adults and would be more in line with other case law under Article 5 of the ECHR.19 Indeed, this case law has already been extended to apply to an adult in one case.20 As for the right to a fair trial, the decision in Gurguchiani v Spain21 shows that the Court is capable of engaging in more robust scrutiny of the use of immigration measures, and that Article 6 of the ECHR is capable of applying to immigration decisions where those decisions, in reality, concern a punitive criminal measure. It may also take a cue from other important courts on the world stage; both the US Supreme Court22 and the Inter-American Court23 have considered the issue of immigration measures more carefully and with greater scrutiny. More recently, in Biao v Denmark24 the Court challenged immigration policies based on populist rhetoric and bias rather than actual evidence by engaging in a detailed examination of the actual impetus behind the policy under consideration. If the Court were to take a more robust approach moving forward, such an approach would certainly ignite criticism. Some of the rhetoric around leaving the Convention system in states such as the United Kingdom may be further inflamed.25 Unpopular decisions have been made by the Court before and it has 16 Paposhvili v Belgium App No 41738/10 Judgment [GC] 13 December 2016; see also Savran v Denmark [2019] ECHR 651. 17 Savran v Denmark (n 16) Joint Dissenting Opinion of Judges Kjolbro, Motoc and ­Mourou-Vikstrom, para O-9. 18 B Khan, ‘From D v UK to Paposhvili v Belgium: Assessing the Strasbourg Court’s Legal and Institutional Approach to the Expulsion of Seriously Ill Migrants Under Article 3 of the European Convention on Human Rights’ (2019) 25 Columbia Journal of European Law 223, 243; Concurring Opinion of Judge Lemmens, para O-3. 19 See, eg, Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2008) 46 EHRR 23; Rahimi v Greece App No 8687/08 (ECtHR, 5 April 2011) para 109; Popov v France (2016) 63 EHRR 8 para 119. 20 Yoh-Ekale Mwanje v Belgium (n 14). 21 Gurguchiani v Spain, App No 16012/06 (ECtHR, 15 March 2010). 22 Padilla v Kentucky 130 S Ct 1473 (2010). 23 Dembour (n 13). 24 Biao v Denmark [GC] (2017) 64 EHRR 1. 25 See KS Ziegler, E Wicks and L Hodson (eds), The UK and European Human Rights: A Strained Relationship (Hart Publishing 2015) for an overview and history of this debate in the United Kingdom.

180  Conclusion continued to operate and to hold an important influence over the legal systems of many European states. Many of the High Contracting Parties s­ eriously opposed limitations on their ability to remove people to states where they may be subjected to torture, inhuman or degrading treatment, but the Court remained firm and they eventually acquiesced.26 This book has demonstrated that the way in which migrants’ rights are currently protected by the ECtHR is not adequately protecting them from the criminalisation trend towards immigration nor many of the harsh measures that accompany it. The combination of the criminal system and the immigration system has effectively further undermined the already precarious human rights of immigrants. The possibility for this approach to have implications beyond the rights of migrants – to hinder the fight against racial discrimination and to erode the rights of us all – was also demonstrated in chapter six. Cases such as Paposhvili27 remind us of the potential power of dissenting critique from the current case law and that it is not too late for the Court to change course.

26 Soering v United Kingdom (1989) 11 EHRR 439; Chahal v United Kingdom (1997) 23 EHRR 413; Saadi v Italy [GC] (2009) 49 EHRR 30. 27 Paposhvili v Belgium (n 16).

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Books Aliverti, A, Crimes of Mobility: Criminal Law and the Regulation of Immigration (Taylor and Francis 2013) Anderson, B, Us and Them: The Dangerous Politics of Immigration Control (Oxford University Press 2015) Andreas, P, Border Games: Policing the US–Mexico Divide (Cornell University Press 2000) Arendt, H, The Origins of Totalitarianism (Harcourt, Brace and Jovonovich 1966)

186  Bibliography Aas, K and Bosworth, M (eds), The Borders of Punishment (Oxford University Press 2013) Baker, D, The Right Not to be Criminalised: Demarcating Criminal Law’s Authority (Ashgate 2011) Benhabib, S, The Rights of Others: Aliens, Residents, Citizens (Cambridge University Press 2004) Blake, N and Husain, R, Immigration, Asylum and Human Rights (Oxford University Press 2003) Boeles, P, Fair Immigration Proceedings in Europe (Martinus Nijhoff Publishers 1997) Bogusz, B, Cholewinski, R, Cygan, A and Szyszczak, E (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Martinus Nijhoff Publishers 2004) Bosworth, M, Inside Immigration Detention (Oxford University Press 2014) Brems, E and Gerards, J (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2014) Brooks, T, Punishment (Routledge 2012) Brotherton, D and Barrios, L, Banished to the Homeland (Columbia University Press 2011) Christofferson, J, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009) Clayton, G, Immigration and Asylum Law, 6th edn (Oxford University Press 2006) Cole, D, Enemy Aliens (The New Press 2003) Costello, C, The Human Rights of Migrants and Refugees in European Law (Oxford University Press 2016) Cornelisse, G, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff Publishers 2010) Cruft, R, Liao, M and Renzo, M (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) Dembour, M-B, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) Dembour, M-B and Kelly, T (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011) Drake, D, Prisons, Punishment and the Pursuit of Security (Palgrave Macmillan 2010) Duff, RA, Punishment, Communication and Community (Oxford University Press 2001) Ekrich, R, Bound for America: The Transportation of British Convicts to the Colonies 1718–1775 (Oxford University Press 1987) Fekete, L, A Suitable Enemy (Pluto Press 2009) Franko, K, Globalization and Crime, 3rd edn (Sage 2020) Fraser, N, Scales of Justice (Columbia University Press 2010) Griffin, J, On Human Rights (Oxford University Press 2008) Hathaway, J, The Rights of Refugees Under International Law (Cambridge University Press 2005) Herring, J, Criminal Law: Text, Cases and Materials, 6th edn (Oxford University Press 2014) Husak, D, Overcriminalization: The Limits of the Criminal Law (Oxford University Press 2008) Kanstroom, D, Deportation Nation (Harvard University Press 2007) Kaufman, E, Punish and Expel: Border Control, Nationalism and the New Purpose of Prison (Oxford University Press 2015) Kesby, A, The Right to Have Rights: Citizenship, Humanity and International Law (Oxford University Press 2012) Lambert, H, The Position of Aliens in Relation to the European Convention on Human Rights (Council of Europe 2007) Leerkes, A, Illegal Residence and Public Safety in the Netherlands (Amsterdam University Press 2009) McMahon, A, The Role of the State in Migration Control: The Legitimacy Gap and Moves Towards a Regional Model (Brill 2016) Packer, H, The Limits of the Criminal Sanction (Stanford University Press 1968) Palidda, S (ed), Racial Criminalization of Migrants in the 21st Century (Ashgate 2011) Pratt, J, Penal Populism (Routledge 2007) Rainey, B, Wicks, E and Ovey, C, The European Convention on Human Rights, 6th edn (Oxford University Press 2014)

Bibliography  187 Reneman, M, EU Asylum Procedures and the Right to an Effective Remedy (Hart Publishing 2014) Schotel, B, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012) Simester, AP and Von Hirsch, A, Crime, Harms and Wrongs (Hart Publishing 2011) Stone, R, Textbook on Civil Liberties and Human Rights (Oxford University Press 2014) Summers, S, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart Publishing 2007) Susnjar, D, Proportionality, Fundamental Rights and the Balance of Powers (Brill Publishing 2010) Torpey, J, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge University Press 2000) Triandafyllidou, A (ed), Irregular Migration in Europe: Myths and Realities (Ashgate 2010) Wilsher, D, Immigration Detention: Law, History, Politics (Cambridge University Press 2011) Winder, R, Bloody Foreigners: The Story of Immigration to Britain (Abacus 2004) White, R and Ovey, C, Jacobs, White and Ovey: The European Convention on Human Rights 5th edn (Oxford University Press 2010) Van Dijk, P and Van Hoof, G, Theory and Practice of the European Convention on Human Rights (Kluwer Law International 1998) Van Dijk, P, van Hoof, F, van Rijn, A, Zwaak, L, Flinterman, C and Heringa, A, Theory and Practice of the ECHR 4th edn (Intersentia 2004) van Kalmthout, A, Hofstee-van der Meulen, F and Dunkel, F (eds), Foreigners in European Prisons (Wolf Legal Publishers 2009) Van Zyl Smit, D and Snacken, S, Principles of European Prison Law and Policy: Penology and Human Rights (Oxford University Press 2009) Ziegler, KS, Wicks, E and Hodson, L (eds), The UK and European Human Rights: A Strained Relationship (Hart Publishing 2015)

Chapters in Edited Volumes Ashworth, A and Zedner, L, ‘Preventative Orders: A Problem of Undercriminalisation’ in RA Duff, L Farmer, SE Marshall, M Renzo and V Tadros (eds), The Boundaries of the Criminal Law (Oxford University Press 2010) Bosniak, L, ‘Human Rights within One State: Dilemmas of Personhood in Liberal Constitutional Thought’ in M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011) Bosworth, M, ‘Human rights and immigration detention in the UK’ in M-B Dembour and T Kelly (eds), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (Routledge 2011) Bowling, B and Westenra, S, ‘Racism, immigration and policing’ in M Bosworth, A Parmar and Y Vázquez (eds), Race, Criminal Justice and Migration Control: Enforcing the Boundaries of Belonging (Oxford University Press 2018) Cornelisse, G, ‘Immigration Detention and the Territoriality of Human Rights’ in N De Genova and N Peutz (eds), The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Duke University Press 2010) Dembour, M-B, ‘The Sleeping Beauty Awakens Late: An Absolute Prohibition with Many Buts (Around Soering)’ in M-B Dembour, When Humans Become Migrants: A Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) Duff, RA, ‘Perversions and Subversions of Criminal Law’ in RA Duff, L Farmer, SE Marshall, M Renzo and V Tadros (eds), The Boundaries of the Criminal Law (Oxford University Press 2010) Franko, K, ‘The Deviant Immigrant: Migration and Discourse About Crime’ in K Franko, Globalization and Crime, 3rd edn (Sage 2020)

188  Bibliography Larrauri, E and Jacobs, J, ‘A Spanish Window on European Law’ in T Daems, D van Zyl Smit and S Snacken (eds), European Penology? (Hart Publishing 2013) Majcher, I, ‘The Effectiveness of the EU Return Policy at All Costs: The Punitive Use of Administrative Pre-removal Detention’ in N Kogovšek Šalamon (ed), Causes and Consequences of Migrant Criminalization (Springer 2020) Maneri, M, ‘Media Discourse on Immigration: Control Practices and the Language we Live’ in S Palidda (ed), Racial Criminalization of Migrants in the 21st Century (Ashgate 2011) Pourgourides, C, ‘The mental health implications of detention of asylum seekers’ in J Hughes and F Liebaut (eds), Detention of Asylum Seekers in Europe: Analysis and Perspectives (Kluwer Publishing 1998) Raoult, S, ‘The Functional Ambiguities of Pre-Trial Detention in France’ in M Charret-Del Bove and F Mourlon (eds), Pre-trial Detention in the 20th and 21st Century Common Law and Civil Systems (Cambridge Scholars Publishing 2014) Stumpf, J, ‘The Process is the Punishment in Crimmigration Law’ in K Aas and M Bosworth (eds), The Borders of Punishment (Oxford University Press 2013) Tasioulas, J, ‘On the Foundations of Human Rights’ in R Cruft, M Liao and M Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) Van Dijk, T, ‘Ideologies, Racism, Discourse. Debates on Immigration and Ethnic Issues’ in J ter Wal and M Verkuyten (eds), Comparative Perspectives on Racism (Ashgate 2000) Zedner, L, ‘Is the Criminal Law Only for Citizens’ in K Aas and M Bosworth (eds), The Borders of Punishment (Oxford University Press 2013)

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Bibliography  193 Higgs, M, ‘Re-evaluating Enoch Powell’ (Institute of Race Relations, January 2014), available at: www. irr.org.uk/news/schofield-review/ Ilareva, V, ‘Immigration Detention in International Law and Practice: In Search of Solutions to the Challenges Faced in Bulgaria’ (Statewatch, 2007), available at: www.statewatch.org/news/2008/jan/ valeria-iIlareva-immigration-detention-bulgaria.pdf Kleist, N and Bob-Milliar, G, ‘Life after Deportation and the Migration Crisis: The Challenges of Involuntary Return’ (Danish Institute for International Studies, October 2013) Merlino, M, ‘The Italian (In)Security Package’ (Centre for European Policy Studies, 2013) Nelson, D (ed), ‘Migration and the Media’ (Migrant Voice, 2014) Parkin, J, ‘The Criminalisation of Migration in Europe’ (Centre for European Policy Studies 2013) Refugee Council ‘Response to the Home Office Consultation: Tackling Illegal Immigration in Privately Rented Accommodation’ (UK Refugee Council August 2013), available at: www.refugeecouncil.org. uk/assets/0002/9930/Refugee_Council_response_to_landlords_consultation.pdf Research Social Platform on Migration, ‘The Criminalisation of Migration in Europe’ (2020), available at: ReSoma-criminalisation-.pdf (migpolgroup.com) Right to Remain, ‘Politics Before Protection: the story of Eritrean asylum seekers in the UK’ (2017), available at: righttoremain.org.uk/politics-before-protection-the-story-of-eritrean-asylum-seekersin-the-uk/ Scott Blinder, ‘Naturalisation as a British Citizen: Concepts and Trends’ (Migration Observatory, 8 August 2018), available at: Naturalisation as a British Citizen: Concepts – Migration Observatory – The Migration Observatory (ox.ac.uk) Silverman, S and Griffiths, M, ‘Immigration Detention in the UK’ (Migration Observatory, 29 May 2019), available at: migrationobservatory.ox.ac.uk/resources/briefings/immigration-detentionin-the-uk/ Silverman, S and Hajela R, ‘Briefing: Immigration Detention in the UK’ (Migration Observatory, 6 February 2015), available at: migrationobservatory.ox.ac.uk/resources/briefings/immigrationdetention-in-the-uk/ Taylor, B, Girvan, A and Matthews, L, A History of Immigration Detention in the UK 1914–2018 (Right to Remain, 2018), available at: righttoremain.org.uk/wp-content/uploads/2018/09/Detention History.pdf Webber, F, ‘Border Wars and Asylum Crimes’ (Statewatch, 2008) Wengraf, T (ed), ‘What’s the Story? Results from Research into Media Coverage of Refugees and Asylum Seekers in the UK’ (Article 19, 2003)

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196

INDEX A and Others v United Kingdom  10, 55 Abdulaziz, Cabales and Balkandali v United Kingdom  161–163, 164 accommodation landlords, criminalisation  21–22, 103, 160 administrative immigration system administrative detention see detention consequences of administrative removal  70 fair trial rights and  122 punitive aspect of administrative removal  88, 92, 95–101 purpose  1 United Kingdom  70–71 use, generally  1, 11–12, 69–71, 103–104, 174 African Charter on Human and Peoples’ Rights  120 African Commission on Human and Peoples’ Rights  120, 121, 122 Agee v United Kingdom  10, 81–82 Agiza v Sweden  133 Alam and Khan v United Kingdom  107–108, 109 alcoholism as grounds for detention  5, 45, 52 Aleksanyan v Russia  172, 173 Aliverti, A  6, 92 AM (Zimbabwe) v Home Department  148 American Convention on Human Rights  66, 120 American Declaration on the Rights and Duties of Man  66 Amuur v France  46, 177 Andersen, Lisbeth Zornig  21 appeal adequate time for appeal  75, 78 asylum proceedings  110, 117–118 closed proceedings  169–170 curtailment of appeal rights  70, 103–104, 176 JED v United Kingdom  110–111 right to appear in person  74

Armstrong, N  114 Asaba, A  100–101 Ashworth, A and Zedner, L  36–37 asylum proceedings discretionary element  50, 116 dispute, whether  117–118 ECHR Article 6 civil limb cases  5–7, 117–119 asylum seekers administrative efficiency of claims system  103 Amuur v France  46, 177 appeals  110, 117–118 changing treatment of  14–15 collective expulsion  104 common asylum system  30 criminalisation  18 detention  26, 65 EURODAC database  29–30 facilitating asylum claims  21 fast-track system  103, 176 fingerprinting  61 individual interview, whether right to  104 Khlaifia v Italy  104, 177 media discourse surrounding  33, 174 ND and NT v Spain  104, 177 Panjeheighalehei v Denmark  118 reception centres  28 Refugee Convention  18, 104, 116–117 Vilvarajah and others v United Kingdom  134–135, 136 Australia crimmigration  15 Austria fines for illegal entry or stay  17 Gaygusuz v Austria  166–167 Kremzow v Austria  74 Mahdid and Haddar v Austria  46 Neumeister v Austria  48–49, 73 Ringeisen v Austria  106 violation of re-entry ban  17–18

198  Index banishment deportation compared  94–95 historical use  93–95 bank accounts UK Immigration Act 2014  22, 103, 176 Battjes, H  145–146 Belgium C v Belgium  163, 167 Conka v Belgium  55 detention system  26, 27, 63 Hamer v Belgium  89 irregular stay  26 JP v Belgium  137 Moustaquim v Belgium  167 Mubilanzila Mayeka and Kaniki Mitunga v Belgium  59 Paposhvili v Belgium  10, 124, 147–149, 179, 180 SJ v Belgium  144, 145, 146 Yoh-Ekale Mwanje v Belgium  59–60, 144 Bensaid v United Kingdom  139–140 Benthem v the Netherlands  105, 115, 117 Bettinson, V and Jones, A  146 Biao v Denmark  164–165, 179 biometric information Automated Fingerprint Identification System  30 DNA profiling  30 EURODAC database  29–30 facial identification  30 failure to provide fingerprints  19, 27 passports  160 Schengen Information System (SIS II)  30 Visa Information System (VIS)  30 Blake, N and Hussain, R  121 Boeles, P  9, 102 border enforcement see also immigration control border militarization  29 Eurosur  31 immigration officers’ powers  32–33 non-immigration organisations, by  22 political agenda  29 state control principle  9, 150, 153–157, 173 surveillance  29 Bosniak, L  151–152 Bosworth, M  42 Botswana Kenneth Good v Botswana  122 Boulois v Luxembourg  116 Bowling, B and Westenra, S  15

Bulgaria criminalisation of asylum seekers  18 detention system  26, 27 irregular stay  26 Bush, George W  169 Butler, RA  158 C v Belgium  163, 167 Caballero v United Kingdom  49–50 ‘certain imminent and serious test  126, 143, 147 Chahal v United Kingdom  10, 54–56, 126–128, 131, 132, 144, 149 children deportation  59 detention  45, 59–60, 68 fair trial rights  74 citizenship exclusionary nature  151–152 civil rights and obligations Alam and Khan v United Kingdom  107–108, 109 application of principle  105 asylum proceedings  117–119 Benthem v the Netherlands  105, 115, 117 Boulois v Luxembourg  116 dispute, meaning  105–107, 112, 115–118 disputes between state and private party  106 ECtHR interpretation and decisions  12, 102, 105–107, 110–112, 123 employment  117 European Charter  119–120 European Commission on Human Rights decisions  107–110 fair trial rights  119, 176 Feldbrugge v Netherlands  106–107, 115 immigration decisions and  12, 84, 102–103, 109–119 inconsistencies in case law  105, 112–119 JED v United Kingdom  110–111 Lombardo v Italy  115–116 Maaouia v France  9, 12, 111–115, 116, 121, 122, 123, 178 misinterpretation  119–122 NSV v United Kingdom  110 Refugee Convention  116–117 Ringeisen v Austria  106 Singh, Uppal and Others v United Kingdom  10, 109–110 Singh v United Kingdom  107–108, 109

Index  199 social assistance and security  117 X, Y, Z, V and W v United Kingdom  108–109 Cole, D  15, 169 Conka v Belgium  55 Cornelisse, G  4, 5 Costello, C  4, 5, 8–9 Council of Europe Commissioner for Human Rights  165 criminal activity extradition on grounds of  125–127, 132 proven or suspected, deportation on grounds of  11–12, 70, 125–128, 149 terrorism see terrorism criminal charge Agee v United Kingdom  10, 81–82 concept of, generally  79–81 ECHR rights  72 Engel criteria  80–81, 85, 87, 89, 92, 175 European Commission of Human Rights cases  81–83 fair trial see fair trial, right to immigration decisions, generally  85 language  72, 77 Maaouia v France  12, 83–85, 86, 87, 89–90, 102, 111–115, 178 Zamir v United Kingdom  10, 82–83 criminal conviction deportation following  23–24, 42, 71, 87–93, 101, 126–128, 147–149, 168 exclusion order following  85–87, 101, 147–149 immigration consequences  23–24, 88–91, 101, 152, 153 criminal justice system bypassing  1–2, 7, 12, 92–93, 101, 174 deportation and  87–101 fair trial, right to  69, 71–81, 101 Feindstrafrecht concept  37, 171 human rights and, generally  1 immigrants outside  8–10, 102 intertwining with immigration law  1–2, 11, 12, 16, 17, 69, 88, 153, 174 message conveyed by use  16 post-conviction detention  39, 44, 45, 48, 52–53, 62–65 pre-trial detention  39, 45, 48–52, 60–62, 152 procedural protections  36–37, 101, 177 procedural safeguards, circumventing  153, 174 test for criminal detention  48–53

two-tier system  13, 150, 152–160, 171–173, 176–177 undercriminalisation  2–3, 7, 37, 174 criminal rhetoric message conveyed by  16 criminalisation asylum seekers, of  18 civil exclusions  22, 103, 176 criminal justice practices, use  25–33, 36 decision-making procedures  103–105 detention system see detention deterrent element  42–43 discriminatory  168–173 employers, of  22 entry and stay  17–19 facilitating asylum claims  21 facilitating illegal entry or stay  17, 19–23 generally  1, 14–16, 36, 125–129, 153, 174–175, 177, 180 human rights and  1 ‘illegal immigrants’, use of term  14 immigrants outside criminalisation phenomenon  8–10, 102 interaction with migrants  1, 19–23 landlords, of  21–22, 103, 160 media discourse surrounding immigration  33–36, 174 money transfer companies  22 new immigration offences, creation  17 retributive element  42–43 search and rescue operations  21, 177 stigma attached to  36, 153, 174 unequal application  14 crimmigration generally  11, 14–18, 128–129 Croatia imprisonment as penalty  18 Cuscani v United Kingdom  79 Cyprus detention system  27 fines for illegal entry or stay  17 imprisonment as penalty  18 Czech Republic asylum seekers, criminalisation  18 fines for illegal entry or stay  17 Krcmar and Others v the Czech Republic  73 Roma community  170 D v United Kingdom  137, 138–139, 142, 143 death penalty ECHR Article 3 and  125, 132 Dembour, M-B  8–9, 10, 154, 167

200  Index Denmark Biao v Denmark  164–165, 179 deportation following criminal conviction  23 detention in  63 electronic tagging  31 facilitation of entry  21 imprisonment as penalty  18 Panjeheighalehei v Denmark  118 Savran v Denmark  124, 148–149, 179 deportation administrative removal  11–12, 69–71, 122, 174 automatic  71, 89–90, 103 banishment compared  94–95 bypassing criminal justice system  1–2, 7, 12, 92–93, 101 Chahal v United Kingdom  126–128, 131, 132, 144 children, of  59 collective expulsions  104 Conka v Belgium  55 consequences  70, 97–100 criminal activity, proven or suspected  11–12, 70, 125–128, 149 criminal conviction, following  23–24, 42, 71, 87–93, 101, 126–128, 168 criminological perspective  93–101 destruction of travel documents preventing  46 detention with view to  3–5, 26, 53, 54, 55–56, 60 deterrent element  85 ECHR prohibition on torture, inhuman and degrading treatment  124, 125–129, 131–132 extradition  125–127, 132 fair trial, right to  120, 122, 175 general violence, to situations of  124, 131, 134–137, 176 Gurguchiani v Spain  87–88, 91, 179 healthcare removals see healthcare removal method  96–97, 100 N v United Kingdom  10, 12, 124, 148 public perception of  100–101 public policy  69–70 punitive aspect  7, 88–101, 152 refusal to comply with order  83–85 removal without identification  104 respect for private and family life  86, 97 revocation of order  70 Saadi v Italy  127, 131, 132–133, 134, 142, 149

security concerns as grounds  23, 82, 114, 132 Soering v United Kingdom  125–126, 127, 132, 143, 149 status, based on  69–70 suspected terrorists  125, 126–128, 131 United Kingdom  23, 31–32, 70–71, 88–89, 92 use of force  95–96 use of GPS trackers  31–32 detention A and Others v United Kingdom  10, 55 administrative  25–29, 60, 63–64, 174 administrative efficiency  103 alternatives to  56–57 Amuur v France  46, 177 arbitrary  47, 51, 53–58, 60–68, 175 arrival, on  25–26 asylum system and  26 Caballero v United Kingdom  49–50 Chahal v United Kingdom  10, 54–56, 144, 149 children, of  45, 59–60, 68 cobbling  44 Conka v Belgium  55 criminal justice system  60, 174–175 criminalisation of immigrants  1, 41–43, 67–68 deportation, with view to  26, 53, 54, 55–56, 60 detention conditions  19 due diligence, proceedings pursued with  56 ECHR and  19, 39, 45–47, 175 enabling asylum processing  56–57, 58 encampments  40 goal  60–61, 175 good faith test  55, 60 human rights considerations  40–41 ICCPR  65–66 Ilascu and Others v Moldova and Russia  52–53 Ilias and Ahmed v Hungary  46–47, 178 immigrant pauperism and  43–44 immigration detention and pre-trial detention compared  11, 60–62, 67, 175 Immigration Removal Centres (IRCs)  41, 42–43 increasing use  3–5, 17, 19, 39–40 irregular stay as grounds  26 Jablonski v Poland  50 Mckay v United Kingdom  49

Index  201 Mubilanzila Mayeka and Kaniki Mitunga v Belgium  59 national security as grounds  55, 82 necessity test  48–50, 54, 55–58, 65, 66, 175 Neumeister v Austria  48–49 post-conviction  39, 44, 45, 48, 52–53, 62–65 pre-trial  39, 45, 48–52, 60–62, 152 prevention of infectious diseases  5, 45, 52 prevention of unauthorised entry  53, 56–58, 60 proportionality test  48, 50–52, 56–58, 65, 66, 175 public interest  50–51, 58 punitive aspect  7, 152, 175 retributive element  42–43 right to liberty and  3–5, 11, 45–47, 60 risk of absconding as grounds  11, 26, 39, 50–51, 58, 61–62, 67, 175 Saadi v United Kingdom  10, 53–58, 63, 66–67, 103, 149, 178 stateless immigrants  55 suffering and humiliation in course of  146 Suso Musa v Malta  60 system, generally  24, 25–29, 41–44 test for criminal detention  48–53 test for immigration detention  53–60 Tsirlis and Kouloumpas v Greece  53 UNHCR Guidelines  65 unnecessarily prolonged  53, 54, 55, 56, 57, 60 use of immigration detention, generally  39–44 Van Alphen v Netherlands  66 Yoh-Ekale Mwanje v Belgium  59–60 deterrence deportation as deterrent  85 detention as deterrent  42 discourse on immigration see also media discourse surrounding immigration generally  16 illegal immigrant, use of term  14 discrimination Abdulaziz, Cabales and Balkandali v United Kingdom  161–163, 164 Biao v Denmark  164–165, 179 C v Belgium  163, 167 discriminatory criminalisation  168–173 ECHR Article 14 prohibition  161–164 ECtHR case law  161–164, 173, 176–177 Gaygusuz v Austria  166–167 Konstantin Markin v Russia  164

Moustaquim v Belgium  167 MS v Germany  166–167 nationality, as to  157, 165–168 Patel v United Kingdom  168 racial  13, 150, 157, 159–160, 161–168, 173, 176–177, 180 two-tier system of ECtHR case law  13, 150, 157–168, 176–177 DNA profiling Schengen Information System (SIS II)  30 documents destruction preventing deportation  46 failure to provide or show  19, 71 removal without identification  104 driving licence applications UK Immigration Act 2014  22, 103, 176 drone technology  31 drug abuse as grounds for detention  43, 45 education, access to  22 Ellerman, A  100 employment of migrant without right to work  22 Engel and Others v Netherlands  80–81, 85, 87, 89, 92, 175 entry see irregular or illegal entry entry requirements differential treatment  14 equality of arms right to  73 Eritrea  15 Estonia detention in  63 detention system  27 fines for illegal entry or stay  17 EURODAC database  29–30 European Commission against Racism and Intolerance  165 European Commission on Human Rights cases determining criminal charges  81–83 creation  81 ECHR Article 6 civil limb cases  107–110 Ibbotson v United Kingdom  89 right to fair trial  73, 102, 175 European Convention on Human Rights (ECHR) Article 1 Protocol 1  166 Article 1 Protocol 7  111–114, 123 Article 3  5–6, 9–10, 12, 19, 55, 59, 111, 124–149, 172, 176, 179 Article 4 Protocol 4  104 Article 4 Protocol 7  86

202  Index Article 5  4, 11, 39–68, 175, 178, 179 Article 6  5–7, 9, 10, 12, 63, 64, 71–101, 102–123, 176, 178, 179 Article 7  64–65, 87–89 Article 8  31, 85, 97, 107–110, 111, 116, 164 Article 14  159, 161–164, 166–167 Article 16  154 Article 24  81 Article 25  81 Article 53  67, 112–113 collective expulsion of aliens, prohibition  104 deprivation of liberty  11, 45–47 detention of immigrants and  19, 39, 53–60, 67, 175 discrimination, prohibition  161–164 ECtHR decisions  124 political rights  154 post-conviction detention  45, 48, 52–53, 62–65 pre-trial detention  39, 48–52 proportionality principle  50–52, 56–58 Protocol 12  161 respect for private and family life  1, 86, 97, 98 restrictions on liberty  45, 47 right not to be tried or punished twice  86–88 right to fair trial  5–10, 11, 37, 52, 53, 63, 64, 71–88, 100, 102–123 right to liberty  1, 3–5, 39, 44, 45–47, 60 right to trial within reasonable time  49, 71–72, 74–75 security of person  45 torture, inhuman and degrading treatment, prohibition  124–149 European Convention on Nationality  165 European Court of Human Rights (ECtHR) arbitrariness test for pre-trial detention  51, 60–63 civil rights and obligations, concept of  102, 105–107 creation  81 criminalisation of immigration  69 ECHR Article 6 civil limb cases  9, 12, 102, 105–107, 110–112, 117–119, 123 ECHR prohibition on torture, inhuman and degrading treatment  1, 124 fourth instance doctrine  72 interpretation of immigrants’ human rights  2, 36, 37–38 lawfulness test for pre-trial detention  51

necessity test for pre-trial detention  48–50 post-conviction detention  52–53, 62–65 proportionality test for pre-trial detention  48, 50–52 two-tier system created by  13, 150, 151–173, 176–177 European Union Charter of Fundamental Rights Article  119–120 EURODAC database  29–30 Eurosur  31 Facilitation Directive  19–20 Fundamental Rights Agency  21 Returns Directive  6 Schengen area  30 Schengen Information System (SIS II)  30 Visa Information System (VIS)  30 Europol EURODAC database  30 Schengen Information System (SIS II)  30 Visa Information System (VIS)  30 Eurosur  31 exclusion, civil  103, 129, 176 exclusion order Gurguchiani v Spain  87–88, 179 Maaouia v France  12, 83–85, 86, 87, 89–90, 102, 111–115, 178 respect for private and family life  86, 97, 98 Uner v Netherlands  12, 85–87 facial identification Schengen Information System (SIS II)  30 fair trial, right to adversarial proceedings  73, 77, 78 African Commission on Human and Peoples’ Rights  120, 121, 122 American Convention on Human Rights  120 appearance in person  73, 74 Benthem v the Netherlands  115 burden of proof  76 children  74 civil limb  9, 12, 71, 102–123, 176 civil rights and obligations see civil rights and obligations counterterrorism measures  15, 169 criminal charge  71, 72, 79–81, 92–93 criminal limb  5–7, 11–12, 69–101, 175, 176 Cuscani v United Kingdom  79 deportation without hearing  120, 122 ECHR  5–10, 11, 37, 52, 53, 63, 64, 71–88, 100, 102–123

Index  203 effective participation  73, 74 Engel criteria  80–81, 85, 87, 89, 92, 175 equality of arms  73 European Charter  119–120 European Commission on Human Rights  73, 102, 175 examination of witnesses  72, 77, 79 fourth instance doctrine  72 generally  5–10, 11, 37, 52, 53, 63, 64, 69, 71–72, 150, 175 Hadjianastassiou v Greece  78 ICCPR  120 immigration decisions, applicability to  81–93, 101, 102–123, 176 independent and impartial tribunal or court  72, 74, 75 Inter-American Court of Human Rights  120, 121–122 International Covenant on Civil and Political Rights  120 interpreter, access to  72, 77, 79 judgment to be pronounced publicly  72 language of charge  72, 77 legal assistance  77, 78 Maaouia v France  9, 12, 111–115, 121, 122, 123, 178 overall requirements  72–74 prejudicial statements  76 preparation of defence, time and facilities for  72, 77–78 press, exclusion  72 presumption of innocence  72, 76 reasonable time, within  49, 71–72, 74–75 reasoned decision  73–74, 78 right to remain silent  76 self-incrimination  76 Uner v Netherlands  12, 86 Feindstrafrecht  37, 171 Fekete, L  44, 95–96 Feldbrugge v Netherlands  106–107 Fielding, Sir John  94 Findlay v United Kingdom  75 fingerprints Automated Fingerprint Identification System  30 EU law  61 EURODAC database  29–30 failure to provide  19, 27 immigration officers’ powers  32 Visa Information System (VIS)  30 Finland address, failure to provide  19

detention in  63 imprisonment as penalty  18 Tanko v Finland  138 travel documents, refusal to hand over  19 fourth instance doctrine  72 France Amuur v France  46, 177 BB v France  139 detention system  25–26, 63 electronic tagging  31 imprisonment as penalty  18 Maaouia v France  9, 12, 83–85, 86, 87, 89–90, 102, 111–115, 116, 121, 122, 123, 178 Makhfi v France  73 media discourse surrounding migrants  34 Selmouni v France  131 Franko, K  14 Frattini, F  31 Gafgen v Germany  129–130 Gaygusuz v Austria  166–167 Germany deportation following criminal conviction  23 detention in  63 Gafgen v Germany  129–130 imprisonment as penalty  18 MS v Germany  166–167 Giuliani, Rudi  160 Greece detention system  27, 28, 63 Hadjianastassiou v Greece  78 search and rescue operations  21 Tsirlis and Kouloumpas v Greece  53 violation of re-entry ban  18 Griffiths, Peter  158 Guild, E  25 Gurguchiani v Spain  87–88, 91, 179 Hadjianastassiou v Greece  78 Hamdi, Yasser  169 Hamer v Belgium  89 healthcare access  22, 103, 172, 173 healthcare removal BB v France  139 Bensaid v United Kingdom  139–140 D v United Kingdom  138–139, 142 ‘deathbed doctrine’  144 ECHR Article 3 and  124, 125, 131–132, 135, 137–149, 176 fair balance, search for  144–146

204  Index Henao v Netherlands  140–141 JP v Belgium  137 N v United Kingdom  124, 141–147, 148, 178 Paposhvili v Belgium  10, 124, 147–149, 179, 180 Savran v Denmark  124, 148–149, 179 SCC v Sweden  140 SJ v Belgium  144, 145, 146 Tanko v Finland  138 ‘very exceptional circumstances’ test  141–145, 147–148 Yoh-Ekale Mwanje v Belgium  144 Henao v Netherlands  140–141 Howard, Michael  171 human rights citizenship and  151–152 criminalisation of immigration and  1 ECtHR interpretation  36, 37–38 exceptions and derogations  150 right to liberty  1, 3–5, 11, 39, 44–47, 60 two-tier system  13, 150, 151–160 universality  150, 151 Westphalian state system  151–152 humanitarian assistance EU Facilitation Directive  20 facilitating asylum applications  21 facilitating illegal entry or stay  20 search and rescue operations  21, 177 Hungary detention system  27, 28 facilitating asylum applications  21 Ilias and Ahmed v Hungary  46–47, 178 imprisonment as penalty  18 Ibbotson v United Kingdom  89 Iceland EURODAC database  29 Ilascu and Others v Moldova and Russia  52–53 Ilias and Ahmed v Hungary  46–47, 178 illegal immigrant use of term  14 immigrants criminalisation see criminalisation media imagery  35–36 media language  34–35 reasons for  99 stereotyping  29 immigration control see also border enforcement administrative system  1, 69, 103–104, 174 criminal justice practices, use  1, 16, 25–33, 69

deportation see deportation detention see detention differential entry requirements  14 discriminatory reasoning and tactics  157 fast-track system  103, 176 intertwining with criminal justice system  1–2, 11, 12, 16, 17, 69, 88, 153, 174 punitive aspect  1, 7–8, 17, 85–101, 152, 179 reception centres  28 state control principle  9, 150, 153–157, 173 immigration officers generally  42 powers  32 immigration proceedings discretionary element  50, 116 European Charter  119–120 immigration status offences  17 independent and impartial tribunal or court right to fair trial  72, 74, 75 infectious disease detention to prevent spread  5, 45, 52 innocence, presumption of  72, 76 Inter-American Commission for Human Rights  66, 68 Inter-American Court of Human Rights  8, 9, 66, 120, 121–122 interaction with migrants criminalisation  1, 19–23 International Covenant on Civil and Political Rights (ICCPR)  65–66, 120 Ireland detention in  63 detention system  27 imprisonment as penalty  18 irregular or illegal entry see also border enforcement assisting  17 criminalisation  17–19, 125–129 detention to prevent  53, 56–58, 60 EURODAC database  29–30 Eurosur  31 facilitating  17, 19–23 meaning  17 punishment  17 irregular or illegal stay assisting  17 criminalisation  17–19, 125–129 detention following  26 facilitating  17, 19–23 meaning  17 punishment  17

Index  205 Italy deportation following criminal conviction  23 deportation orders  26 detention system  26, 28 documents, failure to provide  19 fines for illegal entry or stay  17 Khlaifia v Italy  104, 177 Lombardo v Italy  115–116 media discourse surrounding migrants  33, 34 money transfer companies  22 Saadi v Italy  127, 131, 132–133, 134, 142, 149 search and rescue operations  21 security package 2009  22 Jablonski v Poland  50 Jakobs, G  37, 171 JED v United Kingdom  110–111 JP v Belgium  137 Kanstroom, D  93 Kenneth Good v Botswana  122 Kesby, A  145 Khan, B  148 Khlaifia v Italy  104, 177 Konstantin Markin v Russia  164 Krasman, S  171 Krcmar and Others v the Czech Republic  73 Kremzow v Austria  74 landlords, criminalisation  21–22, 103, 160 language, fair trial rights and  72, 77 Latvia imprisonment as penalty  18 Leerkes, A  44 Leerkes, A and Broeders, D  43, 44 Legomsky, S  3 Liechtenstein EURODAC database  29 Lindh, John Walker  169 Lithuania detention system  26, 27, 63 irregular stay  26 Lombardo v Italy  115–116 Luxembourg asylum seekers  26 Boulois v Luxembourg  116 detention system  27 Maaouia v France  9, 12, 83–85, 86, 87, 89–90, 102, 111–115, 116, 121, 122, 123, 178 Mckay v United Kingdom  49

Mahdid and Haddar v Austria  46 Majcher, I  6 Makhfi v France  73 Malta automatic mandatory detention  19 detention system  27, 63 immigration offences, treatment  18 search and rescue operations  21 Suso Musa v Malta  60 Maneri, M  33 Mantaouvalou, V  146 May, Theresa  23 media discourse surrounding immigration generally  16, 33, 174 imagery  35–36 immigration narrative  14, 33–34 language use  34–35 mental disorder as grounds for detention  5, 45, 52 Miller, T  36 Mitsilegas, V  170 Moldavian Republic of Transdniestria Ilascu and Others v Moldova and Russia  52–53 Moustaquim v Belgium  167 MS v Germany  166–167 Mubenga, J  97 Mubilanzila Mayeka and Kaniki Mitunga v Belgium  59 N v United Kingdom  10, 12, 124, 141–147, 148, 178 NA v United Kingdom  136–137, 143 Nafziger, J  157 national law enforcement agencies EURODAC database  30 Schengen Information System (SIS II)  30 Visa Information System (VIS)  30 nationality, immigration law and  157, 165–168 ND and NT v Spain  104, 177 Netherlands Benthem v the Netherlands  105, 115, 117 deportation following criminal conviction  23 detention system  25, 63 Engel and Others v Netherlands  80–81, 85, 89, 92, 175 Feldbrugge v Netherlands  106–107, 115 Henao v Netherlands  140–141

206  Index immigrant pauperism  43–44 imprisonment as penalty  18 media discourse surrounding migrants  34 Salah Sheekh v Netherlands  136, 137 Uner v Netherlands  12, 85–87 Van Alphen v Netherlands  66 Neumeister v Austria  48–49, 73 new penology crimmigration  15 Norway detention system  26, 27 EURODAC database  29 imprisonment as penalty  18 irregular stay  26 prisons for non-citizen offenders  24 NSV v United Kingdom  110 Organised Crime, UN Convention against Transnational  20 Organization of American States  66 Othman (Abu Qatada) v United Kingdom  133 Packer, H  152 Padilla, Jose  169 Padilla v Kentucky  90–91 Panjeheighalehei v Denmark  118 paperwork, offences relating to  19 Paposhvili v Belgium  10, 124, 147–149, 179, 180 Patel v United Kingdom  168 personhood, concept of  151–152 Phillips v United Kingdom  89 photography refusal to be photographed  35–36 Poland detention system  27 Jablonski v Poland  50 Law and Justice Party  170 political agenda border militarization  29 surveillance  29 Portugal detention in  63 electronic tagging  31 irregular entry or stay  18 Powell, Enoch  158–159 prejudicial statements fair trial rights  76 Pretty v United Kingdom  139

preventive measures detention  53, 56–58, 60 immigration measures, generally  85 infectious disease, detention to prevent spread  5, 45, 52 private and family life, respect for Alam and Khan v United Kingdom  107–108, 109 generally  1, 86, 97, 98 NSV v United Kingdom  110 Singh, Uppal and Others v United Kingdom  10, 109–110 Singh v United Kingdom  107–108, 109 X, Y, Z, V and W v United Kingdom  108–109 proof burden of, right to fair trial  76 standard of  1–2, 127–128, 146 proportionality immigration detention  48, 50–52, 56–58, 66, 175 necessity  50, 51, 53, 54, 55–58, 65, 175 suitability  50, 51, 57 test for pre-trial detention  50–52 public interest immigration detention  50–51, 58 public policy deportation based on  69–70 public safety expulsion orders to protect  86 punishment administrative removal as  92, 95–101 criminal justice system  1 deportation, punitive aspect  7, 88–101, 152 detention, punitive aspect  7, 152, 175 immigration measures as, generally  1, 7–8, 17, 85–101, 152, 179 preventative measures  89 right not to be punished twice  86–88 two-tier system  172 re-entry ban generally  17 violation  17–18 reception centres asylum seekers  28 Refugee Convention Article 31  18 asylum claims  18, 104, 116–117 civil rights under  116–117

Index  207 definition of refugee  118, 135 rights qualified on grounds of applicant’s behaviour  127 Ringeisen v Austria  106 Romania immigration offences, treatment  18 Russia Aleksanyan v Russia  172, 173 Konstantin Markin v Russia  164 Saadi v Italy  127, 131, 132–133, 134, 142, 149 Saadi v United Kingdom  10, 53–58, 66–67, 103, 178 Salah Sheekh v Netherlands  136, 137 sanctions administrative  17 criminal  17 detention  17 Savran v Denmark  124, 148–149, 179 Sawyer, C  145 SCC v Sweden  140 Schengen area Schengen Information System (SIS II)  30 Visa Information System (VIS)  30 Schotel, B  154–155 Schuk, P  61–62 search and rescue criminalisation  21, 177 security concerns crimmigration and  15 deportation on grounds of  23, 82, 114, 125, 126–128, 132 detention on grounds of  55 ECHR Article 3 and  125, 126–128, 132 Eurosur  31 extradition cases  125, 132 use of biometric technology  31 self-incrimination fair trial rights  76 Selmouni v France  131 Shala v Switzerland  97 Shaw Review  64 silent, right to remain  76 Singh, Uppal and Others v United Kingdom  10, 109–110 Singh v United Kingdom  107–108, 109 SJ v Belgium  144, 145, 146 Sladek, Miroslav  170 Slovakia detention system  63 irregular entry or stay  18

Slovenia detention system  28, 63 smuggling EU Facilitation Directive  19–20 facilitation of entry  21 UN Convention against Transnational Organised Crime  20 UN Protocol against  19, 20 Soering v United Kingdom  125–126, 127, 132, 143, 144, 149 sovereignty state control principle  9, 150, 153–157, 173 Spain asylum seekers  26 detention system  27, 63 Gurguchiani v Spain  87–88, 91, 179 ND and NT v Spain  104, 177 ‘special distinguishing features’ test  135–136 state control principle  9, 150, 153–157, 173 stateless persons, detention  55 stay see irregular or illegal stay Stumpf, J  15–16 Sufi and Elmi v United Kingdom  137 surveillance biometric  160 border enforcement  29 detention encampments  40 electronic tagging  31–32 passports  160 political agenda  29 Suso Musa v Malta  60 Sweden Agiza v Sweden  133 imprisonment as penalty  18 SCC v Sweden  140 Switzerland deportation following criminal conviction  23 EURODAC database  29 lifelong detention  170 Shala v Switzerland  97 T v United Kingdom  74 Tanko v Finland  138 terrorism anti-terror legislation  15 Chahal v United Kingdom  126–128 deportation of suspected terrorists  125, 126–128, 131 fair trial rights  169 media discourse surrounding  33

208  Index post-9/11 counterterrorism measures  15, 169 Saadi v Italy  127, 131, 132–133, 149 use of biometric technology  31 torture, inhuman and degrading treatment, ECHR prohibition absolute right, as  124, 127, 129–130, 144–146, 149 Agiza v Sweden  133 BB v France  139 Bensaid v United Kingdom  139–140 ‘certain imminent and serious test  126, 143, 147 Chahal v United Kingdom  126–128, 131, 132 D v United Kingdom  137, 138–139, 142, 143 death penalty  125, 132 deportations limited by  124, 125–129, 131–132 diplomatic assurances  124, 125, 131, 132–134, 176 extradition cases  125–127, 132 factors taken into account  130 fair balance, search for  144–146 Gafgen v Germany  129–130 general violence, situations of  124, 131, 134–137, 176 generally  1, 6, 9–10, 12, 124–149, 150 healthcare access  172 healthcare removals  124, 125, 131–132, 135, 137–149, 176 Henao v Netherlands  140–141 JP v Belgium  137 legitimate detention  146 meaning of degrading treatment  130–131 meaning of inhuman treatment  130 meaning of torture  130 mental suffering  130 mere possibility of ill-treatment  135 minimum level of severity  131 N v United Kingdom  12, 124, 141–147, 148, 178 NA v United Kingdom  136–137, 143 national security, removals on grounds of  125, 126–128, 132 Othman (Abu Qatada) v United Kingdom  133 Paposhvili v Belgium  10, 124, 147–149, 179, 180 Pretty v United Kingdom  139 Saadi v Italy  127, 131, 132–133, 134, 142, 149

Salah Sheekh v Netherlands  136, 137 Savran v Denmark  124, 148–149, 179 SCC v Sweden  140 Selmouni v France  131 SJ v Belgium  144, 145, 146 Soering v United Kingdom  125–126, 127, 132, 143, 144, 149 ‘special distinguishing features’ test  135–136 Sufi and Elmi v United Kingdom  137 Tanko v Finland  138 ‘very exceptional circumstances’ test  143 Vilvarajah and others v United Kingdom  134–135, 136 Yoh-Ekale Mwanje v Belgium  144 transportation, historical use  94–95 Trump, Donald  160 Tsirlis and Kouloumpas v Greece  53 two-tier criminal justice system  13, 150, 151–160, 171–172, 176–177 two-tier system of ECtHR case law discrimination and  150, 157–168, 172, 173, 176–177 erosion of rights  168–173 generally  13, 150, 151–160, 176–177 unauthorised entry see irregular or illegal entry Uner v Netherlands  12, 85–87 United Kingdom A and Others v United Kingdom  10, 55 Abdulaziz, Cabales and Balkandali v United Kingdom  161–163, 164 administrative removal  69–71 Agee v United Kingdom  10, 81–82 Alam and Khan v United Kingdom  107–108, 109 Aliens Restriction Act 1914  156 AM (Zimbabwe) v Home Department  148 ancillary orders  88–89 asylum claims  103 Bensaid v United Kingdom  139–140 Borders Act 2007  90 Caballero v United Kingdom  49–50 Chahal v United Kingdom  10, 54–56, 126–128, 131, 132, 144, 149 citizenship  167–168 civil exclusions  22, 103, 176 closed proceedings  169–170 cobbling  44 Commission for Racial Equality  159 Commonwealth Immigrants Acts  108, 158–159

Index  209 confiscation orders  89 Cuscani v United Kingdom  79 D v United Kingdom  137, 138–139, 142, 143 deportation system  23, 31–32, 70–71, 88–90, 92, 95–97, 100 detention system  26, 40, 41–42, 44, 63 documents, failure to provide  19, 71 electronic tagging  31–32 employer liability  22 EURODAC database  29 fast-track system  103, 176 Findlay v United Kingdom  75 fines for illegal entry or stay  17 fingerprints, failure to provide  19 GPS trackers  31–32 Habeas Corpus Act  155 ‘hostile environment’  23 Ibbotson v United Kingdom  89 Immigration Act 2014  21, 22, 23, 103 Immigration Act 2016  22, 103 immigration controls, generally  155–156 immigration from former colonies  157–163 immigration officers’ powers  32 immigration paperwork  19 Immigration Removal Centres (IRCs)  41, 42–43 imprisonment as penalty  18 interview, failure to attend  19 JED v United Kingdom  110–111 landlord liability  21–22, 160 Lord Grenville’s Alien Act 1793  155 Mckay v United Kingdom  49 N v United Kingdom  10, 12, 124, 141–147, 148, 178 NA v United Kingdom  136–137, 143 naturalisation  168 new immigration offences, creation  17 New Plan For Immigration  128 NSV v United Kingdom  110 obtaining leave by deception  71 Othman (Abu Qatada) v United Kingdom  133 Patel v United Kingdom  168 Phillips v United Kingdom  89 Pretty v United Kingdom  139 prisons for non-citizen offenders  23–24, 103 Registration of Aliens Acts  155 Saadi v United Kingdom  10, 53–58, 63, 66–67, 103, 149, 178

Singh, Uppal and Others v United Kingdom  10, 109–110 Singh v United Kingdom  107–108, 109 Soering v United Kingdom  125–126, 127, 132, 143, 144, 149 Special Immigration Appeals Commission  170 Sufi and Elmi v United Kingdom  137 T v United Kingdom  74 V v United Kingdom  74 Welch v United Kingdom  89 X, Y, Z, V and W v United Kingdom  108–109 Zamir v United Kingdom  10, 82–83 United Nations Convention against Transnational Organised Crime  20 Human Rights Committee  65–66, 67–68 ICCPR  65–66 Protocol against Smuggling of Migrants  19, 20 UNHCR  65, 67–68 United States criminalisation of immigration  36 crimmigration  15–16 ‘Muslim Ban’  160 Padilla v Kentucky  90–91 post-9/11 counterterrorism measures  15, 169 Universal Declaration of Human Rights  151 V v United Kingdom  74 vagrancy as grounds for detention  5, 45 Van Alphen v Netherlands  66 Van Dijk, P  114 ‘very exceptional circumstances’ test  141–145, 147–148 Vilvarajah and others v United Kingdom  134–135, 136 Visa Information System (VIS)  30 Weber, L  42, 43 Welch v United Kingdom  89 welfare systems, access to  43 X, Y, Z, V and W v United Kingdom  108–109 Yoh-Ekale Mwanje v Belgium  59–60, 144 York, S  6 Zamir v United Kingdom  10, 82–83

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