The Governments Immigration Law and Policy - Case Study Example

Immigration has become an increasingly debated topic within the UK and it is submitted at the outset that the media obfuscation of reality and actingas scaremonger has further compounded rational debate in this area. This is further perpetuated by the media focus on national security and the terror threat post 9/11, which is increasingly shaping the Government’s immigration law and policy de facto. This in turn has fuelled the debate regarding detention of suspects without charge or trial on grounds of national security, which is the focus of this analysis. However, the blurring of the distinction between the need to legislate for immigration on the one hand and protection from terrorism on the other is further perpetuated by the patchwork of piecemeal immigration legislation in the UK. On the other side of the legal spectrum, the implementation of the Human Rights Act in 1998 (HRA) enshrines the fundamental rights and freedoms of the European Convention on Human Rights into UK law. From an immigration policy perspective, the most important rights relied on in immigration cases have been the Article 5 right, which prohibits detention without trial and the right not to be subjected to degrading treatment under Article 3. Additionally, Article 14 guarantees rights under the ECHR. However, on the other side of the spectrum it has been submitted that the heightened threat to national security necessarily renders it permissible for Governments to detain suspects for an indefinite period of time without charge or trial. Conversely, it has been argued that whilst sufficient measures for national security protection are vital, absolute executive autonomy over detention of suspects without trial or charge clearly raises constitutional issues and human rights issues. Indeed on the one hand, the fundamental freedoms under Article 5 of the ECHR in respect of detention are essential to the function of the UK as a democracy. On the other hand, the reliance on the ECHR rights through the HRA 1998 arguably undermines immigration rules and legislation, which enables the UK immigration system to be exploited vis-à-vis asylum seekers in international conventions1. However, it is precisely this paradox within the law that enables the changing Governmental policy from circumventing both entrenched immigration and asylum rules and human rights protection on grounds of “national security”2. This is particularly evidenced by the implementation of the controversial Anti-Terrorism, Crime and Security Act 2001 (ACTSA), which permits derogation from the ECHR. Moreover ACTSA is arguably symbolic of the inherent weakness of human rights protection in immigration matters and the overriding power of the Executive. Indeed, ACTSA gives the UK the option to provisionally opt out of the ECHR in cases of emergencies, and simultaneously endorse powers that infringe on rights that the ECHR ensures. However, this potential for abuse of the executive powers is further compounded by the inherent certainty of ambiguous wording in ACTSA and therefore, the “emergency” can constitute effectively any event so deemed3. As such, the Government can effectively suspend the ECHR at will. ACTSA covers a wide range of categories however it has been asserted that the danger is “however, that the threat of arrest, investigation and prosecution as well as a possible seven year sentence, will deter those who currently feel free to comment upon religious affairs from even taking the risk4”. According to Matthew Tempest, argued that “the bill will introduce some of the most stringent infringements on civil liberties in Britain since the second world war”5. This form of legislation is coined in terms of being a provisional measure to combat terrorism, however arguably operates as a prolonged infringement on freedoms6. As such, it curtails the impact of the HRA through the back door. For example, under the ACTSA, the Government can opt out of the Article 5 of the ECHR, which bans detention without trial. Article 5 provides that everyone has a right to liberty and security of person however the home secretary is given the power to certify that a foreign national is a suspected terrorist and a threat to national security based on his suspicions. This is a more subordinate constraint than the standard of proof required in obtaining convictions in a criminal court and the only right of appeal is to judges of the Special Immigration Appeals Commission, who very rarely favour detainees in such applications7. This is further compounded by the immigration and asylum section of the ATCSA, which enables non-UK citizens to be deported whose existence in the UK is “not conducive to public good”. As such, this effectively enables circumvention of the other rules governing immigration and asylum and thereby rights guaranteed by the ECHR. Under the ATCSA the ambiguous wording of “not being conducive to the public good” means that the government can invoke the derogation rights and deport individuals under the terror provisions at will. Moreover, the provisions regarding declarations of incompatibility under the HRA will not act as a sufficient curb as the ACTSA legally sanctions derogation, which is further permitted under the catch all exemption in the ECHR itself. Alternatively, if an applicant cannot be deported, the measures under ACTSA may be utilised for extended detention and potentially indefinitely. This is further enabled by the purposively ambiguous wording of ATCSA. For example, section 23 of Chapter 24 enables derogation, which should only be used in “time of war other public emergency threatening the life of the nation…. To the extent strictly required by the exigencies of the situation”. Not only does this effectively enable derogation from ECHR protection in any event behind the guise of legality, it clearly undermines the constitutional doctrine of the separation of powers. Moreover, this further suggests that the executive’s power to implement immigration policy by any means necessary clearly takes precedence over any acceptance of ECHR freedoms as an automatic right within the UK. However, the theoretical basis for justification for the separation of powers centres on its fundamental importance to the operation of democracy. The principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.8” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely9”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power, further symbolised in the UK by the role of Parliament as a check on the executive. With regard to the UK position, the doctrine of the separation of powers has traditionally been limited and criticised for being somewhat unclear in comparison to other democracies10. This obfuscation of the theoretical separation of powers has ramifications for the procedure of passing Acts of Parliament as evidenced by the piecemeal and often knee jerk reactionary approach to implementation of immigration policy. Parliament is essentially the legislative section of the British political system and the Jennings Westminster model proposed in 1966 was constructed around the notion of Parliamentary supremacy11. As such, through the executive Prime Minister and the Cabinet, Parliament sanctions executive sovereignty in a party governmental system. Theoretically Parliament is a policy influencing body, relying on the executive to formulate policy and reacts to it and therefore the party machine reinforces power of the executive to initiate policy. Parliament is not therefore involved in the policy making process and has minor powers of initiation. Whilst government controls Parliament the passing of an Act of Parliament ultimately depends on control, possession of majority, loyal voting from supporters, the curtailing of debate and the control of drafting. This undermines the symbolic purpose of Parliament as a check on the executive, which is further highlighted by David Davis’ dramatic resignation in protest at Labour’s 42 day detention plans. Furthermore, the concept of law reform is often intertwined with policy in practice and is reactive to social, political and economic factors. Indeed Eddey & Darbyshire comment that “New Governments want to make their mark12” and a government with a significant majority has a greater chance of pushing their bill through Parliament, which undermines the essential objective of transparent law reform. This in itself questions the efficacy of law reform shaped by political agendas, which was symbolised by MP David Davis’ dramatic resignation from his seat and attempt to fight a by-election over the issue of Labour’s proposed extension of detention without trial. It is widely thought that Mr Davis’ resignation was intended to highlight how weak the Tory’s commitment was to opposing Labour’s proposals. David Davis’ departure arguably symbolises the inherent flawed presumption of a genuine separation of powers in the UK, particularly in the face of politically motivated immigration reform through Parliament. This is further highlighted by the knee jerk reaction of Government proposals to tackle terrorism. For example, ATCSA was introduced just two months after the attack on the world trade centre. ATCSA also extends police powers regarding surveillance and identification and the perceived threat from terrorism is expressed directly in the ATCSA, as the Home Secretary may legally detain, and then deport, any foreign nationals suspected of being involved in international terrorist activities without trial. ATCSA has been criticised on similar grounds to Davis’ vehement opposition to the 42 day detention proposals. However, the speed with which the legislation was passed through Parliament suggests that Parliament is effectively a tool to rubber stamp politically motivated reform as opposed to ensuring transparency in the executive. This further highlights the consistent failure to strike a satisfactory balance between effective immigration policy and genuine human rights protection within the UK legal framework. Indeed, it is estimated that more than 500 people have been detained under the ATCSA, with very few actual convictions, highlighting the problem of Parliament sanctioned policy changes under duress13. The above analysis demonstrates that whilst the theoretical implications of the HRA as the most important piece of legislation in the UK cannot be underestimated, uncertainty still remains as to the extent of the impact on immigration policy in practice and the potential for abuses of executive power undermine the veracity of the dogmatic assertion that “it should be open to the Government to detain suspects for an indefinite period of time without charging them with any offence”. Moreover, the fact that the judiciary can merely determine whether rights have been breached arguably undermines the importance of the HRA as constitutional revolution for individual rights. Additionally, the implications of ACTSA arguably beg the question as to whether human rights protection under the HRA is in fact academic due to the reality of executive control in immigration policy implementation. The powers under ACTSA enable derogation from the ECHR and the ambiguous wording of its provisions lend themselves open to being exploited to circumvent limitations in pre-existing legislation. Whilst from a constitutional perspective, this clearly creates a tension within the separation of powers doctrine, the inherent paradox of ACTSA highlights the problem of legislating for complex socio-political issues within a cohesive framework. On the one hand, the subjective nature of immigration decisions and appeals intrinsically require a case by case approach, which undermines legal certainty. On the other hand, whilst compliance with ECHR rights is clearly desirable, there have to be controls in place to prevent continuous obstruction with national immigration policy addressing national needs. It would clearly create a legal paradox for the HRA to undermine the very purpose for which it was implemented, which is in fact to preserve essential civil liberties as a the cornerstone of any liberal democracy. However, the current position is extremely unsatisfactory as overall there is no certainty and human rights protection is extremely precarious in immigration cases, further compounded by the extreme powers under ACTSA. This is further undermined by the judicial reluctance to interfere with policy decisions and make declarations of incompatibility under the HRA. However, even though ACTSA is prima facie incompatible with the ECHR, the ECHR itself permits derogation, which begs the question as to whether there can ever be a true and complete protection of human rights in any territory. Nevertheless, the current position is clearly unsatisfactory. As such, it is recommended that there be an official debate specifically addressing the parameters of human rights protection in immigration and asylum cases with a view to striking an appropriate balance, which in turn will go further towards preserving legal certainty. As such, the Al-Jedda decision demonstrates that whilst the theoretical implications of the HRA as the most important piece of legislation in the UK cannot be underestimated, uncertainty still remains as to the extent of the EC law as a fetter on Parliamentary sovereignty. Moreover, the fact that the judiciary can merely determine whether rights have been breached arguably undermines the importance of the HRA as constitutional revolution for individual rights BIBLIOGRAPHY Lord Action, Letter to Bishop Mandell Creighton ,1887. H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Penny Darbyshire, & K.J. Eddey., Eddey and Darbyshire on the English Legal System. (7th Edition Sweet & Maxwell 2002). G. Clayton (2008) Immigration and Asylum law. 3rd Edition Oxford University Press. Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). Jowell, J & Oliver, D., (2004). The Changing Constitution. 5th Revised Edition. Oxford University Press. A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. Franz C Mayer (2005) Competences- Reloaded? The vertical division of Powers in the EU after the New European Constitution, 3 the Journal of International Constitutional Law 493. Montesquieu., “The Spirit of Laws” (1748) Margaret Phelan (2007). Immigration Law Handbook. 5th Edition Oxford University Publishing. H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Weatherhill, (2005). Cases and Materials on EU Law. 7th Edition Oxford University Press. Hansard HL, 3 November 1997, col. 1230 Legislation Immigration Act 1971 Asylum and Immigration Appeals Act 1993 Asylum and Immigration Act 1996 Special immigration Appeals Commission Act 1997 Human Rights Act 1998 Immigration and Asylum Act 1999 Youth Justice and Criminal Evidence Act 1999 Websites The current version of the Immigration Rules is available at www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules. www.opsi.gov.uk www.publications.parliament.uk Read More