‘Beat Your Plowshares into Swords and Your Pruninghooks into Spears’: A Contextual Critique of Expulsion Decisions and Appeal Rights in the United Kingdom
International Journal of Law and Society
Volume 3, Issue 2, June 2020, Pages: 39-46
Received: Feb. 13, 2020;
Accepted: Mar. 11, 2020;
Published: May 12, 2020
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Cosmas Ukachukwu Ikegwuruka, Almond Legals-Immigration, Asylum and Human Rights Lawyers & Researchers, London, UK
Linus Chukwuemeka Okere, Centre for Global Media and Communications, School of Oriental and African Studies (University of London), London, UK
The putative question is whether the United Kingdom complies with its treaty obligations under International Human Rights Law (IHRL) in the expulsion of migrants? The debate is that expulsion laws as they stand may have been contrived to enhance deportability or removability. It is further argued that the ever increasing and shifting pattern of deportation laws (some of which are retroactive) appears to violate the basic principles of human rights norms. This is heightened by the fact that these laws are either discretionary or couched in rigid terms leaving less chance for compassionate considerations even in the light of unclear judicial interpretation given to some of these expulsion laws. Although, States are afforded some discretion as to the manner in which they conform to their obligations under IHRL, that discretion, however, must not result in the practical denial of the minimum procedural safeguards needed to protect the migrant against arbitrary expulsion. By certifying decisions regarding expulsion, the paper finds that the State ab initio creates the amphitheater for expulsion of migrants. The argument is that the dichotomy between an ‘immigration decision’ and ‘non-immigration decision’ is a false one as it is probably anchored with the apparent intention of achieving expulsion of migrants from the UK in an ostensibly hostile environment. It is curious that the irregular migrant who makes an application (usually by payment of a fee) to the Home Office to regularize his stay which was eventually refused will not be accorded a right of appeal simply because, the State sees such applications as not befitting of a right of appeal. It is therefore difficult to justify the rationale to deny a right of appeal to a migrant or to dichotomize between an immigration decision and a non-immigration decision in the light of the immigration rules. The doctrinal methodology is applied in this paper.
Cosmas Ukachukwu Ikegwuruka,
Linus Chukwuemeka Okere,
‘Beat Your Plowshares into Swords and Your Pruninghooks into Spears’: A Contextual Critique of Expulsion Decisions and Appeal Rights in the United Kingdom, International Journal of Law and Society. Special Issue: Immigration Control, Citizenship, the Interplay of Sovereignty and the Vicissitudes of the Hostile Environment.
Vol. 3, No. 2,
2020, pp. 39-46.
Alice Bloch and Liza Schuster, ‘At the extremes of exclusion: Deportation, detention and dispersal’ (2005) 28.
C Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67 Modern Law Review 588, 589; C Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’ (1993) 4 European Journal of International Law 447.
Ian Bryan and Peter 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 Law 457, 459; Alison Harvey, ‘Expulsion and Exclusion’ (2007) 21 (3) Journal of Immigration, Asylum and Nationality Law, 208.
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) 1950, CETS no 005, Article 1 of the ECHR provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’; It is important to mention that member states of the European Union are also members of the Council of Europe where each is a signatory. See Council of Europe Parliamentary Assembly Resolution 1031 (1994) accessed 11 July 2018.
Ian Macdonald and Ronan Toal, Macdonald’s Immigration Law & Practice (1st Supp, 7th edn, LexisNexis 2009) 1.
Emmanuela Paoletti, ‘Deportation, non-deportability and ideas of membership’ (2010) RSC Working Paper Series 65/2010, 15.
Ellicott's Commentary for English Readers< https://biblehub.com/commentaries/joel/3-10.htm > accessed 18 January 2020.
See section 120 of the Nationality, Immigration and Asylum Act 2002 under the caption ‘Requirement to state additional grounds for application’.
Nationality, Immigration and Asylum Act 2002, s 82 (2).
Kerry Ann Veronica & Daley Murdock v SSHD  EWCA Civ 161.
Home Office UK Border Agency, ‘UK Border Agency’s transition to Home Office’ http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2013/may/11-transition accessed 04 December 2019.
UK Border Agency, ‘Enforcement Instruction and Guidance’ (Chapter 20-Appeals) http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/oemsectiond/Appeals?view=Binary accessed 05 December 2013.
SA Pakistan  UKAIT 00083–.
The new rule is now located at paragraph 276ADE (1) (iii) of the Immigration Rules, See Statement of Changes in Immigration Rules HC 194. Note the old rule at paragraph 276B of the Immigration Rule HC 395. The new rules which came into effect on or after on or after 9 July 2012 now require 20 years long (unlawful) residence to obtain indefinite leave to remain in addition to certain conditions such as good conduct and no criminal convictions.
ZH (Bangladesh) v SSHD  EWCA Civ 8, the Court stated ‘The 14-year rule set out in Rule 276B (i) (b) is thus specifically directed to people who have managed to stay here for 14 years or more without lawful authority. It is in effect an amnesty clause’.
Nationality, Immigration and Asylum Act 2002, s 92 (4).
Sarah Craig and Maria Fletcher, ‘The Supervision of Immigration and Asylum Appeals in the UK-Taking Stock’ (2012) 0 International Journal of Refugee Law 1, 12.
The Immigration Act 2014, s 15 & s 15 (5) (6) (b) ‘New matter’ means a matter that the Secretary of State has not considered, note that the Act under ‘Right of Appeal to the First Tier Tribunal’ amends the grounds of appeal as stated in Section 84 of the Nationality, Immigration and Asylum Act 2002. Cf. this provision with section 94 of the Nationality, Immigration and Asylum Act 2002 where certification is not permissible during the appeal process.
Ruth Grove-White, ‘The Conservative amendment throwing a spanner in the works for the Immigration Bill’ Migrant Right Network (02 December 2019) http://www.migrantsrights.org.uk/blog/2013/12/conservative-amendment-throwing-spanner-works-immigration-bill?utm_source=Migrants+Rights+News&utm_campaign=ea27389ddf-MRN_News_2-12-2013&utm_medium=email&utm_term=0_1084a7080c-ea27389ddf-217215973 accessed 06 December 2019.
Colin Yeo, ‘Appeals and the Immigration Bill’ http://www.freemovement.org.uk/2013/10/31/immigration-appeals-judicial-review-immigration-bill/ accessed 10 December 2018. The Immigration and Asylum Appeals Act 1993 introduced in-country asylum appeals, note that Yeo was commenting when the Act was still a Bill.
Matt Chorley, James Slack and James Chapman, ‘Immigration system is like a never-ending game of snakes and ladders: Theresa May vows to kick out illegal migrants BEFORE they get chance to appeal’ MailOnline (London 30 September 2013) accessed 10 October 2017.
Mirza & Ors v SSHD  EWCA Civ 159.
EO (Turkey)  UKAIT 00062.
Cf. TE (Eritrea) v SSHD  EWCA Civ 174 which held that it may in some cases be unfair and hence unlawful for the Home Secretary not to do so, but not that she is obliged in all cases to do so.
See Home Office, ‘Non-Suspensive Appeals (NSA) Certification under Section 94 of the NIA Act 2002’ accessed 18 January 2020.
R v SSHD ex p Thangarasa & Yogathas  UKHL 36.
ZL and VL v SSHD  EWCA Civ 25.
AA (Iraq) v SSHD  EWCA Civ 23 [92-94].
ZT (Kosovo) v SSHD  UKHL 6.
Bail for Immigration Detainees (BID), ‘Out of sight, out of mind: experiences of immigration detention in the UK (July 2009) 34-44.
Neumeister v Austria (1968) 1 EHRR 91, para 24.
Fischer v Austria App No 33382/96 (ECtHR, 06 January 2000) paras 33, 44.
Dombo Beheer BV v Netherlands (1993) 18 EHRR 213.
Council of Civil Service Unions v Minister for the Civil Service  AC 374 .
Congreve v Home Office  QB 629 ; Porter v Magill  UKHL 673 on improper purpose that includes malice, threats or personal dishonesty on part of the officials making the decision- the Court has held that the exercise of a power for improper purpose is invalid.
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) 1950, CETS no 005, Article 13 ECHR 1950 states ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’.
De Souza Ribeiro v. France App no 22689/07 (ECtHR, 13 December 2012) Cf. M. and Others v. Bulgaria App no 41416/08 (ECtHR, 26 July 2011), paras 115-116 concerning the illegality of enforcing a defective deportation order and Al-Nashif v. Bulgaria App no. 50963/99 (ECtHR, 20 September 2002) para 142 concerning unlawful deportation and lack of effective remedy.
De Souza Ribeiro, para 82; Cf. Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012), para 200 where the court ruled that if anything, suspensive effect should also apply to cases in which a State Party decides to remove an alien to a country where there are substantial grounds for believing that he or she faces a risk of that nature.
Adam Wagner, ‘Deport first, appeal second’ accessed 10 December 2013.
AS (India) v Home Office  CSOH 43.
Paragraph 353 of the Immigration Rules.
SP (Albania) v SSHD  EWCA Civ 951.
Kiarie & Byndloss v SSHD  EWCA Civ 1020; Kiarie & Byndloss v SSHD  UKSC 42.
SS v SSHD  EWHC 1402 (Admin).