Rehabilitation or transportation - what now for 'home-grown' foreign national prisoners?

Abstract

Deportation, and immigration control generally, are held not to enjoy the protections of article 6 ECHR (right to a fair trial in a civil or criminal matter) or article 7, which outlaws retrospective criminal penalties. However, the Immigration Act 2014 declaration that ‘deportation of a foreign criminal “is” in the public interest’ has opened the way to retrospective measures against foreign criminals, even long residents with leave to remain. The Act’s formal limits on access to article 8 ECHR and curtailed appeal rights for foreign criminals mean that the ‘effective remedy’ available to ‘aliens’ under article 13 barely applies. This paper argues the need to consider how the current position measures up to the standards of certainty and finality formally protected by the ancient concepts of double jeopardy and res judicata, and consider whether a blanket exclusion of immigration issues from articles 6 and 7 can still be justified. I examine how autrefois convict and autrefois acquit may be applicable where the criminal sentence discussed but did not include a recommendation for deportation, and how res judicata may be applicable where a foreign criminal has already won an appeal on art 8 grounds, or, by analogy, where leave to remain has been granted subsequent to the criminal conviction. I look at whether deportation appeals for unconvicted suspects facing unsupported police evidence amount to a ‘determination of a criminal charge’ despite being neither a criminal or civil trial, and whether deportation as a result of such must amount to a ‘penalty’, so as to engage articles 6 and 7 ECHR