Undesirable, Unreturnable and no effective remedy

Abstract

The Immigration Act 2014’s measures respecting foreign criminals and those unlawfully present on UK territory represent a fundamental attack on the rule of law. The Act declares that the deportation of foreign criminals 'is' in the public interest, presaging revocations of leave and new refusals for those previously granted leave after their criminal convictions. Such would arguably amount to the imposition of retrospective criminal penalties in breach of art 7 ECHR and/or denial of a fair trial in breach of art 6 ECHR. Section 17 removes appeal rights against deportation for foreigners convicted (or suspected) of criminal conduct until they have left the UK, unless they would face ‘a real risk of serious irreversible harm’. However, many migrants, lawfully or unlawfully present, cannot obtain national documents and are therefore unable to leave the UK. Unless removal is ‘simply impossible’ (the 'Hale threshold’, as set out in Khadir) such people will remain indefinitely on temporary admission. To be unable to leave the country to exercise a right of appeal accessible only from outside the UK amounts to a denial of an effective remedy under art 13 ECHR. Similarly, to be unable to leave the UK but have no access to accommodation, support, work, benefits or healthcare unless meeting legally-demanding tests must be challengeable. The exclusion of immigration law from the scope of Arts 6 and 7, confirmed by Maaouia and barely challenged since, rested on an acceptance that immigration control is a purely administrative matter, amenable only to public law challenge: and on there being other remedies for 94bthose facing expulsion. Both the changing legal character of immigration control, and the diminishing access to other remedies, demand a detailed review of that judgment