Immigration, Asylum and Human Rights

This book addresses the material details of the Human Rights Act 1998 in the UK and examines the very different new scheme of immigration control mandated by the Immigration and Asylum Act 1999. The authors then analyze the impact of the Human Rights Act 1998

Nicholas Blake QC is a barrister at Matrix Chambers and leading practitioner in immigration, human rights and public law. Raza Husain is a barrister at Matrix Chambers, where he practises in public and administrative law with a particular focus on immigration and civil liberties cases.

Preface

ix

Table of Cases

xi

Table of Primary Legislation

xl

Table of Secondary Legislation

xlix

Table of International Instruments

lii

Introduction

1

(17)

The Human Rights Act 1998 and the Immigration and Asylum Act 1999

18

(46)

Introduction

18

(1)

The scheme of immigration control

19

(3)

The duty to act compatibly

22

(9)

The enforcement of the duty

31

(9)

The application and interpretation of the Convention

40

(12)

Immigration appeals

52

(2)

Section 65 of the IAA 1999

54

(3)

Prevention of abuse

57

(5)

Special Immigration Appeals Commission

62

(2)

The Protection of Life, Bodily Integrity and Human Dignity

64

(50)

Introduction

64

(2)

Scope of application: deliberate harm

66

(11)

Absolute nature of the obligation

77

(2)

Incremental and updating approach

79

(2)

Expulsion cases and the death penalty

81

(3)

The UN Convention Against Torture 1984

84

(3)

Harm by non-state agents

87

(1)

Application to expulsions

88

(5)

Generalized failure of protection

93

(1)

Application in the United Kingdom

94

(20)

Protection from Arbitrary Detention

114

(51)

Introduction

114

(1)

The requirements of Article 5: the right to liberty and security of the person

115

(27)

The domestic legal framework

142

(8)

The impact of Article 5

150

(12)

Home Office, Operational Enforcement Manual, 21 December 2000, Chapter 38

162

(3)

The Protection of Family and Private Life

165

(46)

Introduction

165

(1)

Is there family and private life enjoyed?

166

(9)

Interference with the right to respect for family and private life

175

(14)

Justification: the law

189

(1)

Justification: legitimate motives

190

(2)

Justification: proportionality and necessity

192

(6)

Application

198

(13)

Procedural Rights

211

(100)

Introduction

211

(2)

The requirements of Article 6 and the position at common law

213

(23)

Article 13

236

(4)

Conclusions on the compatibility of domestic immigration law with Articles 6 and 13

240

(2)

Article 6(1): scope revisited---the decision in Maaouia v France and the domestic position

242

(14)

Judicial review and Article 13

256

(8)

Judicial review and statutory appeals to the Court of Appeal: the approach under the Human Rights Act 1998

264

(14)

Judicial review and statutory appeals in the light of the Human Rights Act 1998

278

(33)

Discrimination

311

(25)

Scope of Article 14

311

(25)

Postscript: The Implications of the Anti-Terrorism, Crime and Security Act 2001 for Immigration and Asylum

336

(11)

Introduction

336

(3)

Anti-Terrorism, Crime and Security Act

339

(8)

Appendix One Human Rights Act 1998

347

(29)

Appendix Two European Convention on Human Rights

376

(29)

Index

405

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Immigration, Asylum and Human Rights

Summary

Author Biography

Table of Contents

Supplemental Materials