UK Immigration Act of 1971 and Its Enforcement with Respect to Administrative Removal/Deportation when Articles 3 and 8 of European Convention of Human Rights are Engaged
Following the terrorist attacks of September 11, 2001, many observers stated that "nothing would ever be the same again" and in some ways they have been absolutely correct. While the United Kingdom continues its inexorable march to become fully integrated into the burgeoning European Union, a number of obstacles remain firmly in place that relate to the perceived need by the UK government to better control movement of foreigners within its borders. The purpose of this study was to provide an examination of the UK Immigration Act of 1971 and its enforcement with respect to administrative removal or deportation when Articles 3 and 8 of European Convention of Human Rights are engaged. This study used a three-chapter format to achieve this research purpose. Chapter one introduces the topic under consideration, provides a statement of the problem, as well as the purpose and methodology of the study. Chapter two presents a review of the relevant and peer-reviewed and scholarly literature, and chapter three presents the study's conclusions and recommendations.
Chapter 1: Introduction
Statement of the Problem
Purpose of Study
Overview of Study
Chapter 2: Review of Related Literature
Chapter 3: Conclusions and Recommendations
An Examination of UK Immigration Act of 1971 and Its Enforcement with Respect to Administrative Removal/Deportation when Articles 3 and 8 of European Convention of Human Rights are Engaged
So many changes have taken place in the United Kingdom and its relationship with its European neighbors since the end of World War II that it is difficult to accurately fathom the impact on its citizens today. Beyond the reshaping of its former empire during the 20th century, the United Kingdom has also experienced some fundamental shifts in its demographic composition. For example, according to Spencer (1997), "In the space of less than half a century, Britain has shifted from being a virtually all-white society to one in which ethnicity and race are significant social and political factors." While the UK has embraced many of the harmonisation initiatives designed to bring the country into better alignment with its European counterparts, many obstacles remain firmly in place that adversely affect the ability of some immigrants to gain access to permanent residency status or to join other members of their family who may already have emigrated.
Statement of the Problem
Today, movement into and exclusion from the United Kingdom is regulated by the Immigration Acts 1971 and 1988, the Immigration and Asylum Appeals Act 1993, and the Immigration Rules 1994 and rules of procedure made under those Acts. The Immigration Act of 1971 established the UK government's complete control over the immigration of people, without a close connection to the United Kingdom by either birth or descent, who were referred to as "non-patrials" in the 1971 Act. According to Houston (2000), "Under the 1971 Act, patrials had the right to abode in the United Kingdom, whereas non-patrials did not. Additionally, the 1971 Act replaced the voucher with a temporary work permit, which, unlike the voucher, did not carry the right of permanent residence."
Today, this patchwork system of immigration control is further reinforced by the Immigration (Carriers' Liability) Act which became effective in 1987. The result of this mish-mash of legislative initiatives attempting to control movement within the UK has been less than desirable. For instance, a recent report by Sanderson cites one UK immigration judge, "Judge J," who, "After 20 years in immigration, has discovered nothing but chaos, confusion and a shambolic structure that does not work. She has stood helplessly by as thousands of illegal immigrants have arrived in the UK and watched the authorities routinely fail to deport them after their appeals were dismissed."
Compounding the problem for both the UK government and those it seeks to deport is the convoluted nature of the controlling legislation and the dynamic nature of the legislative environment in which it is being prosecuted. In this regard, Sanderson points out that "Judge J." ".. has been appalled by the arrogance and incompetence of many of the judges who hear the appeals and the inexperience of the Home Office officials who present them. Prior to 1990 there were very few applications for asylum. And until1992 there were only about six people in the country who could judge asylum appeals, and they had to have seven years' experience as a barrister or a solicitor. Now, there are thousands, increasing at about a rate of 100 a year."
According to Harris and Joseph, the movement of European Economic Area (EEA) nationals and their non-EEA-national family members is controlled by the European Economic Area Order 1994. Further, movement within the United Kingdom is also controlled by a vast array of various legal provisions, including the Prevention of Terrorism Act 1989, which provides for the exclusion from mainland Britain of persons suspected of terrorism, and the new provisions contained in the Criminal Justice and Public Order Act 1994 regulating the movement of travellers. These authors argue that, "The United Kingdom asserts that its immigration controls are applied in a non-discriminatory way, and indeed a prohibition on direct discrimination is contained in the Rules. However they indisputably operate in a manner which disproportionately affects the rights of members of the United Kingdom's ethnic minorities as well as of aliens who are nonwhites."
This is not to say that the UK government has been without any justification or rationale in support of its approach to immigration control; however, it is to say that that UK government has found itself in an increasingly unviable position as it seeks to continue its existing approach in view of the provisions of the European Convention of Human Rights and other agreements to which it is a signatory. For instance, according to Guild (2003), "The right of the United Kingdom to breach international human rights norms in the exercise of a sovereign right to declare an exception depends on the rules that surround the use of the exception. The European Convention of Human Rights [ECHR] permits only the exercise of the article 15 right where there is a public emergency threatening the life of the nation." To date, the UK remains the only signatory to the ECHR that has taken steps to derogate any provision of the ECHR followed the terrorist attacks of September 11, 2001. As Guild points out, "The Parliamentary Assembly of the Council of Europe in Resolution 1271 (2002) urged member states not to provide for any derogations to the ECHR. In particular it called on member states to refrain from using Article 15 to limit the rights and liberties guaranteed under Article 5."
Purpose of Study
The purpose of this study was to provide an examination of the UK Immigration Act of 1971 and its enforcement with respect to administrative removal or deportation when Articles 3 and 8 of European Convention of Human Rights are engaged. To this end, a critical review of the relevant literature was conducted as described more fully below.
The research methodology used to accomplish the above-stated purpose was a critical review of the relevant peer-reviewed, scholarly and governmental literature which is highly congruent with a number of social researchers. For example, Fraenkel and Wallen (2001) note that, "Researchers usually dig into the literature to find out what has already been written about the topic they are interested in investigating. Both the opinions of experts in the field and other research studies are of interest. Such reading is referred to as a review of the literature." Other social researchers suggest that a review of the literature is an essential element in virtually any research project today. According to Linn and Miller (2004), "There are three reasons to do a literature review before proceeding with a study: The literature indicates what research has been done in an area of interest; it also provides information on where gaps exist in current knowledge; and it provides a framework for, and establishes the importance of, a study."
Overview of Study
This study used a three-chapter format to achieve the above-stated research purpose. To this end, chapter one introduced the topic under consideration, provided a statement of the problem, as well as the purpose and methodology of the study. Chapter two presents a review of the relevant and peer-reviewed and scholarly literature, and chapter three presents the study's conclusions and recommendations.
Review of Related Literature
UK Immigration Act of 1971.
The UK Immigration Act of 1971 (hereinafter alternatively the "Act") eliminated the categories of "alien" and "British subject" that had historically been used to divide the world into those from the Empire and Commonwealth who had rights and privileges in the United Kingdom and those foreigners who did not. Upon the passage of the Act, these categories were replaced by the essentially racially-defined categories of 'patrial' and 'non-patrial': "Patrials were free from restrictions; non-patrials were all…