An investigation of the struggle against terrorism in the post HRA 1998 era, the basis of concerns, and legal remedies

Doktorarbeit / Dissertation , 2015 , 77 Seiten

Jura - Öffentliches Recht / Staatsrecht / Grundrechte

The fundamental purpose of this study is to investigate whether foreign terrorists are taking advantage of HRA to obtain and retain their shelters in the UK; moreover, this paper will also scrutinise whether the legal remedies, that is, the grounds for derogation under the Act are sufficient to provide a viable way out to this perceived crisis or not.

The findings of this paper reveal that a considerable number of terrorists have used the law to obtain and retain their shelters; in addition, the clauses of derogation were not sufficient to allow the state to solve the problem in order to conserve public security. In fact, the courts delivered some very authoritative judgements, firmly establishing the concept that deportations are not possible in defiance of the Articles of the Convention, and this in turn has encouraged more foreign offenders to seek asylum in the UK. The rising number of terrorists may cause a long-term impact on the society, and there are apprehensions that preserving the rights of the foreign terrorists would jeopardize the rights of innocent citizens.

Since the September 11 attacks, the UK governments always prioritised the struggle to push back terrorism by every possible manoeuvre. One foremost step to restrict terrorist activities was to ensure the outflow of terrorists living in the UK, and to resist the terrorists seeking refuge in the UK from obtaining shelter. Conversely, HRA 1998 incorporated the ECHR with the key aspiration of safeguarding the rights of every single human being within the UK‘s territory; however, in the subsequent period, the Home Secretary remained persistent in alleging that significant numbers of terrorists are circumventing deportations on human rights grounds, making the struggle against terrorism more difficult in post HRA platform.

TABLE OF CONTENT

Table of Statutes

Table of Cases

Table of Figures

Abbreviations

CHAPTER ONE: PROBLEM STATEMENT
1.1 Introduction
1.2 Background of the Problem
1.3 Rationale for the Research
1.4 Research Question and Objectives

CHAPTER TWO: LITERATURE REVIEW
2.1 ECHR Adoption, Terrorism, and the Protection of Innocents
2.1.1 Need for Enhanced Counterterrorism Today
2.1.2 Intensifying Intimidation by Fanatics and HRA 1998
2.2 Obtaining Shelter since ECHR Adoption
2.3 Shelter Retention by Terrorists
2.4 The Derogations and the Perceived Problem
2.4.1 War and Emergency
2.4.2 Actual Scope of the Derogations
2.5 Moral Dilemma in Endorsing Terrorists’ Civil Liberties

CHAPTER THREE: RESEARCH METHODOLOGY
3.1 Research Design
3.2 Primary Sources
3.3 Secondary Sources
3.4 Research Approach
3.5 Data Analysis Method
3.6 Ethics Statement
3.7 Limitations of this Study

CHAPTER FOUR: FINDINGS AND RESULTS
4.1 Are Foreign Terrorists Exploiting HRA to Obtain Shelter?
4.2 Are Foreign Terrorists Exploiting HRA to Retain the Shelter?
4.3 To What Extent Does the Law Resolve the Problem?

CHAPTER FIVE: DISCUSSION
5.1 A Platform for Terrorists to Get Refuge
5.1.1 Latent Impact on Society
5.2 Synthesizing Shelter Retention Mechanisms and Recent Cases
5.2.1 Political Viewpoints Regarding the Problem
5.3 Scope to Graft a Solution within the Present Legal Framework
5.4 Irreconcilable Aspects

CHAPTER SIX: RECOMMENDATIONS AND CONCLUSION
6.1 Recommendations
6.2 Conclusion

BIBLIOGRAPHY

APPENDIX

ABSTRACT

Since the September 11 attacks, the UK governments always prioritised the struggle to push back terrorism by every possible manoeuvre. One foremost step to restrict terrorist activities was to ensure the outflow of terrorists living in the UK, and to resist the terrorists seeking refuge in the UK from obtaining shelter. Conversely, HRA 1998 incorporated the ECHR with the key aspiration of safeguarding the rights of every single human being within the UK’s territory; however, in the subsequent period, the Home Secretary remained persistent in alleging that significant numbers of terrorists are circumventing deportations on human rights grounds, making the struggle against terrorism more difficult in post HRA platform.

The fundamental purpose of this study is to investigate whether the foreign terrorists are taking advantage of HRA to obtain and retain their shelters in the UK; moreover, this paper will also scrutinise whether the legal remedies, that is, the grounds for derogation under the Act are sufficient to provide a viable way out to this perceived crisis or not. The findings of this paper reveal that a considerable number of terrorists have used the law to obtain and retain their shelters; in addition, the clauses of derogation were not sufficient to allow the state to solve the problem in order to conserve public security. In fact, the courts delivered some very authoritative judgements, firmly establishing the concept that deportations are not possible in defiance of the Articles of the Convention, and this in turn has encouraged more foreign offenders to seek asylum in the UK. The rising number of terrorists may cause a long-term impact on the society, and there are apprehensions that preserving the rights of the foreign terrorists would jeopardize the rights of innocent citizens.

ACKNOWLEDGEMENT

It was really a long journey for me to complete this dissertation and it was also quite impossible for me to reach at the final conclusion of this research without the support and guidance of the ‘Undergraduate Law Programme’ of University of London International Programmes that provided me appropriate direction for more feasible outcomes. I must remember the University’s contribution to enabling me to attain required skills for such a hard job within limited deadline.

My parents and family members taught me persistence, self-respect, and ability of independent working; they have extended their uncountable support and cooperation in every aspect enabling me develop this dissertation; their gentle encouragement, love, and impetus for time management assisted me to complete this dissertation within the scheduled period; I am proud of them and I express gratefulness to them.

This acknowledgment could not be concluded without giving any credit to my little sister who continuously asked how far I made progress to finish my dissertation; moreover, she afforded enough time for me to keep me delighted and smiling during this study, so a great thanks to her.

Table of Statutes

Anti-terrorism, Crime and Security Act 2001

Human Rights Act 1998

Prevention of Terrorism Act 2005

Terrorism Prevention and Investigation Measures Act 2011

Table of Cases

A and Others v UK App no 3455/05 (ECtHR, 19 February 2009)

AA v UK App no 8000/08 (ECtHR, 20 September 2011)

AH Khan v UK App no 6222/10 (ECtHR, 20 December 2011)

AW Khan v UK App no 47486/06 (ECtHR, 12 January 2010)

Balogun v UK App no 60286/09 (ECtHR, 10 April 2012)

Brannigan and McBride v UK App nos 14553/89 and 14554/89 (ECtHR, 25 May 1993)

Chahal v UK App no 22414/93 (ECtHR, 15 November 1996)

D v UK App no 30240/96 (ECtHR, 2 May 1997)

EG v UK App no 41178/08 (ECtHR, 31 May 2011)

Gäfgen v Germany App no 22978/05 (ECtHR, 1 June 2010)

Gaoua v SSHD 2004 EWCA Civ 1528

Gaygusuz v Austria App no 17371/90 (ECtHR, 16 September 1996)

Ireland v UK App no 5310/71(ECtHR, 18 January 1978)

J1 v SSHD 2013 EWCA Civ 279

Klass and others v Germany App no 5029/71 (ECtHR, 6 September 1978)

Lamguindaz v UK App no 16152/90 (ECtHR, 13 October 1992)

Lawless v Ireland (No. 3) App no 332/57 (ECtHR, 1 July 1961)

Omojudi v UK App no 1820/08 (ECtHR, 24 November 2009)

Othman (Abu Qatada) v UK App no 8139/09 (ECtHR, 17 January 2012)

RB (Algeria) (FC) and another v SSHD 2009 UKHL 10

Soering v UK App no 14038/88 (ECtHR, 07 July 1989)

SSHD v AF and another and one other action 2009 UKHL 28

Sufi and Elmi v UK App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011)

The Greek Case (1969) 12 YB 1

W (Algeria) (FC) and BB (Algeria) (FC) and others v SSHD 2012 UKSC 8

YM (Uganda) v SSHD 2014 EWCA Civ 1292

Table of Figures

Figure 1: Key steps

Figure 2: Sources of Data

Figure 3: Deportations cases at ECtHR

Figure 4: Trends in asylum appeals before and after HRA 1998

Figure 5: Total asylum requests received (comprising dependants)

Figure 6: Foreign criminals living at community

Figure 7: Deportations compared with inflow of foreign criminals

Figure 8: Terrorist attacks in EU countries

Figure 9: Shelters obtained under Article 8

Figure 10: Shelters obtained under Article 3 and 8 together

Figure 11: Shelters obtained under Article 3

Abbreviations

ATCSA – Anti-terrorism, Crime and Security Act 2001

CCP – Code of Criminal Procedure

ECHR – European Convention on Human Rights

ECtHR– European Court of Human Rights

EWCA Civ – England and Wales Court of Appeal (Civil Division)

HRA – Human Rights Act 1998

JCHR – Joint Committee on Human Rights

LIFG – Libyan Islamic Fighting Group

PTA – Prevention of Terrorism Act 2005

SIAC – Special Immigration Appeals Commission

SSHD – Secretary of State for the Home Department

UKSC – United Kingdom Supreme Court

TPIMA – Terrorism Prevention and Investigation Measures Act 2011

CHAPTER ONE: PROBLEM STATEMENT

1.1 Introduction

The terrorist threats are accelerating globally at a fast rate following the 9/11 attacks; consequently, it became more crucial for the UK to ensure public safety through diverse mechanisms; however, ensuring deportation of foreign-born terrorists remained to be a great challenge, and the formulation of HRA was considered as the key contributor to this problem by many people. Through an assessment of the underlying dilemmas, this dissertation will investigate whether the landscape offered by HRA 1998 has significantly hampered the UK’s efforts in attempting to remove the unsafe foreign individuals for national security purposes; moreover, it would also identify the extent to which the law is likely to resolve the alleged problem.

This study will focus on constructing six principal chapters, which includes an analysis of the problem statement, explanation of the conceptual framework in the literature review, designation of the research methodology, extraction of the key findings and results, and the prolongation of further arguments in the discussion, which will eventually facilitate the attainment of the recommendations and conclusion.

1.2 Background of the Problem

Whitehead stated that one-fifth of some fifty Libyans who were given asylum in UK could not be removed even though they engender hazard for national security because most of them were affiliates of extremist group LIFG,¹ which meant that they were likely to be ‘tortured’ by Gaddafi upon refoulement, and this would violate the human rights of those individuals.² Conversely, according to JCHR,³ there has been a continuous trend amongst the foreign offenders seeking refuge in the UK to challenge banishment decisions under Article 3 and 8 of the HRA 1998,⁴ and an analysis of the decisions delivered by the courts indicate that in most cases the appellants have succeeded in retaining their shelters.⁵ In the later years, a large number of terrorists and offenders from all over the world have applied to get shelter in the UK and even more alarmingly, different cases demonstrated that even after obtaining shelters, such individuals continued their linkages with the terrorist organisations and carried out their activities in the host country.

The socialisation of the terrorists in the UK is highly likely to bring immense social changes by motivating a growingly number of local people to the fundamentalist ideologies; for instance, Cramb pointed out that very recently three schoolgirls from London flied to Turkey with aim of joining the Islamic States fighters in Syria in order to marry the Jihadists.⁶ The UK finds it tougher to provide preventive measures to safeguard the citizens from the probable ill motivations, and these activities have emerged with the emergence of the number of fanatics; moreover, it has not been possible for the country to always adhere to the principles of HRA strictly, because certain gaps are present between its objectives and attainments.

1.3 Rationale for the Research

Since eighties, the UK has observed huge terrorist attacks in its major cities, and most of those events resulted in tragic loss of life, massive destruction of infrastructure, breakdown the supply chain of miscellaneous businesses, increased panic in the marketplace, reduction of sales and consumption, as well as remarkable fall in investment, appending strong pessimistic impacts on the economic growth.⁷ In the history of UK attacks, the IRA attack on trade and financial services, recent bombings in London, and the violence over the police and security forces generated great distress amongst the people; conversely, the increasing tendency of the citizens to join Islamic State terrorists and the returns of the trained British Jihadists have given birth to another frightening episode.⁸ There are a number of anti-terror laws to deal with the crisis, which contains provisions to downgrade some of the civil liberties of the terrorists for the sake of national security. The government continued to suggest that these laws fall within the scope of permissible derogations and so are not conflicting with the HRA scheme. However, there are considerable substantiations that demonstrate that the derogations permitted under the HRA are narrow enough for not being able to accommodate the vast range of derogative agenda required under the anti-terror laws.

1.4 Research Question and Objectives

An extensive number of studies have been conducted on the impact of counterterrorism laws or the inappropriate detention procedures of the terrorists and the consequent breaches of rights and freedoms under the HRA; however, so far no research has raised the question of whether there is some evidential proof suggesting that the foreign fanatics are exploiting their freedoms under HRA.

The main objective of this dissertation is to identify the gap between ensuring national security by deporting dangerous individuals, and upholding the human rights of those persons under general principles of the European Convention. In this context, this study will consider whether there could be situations under which one could claim its privilege over the other, and whether giving dominance to one is likely to shatter the functioning of the other. This paper also briefly considers the derogations provided under the law and the sufficiency of those derogations to allow the UK to ensure the public security and social stability under the present legal framework; to be precise, this paper is devised with the following research question: –

- Is there evidence that foreign terrorists are taking advantage of the Human Rights Act, 1998, to obtain and retain shelter in the UK, and to what extent does the law resolve the perceived problem?

The research question can be dissected into the following sub-questions in order to ensure a better scrutiny of the concepts: –

- Are foreign terrorists exploiting HRA to obtain shelter in the UK?
- Do they exploit HRA to retain the shelter?
- To what extent does the law resolve the problem?

CHAPTER TWO: LITERATURE REVIEW

2.1 ECHR Adoption, Terrorism, and the Protection of Innocents

According to Elliott, since the integration of ECHR⁹ into the unwritten-British constitution through the enforcement of HRA in October 2000, and the fortification of the former toothless pronouncements of civil liberties, considerable transformations occurred in the legal and political periphery;¹⁰ moreover, Vick added that this has made the Diceyan¹¹ explications regarding the orthodoxy of parliamentary sovereignty somewhat dubious.¹² Conversely, since the elementary perception behind the Human Rights Act, in a nutshell, was to treat every individual impartially through deferential and humanitarian perspective, Gearty argues that following the World Trade Centre attacks, numerous questions arose regarding the idealistic and political reliability of HRA, exposing its elementary notion to some specific challenges.¹³ Kostakopoulou stated that it is comprehensible from 9/11 attacks and several other bombings that terrorism is predominantly intolerable because of commonly targeting innocent citizens;¹⁴ however, as Jollimore argues, due to misconstruction of the rationalization behind demolishing extremism, many theorists are sceptical to acknowledge that despite the HRA, stern steps against terrorists can be justified by reason of civilians’ innocence.¹⁵

2.1.1 Need for Enhanced Counterterrorism Today

Enders and Sandler noted that the 9/11 catastrophe, London Subway bombings, Mumbai attacks, and numerous such barbaric events in this 21st century clarifies the indispensability to adopt stronger counterterrorism measures to better protect innocents citizens;¹⁶ furthermore, Sandler suggested that intimidation by extremists amplified rapidly throughout Europe mainly in the last decade.¹⁷ Graham-Harrison noted that while Al-Qaeda seemed to be the major apprehension for the Western world a few years ago, at present, countless terror groups are exemplifying simultaneous threats; more astonishingly, the dramatic and abrupt emergence of ‘Islamic State’ and the rapid expansion of its global reach is also displaying how desperately innocent lives need greater defence.¹⁸

2.1.2 Intensifying Intimidation by Fanatics and HRA 1998

According to Murray, since its enactment, the 1998 Act has strengthened the role of the judiciary in terms of better protecting the civil liberties of individuals, which in turn has resulted in greater empowerment of the citizens in terms of averting the infringement of their rights by gigantic public bodies.¹⁹ Warbrick states that the provisions enshrined under Part I of HRA 1998 Schedule 1 are primarily based on the notion of defending the civil liberties of every human being, which, according to him, is the most valued approach of the Act.²⁰

Wildbore pointed out that with the rise of religious fundamentalism, the civilization today has observed the uncontrollable brutality by the fanatics when it comes to carrying out heinous attacks over innocent civilians indiscriminately.²¹ Article 3 prohibits torture;²² however, Miller questions whether, or to what extent, the plotter of such an attack, who is adamant not to reveal the details of his accomplices or information regarding the upcoming attack at any cost, can reserve this right justifiably, provided that it has to be acquired at the price of several innocent lives.²³ Miller insisted that it is essential for human rights law to stipulate that if an individual plots or executes a sufficiently brutal massacre, s/he should be shunned to be treated as human, the central precondition for being considered under HRA; instead, s/he should be treated as being degraded to an inhuman who cannot be subjected to human rights.²⁴

While most commentators believe that HRA has strengthened liberal democracy, Wallach suggests that parliamentary sovereignty is the key contributor of liberal democracy, and liberal democracy guarantees better security, wellbeing, and fundamental freedoms of people.²⁵ Wallach added that if HRA hinders parliamentary sovereignty, it also clandestinely hinders liberal democracy, which is demonstrated when ruthless killers reserve the civil liberties even after a massacre that threatened people’s security and freedoms, encouraging further terrorists to demolish democracy by devastating people’s liberal interests.²⁶

2.2 Obtaining Shelter since ECHR Adoption

Throughout the recent years, one issue that has received extensive media coverage is the tricky allegation that due to over preservation of civil rights, the UK is turning into a ‘safe haven’ for extremists and suspects of extremism from around the world. Casciani suggested that Lord Carlile supported this implication by further adding that the ECtHR²⁷ judgements have made it very hard to eliminate perilous individuals from the country and it is necessary to convince ECtHR that the potential hazard of maltreatment arising from refoulement must be equilibrated with the rising intimidations by the terrorists over public safety.²⁸

The management of asylum-seekers and their eliminations from the national territory is not just a case of immigration policy, but also a vital issue of human rights as well;²⁹ additionally, according to Joint Committee on Human Rights, although international bylaws appreciate that the countries are entitled to regulate asylum-seekers, the UK is obliged to comply with ECHR via HRA 1998.³⁰ Consequently, the government must protect every individual inside UK’s jurisdiction with the liberties provided under ECHR,³¹ and this comprises the asylum-seekers as well;³² moreover, in due course of ensuring the Convention rights, the country cannot practice any sort of discrimination,³³ unless, as suggested by Gaygusuz v Austria,³⁴ some exceptionally profound justifications are present to rationalise the prejudice based on nationality. Nazarova analytically mentioned that the explicit inclusion of the obligation to consider fundamental rights issues in asylum cases means that people from the unsafe regions of the world will always prefer to seek shelter in the UK.³⁵

2.3 Shelter Retention by Terrorists

Mendick suggested that throughout the last ten years, twenty convicted fanatics and eight suspects avoided an expulsion from the UK following the outcome of some lawsuits, whilst the legal representatives, who are normally financed from legal aid budgets, have utilised HRA 1998 to thwart the eviction of those individuals.³⁶ One such individual was Abu Qatada, who, according to Gardham, had announced numerous powerful ‘religious-rulings’ to slaughter atheists and had deep links to Al Qaeda; moreover, he had counselled Mohammed Atta, an instigator of the 9/11 atrocity, Rachid Ramda, the fundraiser of 1995 Paris hostility, and Djamel Beghal, the conspirator of the attempted attack on US embassy at Paris.³⁷ Horne, Gower, and Dawson stated that the Home Secretary and SIAC³⁸ frequently expressed this Jordanian radical religious cleric as an extremely harmful person for national security, while a Spanish judge noted him to be a top-collaborator of Osama;³⁹ moreover, during his arrest, he had huge amounts of money with him, which also consisted of funds for the Chechen Jihadists.⁴⁰

According to Othman (Abu Qatada) v UK ⁴¹, after escaping from Jordan and moving to Pakistan, Qatada entered UK in 1993 by effectively applying for refuge on grounds of being confined and tortured at Jordan earlier; afterwards, he was arrested under ATCSA⁴² for terrorism-related activities, and then, he confronted control order under the PTA,⁴³ and received deportation notice as well.⁴⁴ Previously, Jordan had convicted him in absentia for participation in terror plots, and so he appealed arguing that eviction would result in torment, prolonged confinement, and unjust trial; nevertheless, the House of Lords noted that the agreement between Jordan and UK to safeguard the civil liberties would ensure fair trial in accordance with ECHR; subsequently, Qatada appealed at ECtHR.⁴⁵

Bonner pointed out that it was at this stage that the European Court put forward the analysis that Qatada should be allowed to retain his shelter within the UK, as his removal would result in a potential ‘unfair trial’ at his homeland, which is an unacceptable breach of his fundamental rights.⁴⁶ Nevertheless, Horne, Gower, and Dawson pointed out that the UK administration ultimately succeeded in expelling him in 2013 following a fresh treaty between the two nations and some key changes to the Jordanian system to make sure that Jordan maintains the civil liberty of extradited individuals in terms of fair trial.⁴⁷

McGhee pointed out that in the tension between the affirmations of upholding the fundamental rights of those who have anyhow engaged themselves in terrorism, and the governmental pledges to ensure impressive level of national security, a pertinent balance can never be struck.⁴⁸ For example, the UK authorities in J1 v SSHD⁴⁹ failed to extradite a dangerous terror conspirator to his homeland, and according to Mendick, this Ethiopian was not merely an intimate friend of Jihadi John, but he had associations with numerous other terrorists as well, and this encompassed the fanatics who attempted to carry out the 21/7 London suicide attacks.⁵⁰ In addition, according to certain reports from administrative departments, this man had remained to be a member of Al Qaeda, a dynamic partaker in several dreadful hostilities, and one of the most vital planners of Al Shabaab.⁵¹

In YM (Uganda) v SSHD,⁵² the appellant, a Ugandan national, had a dreadful track record since his adolescence; Mullin noted that when he was fourteen, he had served a sentence for robbery; later, when he was fifteen, he was found guilty of actual bodily harm, and at eighteen, he attacked policemen three times, besides of committing furious burglary at nineteen.⁵³ Mullin added that subsequently in 2005, YM became close with a religious extremist, called Hamid, which prompted him in taking part in two separate outrageous extremist coaching centres, while he was detained by officials before he appealed on human rights ground to prevent his expulsion.⁵⁴ Similarly, in W (Algeria),⁵⁵ eight heinous terrorists were allowed to stay within the UK’s territory because extraditions would result in violations of their freedom from torture, even though Home Secretary had marked them as posing serious threats to the national security.

Ahead of the Gaoua v SSHD⁵⁶ case, the appellant, a convicted terror-plotter, had appealed for asylum using Article 3 of HRA to prevent his potential humiliating treatment upon expulsion; on the other hand, a man named Benmerzouga, who aided the appellant earlier, had a companion called Meziane, and both of these men were detained due to extremist activities previously. Mendick reported that Meziane was an fanatic who administered an extremist-funding system, and had effectively avoided extradition on grounds of non-refoulement and respect for family-life, as he had kids in Britain; however, UK government continued considering him as a threat since he had connections with Charlie Hebdo hostilities; moreover, he was a friend Beghal, the instructor of the Paris gunmen.⁵⁷

Wallach believes that historically, the integral nature of politics had a procedural divergence with the practices of civil liberties; however the contradiction between ‘human rights’ (which was extracted from a concept of ensuring better public life), and the wider interests of the communities, had never been so evident until recently; therefore, today, citizens desire to forestall terror by political coercion.⁵⁸

Gearty found that this crisis, namely, the conflict between human rights and national security, has been witnessed by the British society throughout centuries, whilst continuous contradiction of viewpoints were noticeable between the public intellectuals, whom he called the ‘human-rights-loving-people’, and the Government.⁵⁹ In his writing in 2005, Gearty compared an 1865 scenario with a contemporaneous social and political tension concerning terrorism. He explains that when Irish Fenians conducted terrorist hostility in London causing several deaths and injuries, Prime Minister Benjamin Disraeli called for the repeal of Habeas Corpus; conversely, Metropolitan Police Commissioner informed that ten thousand terrorists were staying in London, and so fifty thousand new constables were appointed for counterterrorism, with Queen Victoria wishing the terrorists to be ‘lynch-lawed’. However, Karl Marx, the ‘public intellectual’, opposed these counterterrorism activities, arguing that public masses had huge compassion for the underlying cause behind the event.

Kostakopoulou feels that parliamentary democracies respect both the electoral systems and civil liberties;⁶⁰ however, as Fabbrini argues, people’s votes award the government with the authority to intercede legitimately in public interest, while the civil liberties impose limitations on such capacities;⁶¹ so, Hardin and Kavanagh observes that this fusion could naturally prompt anxieties and clashes between the two diverging forces.⁶²

2.4 The Derogations and the Perceived Problem

ECHR has been given effect in the UK through the HRA 1998, and in due course, ECHR Article 15 has also been incorporated,⁶³ which permits member states to deviate from granting civil liberties during war and life-endangering public emergencies to a degree stringently essential for exigencies of the circumstance; however, ECHR does not sufficiently define ‘public emergency’ and its scope.⁶⁴

2.4.1 War and Emergency

The aim of Article 15 is to regulate the propensity to annihilate civil liberties in the liberal democracies during public emergencies;⁶⁵ accordingly, the Convention affirmed that countries cannot depart from Article 3, 4 (first-paragraph), 7, and 2 (excluding wartime-deaths);⁶⁶ however, this has been noted that in order to retain their shelters, terrorists frequently rely on Article 3, 6, and 8.⁶⁷

This means that in emergency circumstances, the UK may derogate from Article 8 and 6 to instigate a deportation by denying human rights grounds,⁶⁸ but the right under Article 3 is absolute, and no derogation is possible from it;⁶⁹ therefore, this is imperative to recognize the level to which Britain can derogate from Article 6 and 8. This concept was analysed in AF, ⁷⁰ where Lady Hale explicitly argued that if it is indispensable to apply severe limitations over one’s freedom providing him no chance to contest, government must decide whether to deviate from Article 6,⁷¹ and in such case, it is important to reconsider whether the public emergency still remains the same as it was in 2001.⁷²

2.4.2 Actual Scope of the Derogations

Due to the blurriness surrounding the phrase ‘public emergency’, countries more often fail to appreciate the situations when they can derogate;⁷³ nevertheless, in spite of the absence of clarification in the Convention, the term ‘public emergency’ was defined in The Greek Case,⁷⁴ which requires some highlight . The case stipulates that the crisis should be genuine or forthcoming, upsetting for the entire country, intimidating for organised-life, and unique in a way that limitations allowed by ECHR is insufficient;⁷⁵ however, Cowell noted that European and domestic Courts yet did not explain whether shifting traits of war, like war-envisioned strategies like ‘war on terror’ could be regarded as emergency.⁷⁶

Lawless v Ireland⁷⁷ indicated that terrorism may not always avert regular operations of the country, but it should characterize substantial pragmatic risk for rationalising the derogation; moreover, derogation is only possible to a degree stringently essential for exigencies of the circumstance, and in A and Others v UK,⁷⁸ UK administration’s derogation after 9/11 violence was considered unacceptable and disproportionate. Brannigan and McBride v UK⁷⁹ reflected that ECtHR extensively applauded such restraint of upon governments and suggested that in such situations, governments must anticipate tougher inspections than that of the domestic benchmarks; conversely, in Klass and others v Germany⁸⁰ it was stated that member country’s decision would not be replaced with ECtHR’s decision unless replacement is indispensable for the situation.

According to Dembour, ECtHR judges displayed eagerness to give certain countries much superior autonomy, and the strictness attached in terms of proportionality in some cases made derogation more complex for governments; however, no exits from the ECHR were induced in the cases where countries failed to halt civil liberties at some point in a crisis.⁸¹

According to Warbrick, by utilising this limited scope of deviation under Article 15, the UK has formulated numerous counterterrorism laws, most of which contained provisions, which were incompatible with the Convention.⁸² For example, Part 4 of ATCSA was largely draconian and was replaced by Control Orders under PTA, but this made little difference to the incompatible nature of the policy; moreover, to minimise the effect, TPIMA⁸³ was formulated to present a reasonable substitute to the incompatible scheme,⁸⁴ but its effectiveness remained under suspicion.⁸⁵

2.5 Moral Dilemma in Endorsing Terrorists’ Civil Liberties

Hardin pointed out that in the era of mounting terrorism, the allowance of civil liberties to everyone raised the question of whether there is a moral complexity between upholding the rights of individuals and preserving the citizen’s security as a whole.⁸⁶ Kostakopoulou says that the UK and rest of the Europe faces a critical dilemma as to how the state should ensure security for its citizens without violating individual’s freedom; she added that liberal democracies possess moral and legal duties of upholding the veracity of the political customs in defying fanaticism, and this dogma is indeed not superfluous.⁸⁷

Professor Hart accepted that by tradition, legal constituents have been affected by moral doctrines;⁸⁸ earlier, Lord Devlin had expressed his observation that the key purpose of law is to preserve public morality,⁸⁹ and truly, such theoretical standpoints provoke the deduction that there is a need to diminish the divergence between the legal and moral practices at the contemporary age.⁹⁰ Jollimore noted that essentially, moral notions of the society presume that violating freedoms of a terrorist is reasonably ethical in order to safeguard the people;⁹¹ on the other hand, empowering the law enforcement agencies with the authority to violate civil liberties of a suspect may also breach the proper ethical standards.⁹² Miller concluded that persecution of extremists is ethically acceptable in harsh circumstances – if law enforcers fail to deactivate a bomb fixed by an arrested terrorist, persecuting him to know the method of deactivating it would be justifiable if he does not explain it otherwise;⁹³ contrarily, Draghici suggested that without warfare or public emergency, encroachments of civil liberties are never acceptable.⁹⁴

[...]

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¹ Libyan Islamic Fighting Group.

² Tom Whitehead, 'Terror suspect among dozens of Libyans granted shelter in UK' The Telegraph (London, 08 October 2013) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10362011/Terror-suspect-among-dozens-of-Libyans-granted-shelter-in-UK.html> accessed 05 February 2015.

³ Joint Committee on Human Rights.

⁴ Human Rights Act 1998, sch 1, pt I, art 3 and 8.

⁵ Joint Committee on Human Rights, The Treatment of Asylum Seekers (2006-07, HL 81-I, HC 60-I).

⁶ Auslan Cramb, ‘Jihadi bride denies recruiting London girls' The Telegraph (London, 16 March 2015) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11475714/Jihadi-bride-denies-recruiting-London-girls.html> accessed 17 March 2015.

⁷ London Chamber of Commerce and Industry, ‘The Economic Effects of Terrorism on London – Experiences of Firms in London’s Business Community’ (2005) <http://www.londonchamber.co.uk/docimages/754.pdf> accessed 23 January 2015.

⁸ Hannah Stuart, ‘British Jihadists: Preventing Travel Abroad and Stopping Attacks at Home’ (Centre for the Response to Radicalisation and Terrorism, Policy Paper No 1, 2014) <http://henryjacksonsociety.org/wp-content/uploads/2014/10/British-Jihadists.pdf> accessed 23 January 2015.

⁹ European Convention on Human Rights.

¹⁰ Mark Elliott, ‘The War on Terror and the United Kingdom’s Constitution’ (2007) 1 European Journal of Legal Studies <http://www.ejls.eu/1/11UK.pdf> accessed 28 October 2014.

¹¹ Belonging or relating to the ideas of Professor Albert Venn Dicey.

¹² Douglas Vick, 'The Human Rights Act and the British Constitution' (2002) 37 (329) Texas International Law Journal <http://www.tilj.org/content/journal/37/num2/Vick329.pdf> accessed 24 February 2015.

¹³ Conor Gearty, ‘11 September 2001, Counter-Terrorism, and the Human Rights Act’ (2005) 32 (1) Journal of Law and Society <http://www.jstor.org/stable/3557214> accessed 22 February 2015; Paul Mendelle and Ali Naseem Bajwa, 'Human Rights and Terrorism' (2008) 30 Criminal Law and Justice Weekly <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T20935880792&randomNo=0.07481241825743912&csi=280390&docNo=12> accessed 10 November 2014.

¹⁴ Dora Kostakopoulou, 'How to Do Things with Security Post 9/11' (2008) 28 (2) Oxford Journal of Legal Studies <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T20937106447&randomNo=0.9215296012571245&csi=302218&docNo=13> accessed 10 November 2014; Robert Spano, 'Universality or Diversity of Human Rights?' (2014) 14(3) Human Rights Law Review <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T20907762815&randomNo=0.6099760339294846&csi=385474&docNo=35> accessed 26 October 2014.

¹⁵ Troy Jollimore, ‘Terrorism, War, and the Killing of the Innocent’ (2007) 10 (4) Ethical Theory and Moral Practice <http://www.jstor.org/stable/40602532> accessed 22 February 2015.

¹⁶ Walter Enders and Todd Sandler, The Political Economy of Terrorism (2nd edn, Cambridge University Press 2012) 103ff.

¹⁷ Todd Sandler, 'The Analytical Study of Terrorism: Taking Stock' (2014) 51 (2) Journal of Peace Research <http://jpr.sagepub.com/content/51/2/257.full.pdf+html> accessed 27 February 2015.

¹⁸ Emma Graham-Harrison, 'How Islamic State Is Expanding Its Empire of Terror' The Guardian (London, 21 February 2015) <http://www.theguardian.com/world/2015/feb/21/islamic-state-empire-al-qaida-isis> accessed 28 February 2015.

¹⁹ Colin RG Murray, 'Of fortresses and caltrops: national security and competing models of rights protection' in Rob Dickinson and others (eds), Examining Critical Perspectives on Human Rights (Cambridge University Press 2012) 111ff.

²⁰ Colin Warbrick, 'The European Response to Terrorism in an Age of Human Rights' (2004) 15 (5) European Journal of International Law <http://www.ejil.org/pdfs/15/5/400.pdf> accessed 27 February 2015.

²¹ Helen Wildbore, 'The Protection of Freedom under the Human Rights Act: What We've Gained' (2009) 2 UCL Human Rights Review <http://heinonline.org/HOL/Page?handle=hein.journals/uncolhurire2&id=130> accessed 11 November 2014; Hemme Battjes, 'In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed' (2009) 22(3) Leiden Journal of International Law <http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=45386357&site=ehost-live> accessed 8 November 2014.

²² HRA 1998, sch 1, pt I, art 3.

²³ Seumas Miller, Terrorism and Counter-Terrorism: Ethics and Liberal Democracy (1st edn, Wiley-Blackwell 2008).

²⁴ ibid.

²⁵ John R Wallach, 'Human Rights as an Ethics of Power' in Richard Ashby Wilson (ed), Human Rights in the 'War on Terror' (Cambridge University Press 2005).

²⁶ ibid.

²⁷ European Court of Human Rights.

²⁸ Dominic Casciani, ‘Terror watchdog says UK is safe haven for suspects’ BBC News (London, 3 February 2011) <http://www.bbc.com/news/uk-politics-12356563> accessed 05 February 2015.

²⁹ Ministry of Justice, Responding to Human Rights Judgments (Cm 8162, 2011).

³⁰ Joint Committee on Human Rights, The Treatment of Asylum Seekers (n 4); Helen Fenwick, 'Recalibrating ECHR rights and the role of the Human Rights Act post 9/11: reasserting international human rights norms in the war on terror?' (2010) 63 (1) Current Legal Problems <http://clp.oxfordjournals.org/content/63/1/153.full.pdf> accessed 26 February 2015.

³¹ Miša Zgonec-Rožej, 'Al-Jedda v. United Kingdom' (2012) 106(4) American Journal of International Law <http://www.jstor.org/stable/10.5305/amerjintelaw.106.4.0830> accessed 11 November 2014; Judith Farbey, 'Standing in the Home Secretary's Shoes? The Function of the Tribunal in Human Rights Cases' (2013) 27(4) Journal of Immigration, Asylum, and Nationality Law <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T20938008727&randomNo=0.6855667788994043&csi=372226&docNo=19> accessed 10 November 2014.

³² British Institute of Human Rights, ‘Your Human Rights a Guide for Refugees and Asylum Seekers’ (2006) <http://www.chawrec.org.uk/documents/resources/research/a/Your%20human%20rights%20a%20guide%20for%20refugees%20and%20asylum%20seekers.pdf> accessed 29 February 2015.

³³ Peter Aspinall and Charles Watters, Refugees and Asylum Seekers a Review from an Equality and Human Rights Perspective (Equality and Human Rights Commission 2010).

³⁴ App no 17371/90 (ECtHR, 16 September 1996).

³⁵ Inna Nazarova, 'Alientating “Human” from”Right”: U.S. and UK Non-Compliance with Asylum Obligations under International Human Rights Law' (2001) 25 (5) Fordham International Law Journal <http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1849&context=ilj> accessed 29 February 2015.

³⁶ Robert Mendick, 'Human Rights Act has helped 28 terrorists to stay in UK' The Telegraph (London, 31 January 2015) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11381944/Human-Rights-Act-has-helped-28-terrorists-to-stay-in-UK.html> accessed 12 March 2015.

³⁷ Duncan Gardham, 'Profile: Abu Qatada' The Telegraph (London, 09 May 2012) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/9213640/Profile-Abu-Qatada.html> accessed 12 January 2015.

³⁸ Special Immigration Appeals Commission.

³⁹ Osama bin Laden.

⁴⁰ Alexander Horne, Melanie Gower, and Joanna Dawson, Deportation of individuals who may face a risk of torture, House of Commons Library Standard Note SN/HA/4151, 10 February 2014.

⁴¹ App no 8139/09 (ECtHR, 17 January 2012).

⁴² Anti-terrorism, Crime and Security Act 2001.

⁴³ Prevention of Terrorism Act 2005.

⁴⁴ Othman (n 40) 7 8.

⁴⁵ ibid 9 10 53.

⁴⁶ David Bonner, 'If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on national security deportations' in Rob Dickinson and others (eds), Examining Critical Perspectives on Human Rights (Cambridge University Press 2012); John Cooper, 'Qatada, May, the Taxpayer and the Human Rights Act' (2014) 178 (39) Criminal Law & Justice Weekly 1.

⁴⁷ Horne, Gower, and Dawson (n 39) 19–20.

⁴⁸ Derek McGhee, 'Building a consensus on national security in Britain: terrorism, human rights, and core values - the Labour Government (a retrospective examination)' in Esther D Reed and Michael Dumper (eds), Civil Liberties, National Security and Prospects for Consensus (Cambridge University Press 2012).

⁴⁹ 2013 EWCA Civ 279.

⁵⁰ Robert Mendick, 'Jihadi John's friend cannot be deported from Britain' The Telegraph (London, 28 February 2015) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11442643/Jihadi-Johns-friend-cannot-be-deported-from-Britain.html> accessed 12 March 2015.

⁵¹ ibid.

⁵² 2014 EWCA Civ 1292.

⁵³ Gemma Mullin, 'Muslim man from Uganda who went to terror training camps in England can't be deported because it's against his human rights' The Daily Mail (London, 10 October 2014) <http://www.dailymail.co.uk/news/article-2788259/muslim-man-uganda-went-terror-training-camps-england-t-deported-s-against-human-rights.html> accessed 12 March 2015.

⁵⁴ ibid.

⁵⁵ W (Algeria) (FC) and BB (Algeria) (FC) and others v SSHD 2012 UKSC 8.

⁵⁶ 2004 EWCA Civ 1528.

⁵⁷ Robert Mendick, 'Convicted terror leader with link to Paris whom we cannot deport' The Telegraph (London, 17 January 2015) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11353243/Convicted-terror-leader-with-link-to-Paris-who-we-cannot-deport.html> accessed 12 March 2015.

⁵⁸ Wallach (n 24) 108–126.

⁵⁹ Conor Gearty, Can Human Rights Survive? (The Hamlyn Lectures, 1st edn, Cambridge University Press 2006).

⁶⁰ Kostakopoulou (n 13).

⁶¹ Federico Fabbrini, Fundamental Rights in Europe Challenges and Transformations in Comparative Perspective (OUP 2014).

⁶² Russell Hardin, ‘Civil Liberties in the Era of Mass Terrorism’ (2003) 8 The Journal of Ethics <http://www.nyu.edu/gsas/dept/politics/faculty/hardin/research/CivLiberties.pdf> accessed 01 March 2014; Aileen Kavanagh, 'Constitutionalism, Counterterrorism, and the Courts: Changes in the British Constitutional Landscape' (2011) 9 (1) International Journal of Constitutional Law <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T21493299183&randomNo=0.13176361467163689&csi=316455&docNo=1> accessed 22 February 2015.

⁶³ George Letsas, 'The Truth in Autonomous Concepts: How to Interpret the ECHR' (2004) 15 (2) EJIL <http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=16522663&site=ehost-live> accessed 23 February 2015.

⁶⁴ Elliott, ‘The War on Terror and the United Kingdom’s Constitution’ (n 9); Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill (2007-08, HL 172, HC 1077); Kavanagh (n 61).

⁶⁵ Mark Elliott, 'United Kingdom: The “war on terror,” U.K.-style—the detention and deportation of suspected terrorists' (2010) 8 (1) International Journal of Constitutional Law <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T20938008727&randomNo=0.6855667788994043&csi=316455&docNo=3> accessed 13 November 2014; Natasa Mavronicola and Francesco Messineo, 'Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK' (2013) 76(3) Modern Law Review <http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=87371913&site=ehost-live> accessed 9 November 2014.

⁶⁶ ECHR Article 15; Thomas Poole, 'Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case' (2005) 32(4) Journal of Law and Society <http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=18893507&site=ehost-live> accessed 12 November 2014.

⁶⁷ Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Council of Europe 2000); Alan Greene, 'Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights' (2011) 12 (10) German Law Journal <https://www.germanlawjournal.com/pdfs/Vol12-No10/PDF_Vol_12_No_10_1764-1785_Articles_Greene.pdf> accessed 27 February 2015.

⁶⁸ Daniel Thym, 'Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?' (2008) 57(1) The International and Comparative Law Quarterly <http://www.jstor.org/stable/20488191> accessed 11 November 2014.

⁶⁹ Emilie M Hafner-Burton, Laurence R Helfer, and Christopher J Fariss, ‘Emergency and Escape: Explaining Derogations from Human Rights Treaties’ (2011) 65 (4) International Organization <http://www.jstor.org/stable/23016230> accessed 8 December 2014.

⁷⁰ SSHD v AF and another and one other action 2009 UKHL 28.

⁷¹ ibid 106.

⁷² Joint Committee on Human Rights, Counter–Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In (2009–10, HL 86, HC 111).

⁷³ Rhonda Powell, 'Human Rights, Derogation and Anti-Terrorist Detention' (2006) 69 Saskatchewan Law Review 79.

⁷⁴ (1969) 12 YB 1.

⁷⁵ ibid.

⁷⁶ Frederick Cowell, 'Sovereignty and the Question of Derogation: An Analysis of Article 15 of the ECHR and the Absence of a Derogation Clause in the ACHPR' (2013) 1(1) Birkbeck Law Review <http://www.bbklr.org/uploads/1/4/5/4/14547218/135_cowell_f_sovereignty_and_the_question_of_derogation_an_analysis_of_article_15_of_the_echr_and_the_absence_of_a_derogation_clause_in_the_achpr.pdf> accessed 27 February 2015.

⁷⁷ (No. 3) App no 332/57 (ECtHR, 1 July 1961).

⁷⁸ App no 3455/05 (ECtHR, 19 February 2009).

⁷⁹ App nos 14553/89 and 14554/89 (ECtHR, 25 May 1993).

⁸⁰ App no 5029/71 (ECtHR, 6 September 1978).

⁸¹ Marie-Bénédicte Dembour, Who Believes in Human Right: Reflections on the European Convention (Cambridge University Press 2006).

⁸² Warbrick (n 19).

⁸³ Terrorism Prevention and Investigation Measures Act 2011.

⁸⁴ Ben Middleton, 'Terrorism Prevention and Investigation Measures: Constitutional Evolution, Not Revolution?' (2013) 77 (562) Journal of Criminal Law <https://www.lexisnexis.com/uk/legal/cart/cartDocRenderer.do?format=GNBFULL&returnToKey=20_T20938008727&randomNo=0.6855667788994043&csi=280328&docNo=20> accessed 10 November 2014.

⁸⁵ Farbey (n 30); David Anderson, Terrorism Prevention and Investigation Measures in 2013 (Crown copyright 2014); Home Office, Post-Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011 (Cm 8844, 2014).

⁸⁶ Hardin (n 61).

⁸⁷ Kostakopoulou (n 13).

⁸⁸ Herbert Lionel Adolphus Hart, The Concept of Law (2nd edn, Clarendon Press 1994).

⁸⁹ Patrick Devlin, The Enforcement of Morals (OUP 1965).

⁹⁰ Enders and Sandler (n 15).

⁹¹ Jollimore (n 14).

⁹² Gearty, ‘11 September 2001, Counter-Terrorism, and the Human Rights Act’ (n 12).

⁹³ Miller (n 22).

⁹⁴ Carmen Draghici, 'Terror and Beyond: Moral and Normative Dilemmas' (2009) 11 (4) International Studies Review, <http://www.jstor.org/stable/pdf/40389166.pdf> accessed 24 February 2015.

• Hochschule: University of London
• Veranstaltung: LLB (Hons)
• Autor: Suchana Chowdhury Suchi (Autor:in)
• Erscheinungsjahr: 2015
• Seiten: 77
• Katalognummer: V900019
• ISBN (eBook): 9783346229496
• ISBN (Buch): 9783346229502
• Sprache: Englisch
• Schlagworte: UK Terrorist; Legal Remedies; Struggle Against Terrorism; HRA 1998; Refuge in the UK; ECHR; Deportations; Foreign Terrorists; Exploiting HRA to obtain shelter; Terrorists‘ Civil Liberties; Derogations; Enhanced Counterterrorism