Expulsion, national security and the European Convention
Colin J. Harvey
Subject: Immigration. Other related subjects: Human rights
Keywords: Asylum seekers; Deportation; Human rights; State security; Torture Legislation: European Convention on Human Rights 1950
Case: Chahal v United Kingdom (22414/93) (1997) 23 E.H.R.R. 413 (ECHR) *E.L.R. 626 As in its previous rulings on expulsion in Cruz Varas and Vilvarajah, the Court of Human Rights has held that the prohibition contained in Article 3 is equally absolute in cases which involve alleged national security considerations. When assessing whether substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of torture or inhuman or degrading treatment or punishment in the receiving country, the conduct of the individual, however undesirable or dangerous, is not a material consideration. The United Kingdom, in the event of the execution of a decision to deport the applicant, would be in breach of Article 3. In this respect the Court's judgment has confirmed the importance of the Convention for the protection of asylum seekers and deportees in Europe, indeed, it now provides a guarantee which is of wider scope than that contained in the 1951 Convention relating to the Status of Refugees. The judgment also offers valuable guidance on the protection offered by the Convention in deportation cases when national security issues are raised. The Court also held that Article 5(4) had been breached. Further to this, the Court has held that in national security cases judicial review and the advisory panel procedure in the United Kingdom are ineffective remedies for Article 3 complaints, because the decision to deport should be reviewed solely with reference to the question of risk to the applicant. Eur. Court H.R., Chahal v. United Kingdom, Judgment of November 15, 1996; (1997) 23 E.H.R.R. 413.
The four applicants are all members of the same family of Sikhs. The political backdrop to the case lay in the conflict in the Punjab which had escalated in the mid-1980s, and the first applicant's alleged activities in the United Kingdom in relation to that conflict. The family had lived in the United Kingdom since the 1970s. In 1984 they travelled to the Punjab to visit relatives. While there Karamjit Chahal, the first applicant, was baptised and began to adhere to the tenets of orthodox Sikhism. He also became involved in passive resistance in support of independence for the Punjab. He contended that during the visit he was arrested by the police, and, while in detention, was subjected to severe illtreatment. The family returned to the United Kingdom later in May 1984. Following his return, Chahal emerged as a respected political figure within the Sikh community. In August 1984, a recognised leader of Sikh orthodoxy, Jasbir Singh Rode, visited the United *E.L.R. 627 Kingdom, and Chahal toured the country with him. Rode was, however, subsequently excluded from the United Kingdom because of his public advocacy of violent methods for the promotion of Punjab autonomy. After returning to the Punjab, Rode was detained. Following this period of detention his political views changed and he opted instead for peaceful constitutional reform. Such a position was unacceptable to many Sikhs, and it caused a split in the International Sikh Youth Federation in the United Kingdom. After the split, Chahal became involved with a faction which continued to support the campaign for an independent homeland. In 1985 Chahal was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 in relation to his alleged involvement in an assassination attempt on the Indian Prime Minister, and in 1986 he was arrested twice in connection with a variety of alleged conspiracies against political opponents. In the same year he was charged and convicted of assault and affray; convictions which were...
The Hollow Hope as a Pioneer in Political Science Research
Many books pioneer certain ways of analyzing topics, yet it is very rare that a first
attempt can demonstrate such a great amount of success. Gerald Rosenberg’s (1991) Hollow
Hope is such a book. Since the early 1950s, political scientists taking a political or procedural
approach to the study of law and courts had asked, according to Jack Peltason (2000): “What
happens after the lawsuit is over?” Rather than focusing almost entirely on the court decision
itself, as in traditional constitutional law, political scientists slowly began to broaden their
inquiry to include the continuing political struggle following court decisions. Even a brief
examination of this topic makes it clear that court decisions themselves are only one stage of the
continuing political, policy-making, process. Through Rosenberg’s empirical research as
illustrated in Hollow Hope, it is clear that his theories can be applied in many instances
successfully to understand the effect the court has on society.
Political scientists had long attempted to study the interaction of law and social change in
hope to answer the ultimate questions of the effect law has on society. Robert Dahl (1991) first
asked “Can law, particularly court made law, bring about social change?” However, it was
Rosenberg who took this...
...1. Examine, with reference to relevant case law, the extent to which it is true to say that in the event of a breach of contract the injured party can recover compensation for all of the consequences, both financial and non-financial, that result from the breach.
The following question asks us to what extent it is right to say that in the event of breach of contract the injured party can recover compensation for all of the consequences, both financial and non-financial. In this essay, I will thoroughly explain what breach of contract is, and then answer the topic question. I will back up my answer by applying it to relevant case laws.
A contract is a legally enforceable agreement between two or more parties with mutual obligations. A contract has not been performed until both parties have carried out all of their obligations. If one of the parties does not fulfil its contractual duty, it will result in a breach of contract. The remedy at law for breach of contract is compensation for any damages that were incurred as a result of the breach, and that includes both financial and non-financial losses caused to the injured party (Shavell, 1980). However, to what extent it is true to say that the injured party can recover financial, and non financial losses? To answer this question I will explain the possible remedies in regards to the breach of contract, when it comes to damages and recovering compensation.
...The Speluncean Explorers Case is Lon L fuller’s, it was first published in the Harvard Lawreview in 1949, the focus of this theoretical case that I have gathered is to elucidate the opinions and theories of different judges. Taking into account these sagacious views, I have been able to come up with an evaluation of my own.
The main question we’re dealing with out here is that of executive clemency, i.e. mercy or leniency; especially, the power of the President or a governor to pardon a criminal or commute a criminal sentence (Black’s Law Dictionary). According to Justice Truepenny, the trial judge had followed an equitable course of action, wherein he awarded them the death sentence. According to Justice Truepenny and Justice Keen, and this is a point I concur with is that the law is not ambiguous and must be exempted from interpretation and subjectivity.
The Statute states that, “Whoever shall willfully take the life of another shall be punished by death,” according to the facts of the case Whetmore and the survivors deliberated for hours on the matter before they willfully and unanimously decided the course of action. Thus, directly applying the statute, the judgement went against the survivors and they were awarded the death penalty. I disagree with Justice Foster’s argument in which he supports the natural school of jurisprudence, according to him the survivors were separated from the State by rock walls, and...
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 21
ABOVE THE LAW: RESEARCH METHODS, ETHICS AND THE LAW OF PRIVILEGE
Geoffrey R. Stone
THE LAW SCHOOL THE UNIVERSITY OF CHICAGO
This paper can be downloaded without charge at: The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=XXXXXX
Above the Law: Research Methods, Ethics and theLaw of Privilege
Geoffrey R. Stone*
In Anticipating Law, Palys and Lowman set forth the rationale for a “researcher-participant privilege” and advise scholars how best to preserve the confidentiality of their research in the face of a legal system that has not looked kindly on such a privilege. Although I am inclined to agree with Palys and Lowman that a researcher-participant privilege would, on balance, be beneficial, the case for the privilege is hardly self-evident. Moreover, the advice Palys and Lowman offer researchers in the absence of such a privilege is, in my judgment, unwise. I will briefly address both of these points.
The Researcher-Participant Privilege
Most of the rules of evidence, like most of the “rules” of research, are designed to get at the truth. For the most part, the rules of evidence exclude “unreliable” information from the consideration of the trier of fact. Privileges, however, are an exception. Privileges generally exclude reliable...
Juanita is a Colombian citizen which is not a member state of European Union (EU). Consequently, she does not have any right on her own status under EuropeanLaw (EU). However she is married to Roger who is a British citizen. As a British citizen Roger is also citizen of the European Union. Article 20(1) Treaty on the Functioning of the European Union (TFEU). Juanita can claim certain rights under EUlaw as Roger’s spouse. So, Roger’s status and rights need to be determined.
As a European Union citizen Roger can move to any member states of EU and take up employment. Article 45 of Treaty on the Functioning of the European Union (TFEU) provides, “freedom of movement for workers shall be secured within the Union”. In “Lawrie-Blum” the European Court has laid down three essential characteristics for a European citizen to be recognised as a worker, which are: S/he is providing some type of service, under the direction of another person and in return for remuneration. We can assume from the fact that he is working full time for the University. From the given fact we can say that Roger fulfils these criteria and therefore he is a worker.
Article 7(2) of the Directive 2004/38 provides that worker’s family members, irrespective of their nationality have the right to accompanying or join with the worker in the host country if...
...and the E.U. on the implementation of an E.U. directive.
The European Communities Act of 1972 served to make all European Community Treaties directly applicable in the British legal system.1 This is best captured in Lord Denning’s description of the Act: ‘any rights or obligations created by the Treaty… legal effect in England without more ado’.2
It is in this context that E.U. law has traditionally always taking precedence over domesticlaw. This notion of the supremacy isn’t specified in any of the Treaties, but rather it emerged as a legal principle from the European Court of Justice (ECJ) in its 1964 landmark ruling on the Falminio Costa v ENEL case3. The court held that due to the particular nature of Community (now Union) legal order that domestic provisions of Member States must give way to Europeanlaw. The Court also upheld the precedence of secondary legislation, which would encompass the E.U.’s Fossil Fuels Directive, on similar grounds.4
Furthermore, national powers have been further restricted by the subsequent ECJ ruling on the 1978 Simmenthal II case in which Member States were duty-bound to avoid adopting any national measure which conflicts with Union law. The Court specified that:
“every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on...
...of Community law………………………………………………………………...3
Interpretation of Community law…………………………………………………………….3
Non-discrimination on the basis of nationality/gender as fundamental principle………...4
Principle of proportionality…………………………………………………………………...5
Human rights in the European Union………………………………………………………..6
The direct effect of Europeanlaw…………………………………………………………….7
General Principles of European Union Law
Today’s well-known Union of 27 member states of Europe was created in early 1950s by the chain of events. Early unions such as European Coal and Steel Community (ECSC), European Economic Community (EEC) and the Atomic Energy Community (Euratom) have made the foundation of the developed European Union. European Union is an economic and political entity located in Europe, it is also fact that EU is a huge market. EU was created by the treaty of European Union in 1993. The EU law is supranational law, it is supreme to the national laws of the member states and not limited by any national laws.
Concept of new legal order and its effect on sovereignty of Member States
The supremacy of EU law over the national...
...supremacy of EU law and the UK’s statutory recognition of human rights. We should no longer talk about this irrelevant doctrine.’
In order to make an evaluation of the accuracy of this statement there are several areas to consider. As an outline, this essay will consider the UK’s sovereignty in the context of European Union law and Human Rights Act 1998. I will discuss these arguments, for and against the irrelevance of this doctrine proving which the accuracy of above statement. However, beforehand considering each of these issues, it is important to explain the meaning of parliamentary sovereignty, and its historical development.
Sovereignty implies that politics have ultimate authority. In Parliamentary sovereignty it has been said that it is the key element of a British Constitution. In other words, Parliament has absolute and ultimate authority and is the supreme law-making body in the United Kingdom. Due to the fact that it is the only body in the country that can make, amend and unmake the law and no other institution is able to override its decisions1.
In order to understand the way in which the UK reaches its position in recent days, it is crucial to understand the historical concept of this doctrine. The origin begins with an Case of Proclamation (1611)2, in which Lord Coke held that the Crown do not has prerogative powers to modified or changed the common law or statute, or...