Interplay Between Immigration Law

Background

Over the past few decades, immigration has come to be recognised in the UK as one of the important areas of political and public discourse and such discourse is also seen to have impact on the immigration law and policy. Human rights of the immigrants is one of the important areas of concern within the discourse on immigration particularly because immigration law and policy can have impact on human rights and vice versa; indeed, one of the themes that have impacted immigration law include civil liberties. The significance of immigration as a topic of public discourse with ramifications for law and policy cannot be emphasised on enough as it would be well to recall that even in the Brexit referendum, the issue of immigration came to acquire significance. A research study found that immigration issue was one of the major deciding factors for the British voters and many voters indicated their preference for a more sovereign Parliament on the issue of immigration law and policy and the need to free the latter from the control of the EU law. Public interest in immigration policy can lead to the making of law and policy that is seen to be more restrictive of immigration; Clayton argues that ‘public opinion’ remains a critical factor in the formulation of immigration law and policy. At the same time, the development of immigration policy is seen to be a state prerogative. On the other hand, as long as the UK is a member of the European Convention of Human Rights (ECHR), it is also bound by human rights jurisprudence that is external to the UK but binds the UK and its courts. Therefore, even though there may be public support for stricter and more restrictive immigration law and policy and government will to make such law and policy, there may be some restriction on how far the law can breach the rights of the immigrants as protected under the ECHR. This provides an area of interest to explore how the ECHR interacts with the immigration law and policy in the UK and makes this a relevant topic of research.

Literature review

Although the topic of immigration as discourse has political, social, and legal significance, in this HRM dissertation help, in this dissertation, the focus is on the legal aspects of the immigration law and policy in particular with reference to human rights. The UK is a member of the ECHR and has accepted the mandatory jurisdiction of the European Court of Human Rights (ECtHR). This means that the jurisprudence developed by this institution related to immigrant rights is also applicable to the UK. Thus, it can be noted that despite immigration law being the prerogative of the state, there is an impact of the ECHR and the ECtHR jurisprudence on how this law and policy area develops in the UK or is affected by it. The more important aspects of the ECHR that are relevant to this research study are Article 8 and Article 3. Article 8 relates to the private and family life of an individual and Article 3 seeks to protect individuals against cruel and degrading treatment. One of the areas where the UK may see some restriction on its own powers to make immigration law and policy is with respect to deportation of illegal immigrants. ECtHR has sought to provide some restrictions on such powers of the state to prevent deportation of immigrants to countries where they may face persecution; Chahal case is relevant here as in this case, the European Commission

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1. Vaughan Bevan, The Development of British Immigration Law (Croom Helm 1986).
2. Vernon Bogdanor, ‘The EU Referendum Shows How the Sovereignty of Britain's People can now Trump its Parliament’, The Telegraph (June 26, 2016), accessed
3. David Torrance, EU Referendum 2016: A Guide for Voters (Luath Press 2016).
4. Gina Clayton, Textbook on Immigration and Asylum Law (Oxford University Press 2016) 3.
5. Ibid.

prevented UK from deporting the applicant to India on the ground that the applicant may be subjected to treatment that would breach Article 3 rights. The Human Rights Act 1998 is also relevant to the discussion on how ECHR interacts with the immigration law and policy in the UK. The Human Rights Act 1998 was enacted to implement the ECHR rights by giving them the status of statutory rights, which means that the rights in the ECHR are not just international law for the UK, but are part of the statutory rights of the UK. Provisions in the Act include duty of the courts to interpret the domestic law in line with the ECHR (section 3), power of the court to declare incompatibility between the ECHR and the domestic law (section 4), and the duty of the public authorities to act in accordance with the rights protected under the law (section 6). This creates the space for interaction between the ECHR and the immigration law and policy as the latter has to be aligned with the former. It may also be noted that the courts in the UK have generally been wary of diluting ECtHR jurisprudence; reference may be made to the decision of the House of Lords in Ullah where it observed that the national courts must refrain from diluting or weakening the effect of the Strasbourg case law without strong reason. Considering the application of the ECHR to the UK and the enactment of the Human Rights Act 1998, it becomes relevant to consider how the provisions of the immigration law and policy interact with and impact ECHR rights of the immigrants. The Brexit will not as of now impact the application of the ECHR because the membership of the Union is not linked to the membership of the ECHR and the White Paper Legislating for the United Kingdom’s withdrawal from the European Union has already clarified that there is no intention of the government to leave the membership of the ECHR as well. This means that irrespective of the Brexit, the UK is still a member of the ECHR and the latter is still relevant to the interpretation of rights in the UK. This also means that the jurisprudence of the ECtHR remains relevant to the way in which the rights of the immigrants may be impacted by the ECHR. Finally, preliminary literature review has suggested that there are a number of cases in which the ECtHR has protected different aspects of immigrant rights including right to life, freedom from torture and right to family life. This has impact on any rules made with relevance to the following: deportation to countries where immigrant may be tortured; separation of immigrant from family as this would be breach of the private and family life; and even deportation of immigrant who has medical problems that will not be attended to in the country where they are being deported. Literature review has also revealed that decisions of the ECtHR have been generally followed in the UK courts; for instance, while interpreting section 84(1) of the Nationality, Immigration and Asylum Act 2002, the House of Lords held that it should be interpreted widely so that the family unit is treated as a whole for protecting the rights under Article 8 in line with the ECtHR jurisprudence. The preliminary literature review suggests that there is an interaction between the ECHR and the immigration law and policy of the UK, which makes the topic of research appropriate for further exploration. There is substantial amount of jurisprudence and literature that developed over the

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6. Chahal v United Kingdom (1996) 23 EHRR 413.
7. Alastair Mowbray, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford: Oxford University Press 2012).
8. R (Ullah) v Special Adjudicator [2004] UKHL 26.
9. Department for Exiting the European Union, ‘Legislating for the United Kingdom’s Withdrawal from the European Union’ (15 May 2017) accessed < https://www.gov.uk/government/publications/the-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union>
10. Abu Qatada v United Kingdom (2012) 55 EHRR 1.
11. Maslov v Austria [2008] ECHR 546.
12. D v United Kingdom (1997) 24 EHRR 423.
13. Beoku-Betts v SSHD [2008] UKHL 39.
years related to the rights of the immigrants and this can be used to assess the ways in which immigration law and policy in the UK interacts with the ECHR.

Aim and Objectives

Aim: The aim of this dissertation is to explore and analyse the interaction between the ECHR and the immigration law and policy of England and Wales.

Objectives: The objective of this dissertation is to evaluate how ECHR impacts the immigration law and policy of England and Wales and makes it more aligned to human rights values and how the UK courts respond to the ECHR and ECtHR jurisprudence. Another objective of this research is to assess where there are gaps in the immigration law and policy with respect to human rights values.

Research Questions

Aim: The aim of this dissertation is to explore and analyse the interaction between the ECHR and the immigration law and policy of England and Wales.

This dissertation seeks to answer two research questions: First, what are the provisions of the current immigrant law in England and Wales which have impact on the human rights of the immigrants? Second, how do immigration law provisions impact or are impacted by the ECHR? The focus of this dissertation is to explore the impact of immigration law and policy on the human rights of the immigrants and in particular to analyse the ways in which the immigration law and policy interacts with the provisions of the European Convention of Human Rights (ECHR). The above questions are raised because ECHR is applicable to England and Wales and the jurisprudence developed by the European Court of Human Rights (ECtHR) does impact the ways in which immigration law and policy is implemented in the country. To put this in context, a brief discussion on ECHR and its impact on the law and policy making in England and Wales is necessary at the outset



Research methods

The investigation for this research will be conducted with the descriptive research method. Descriptive research method inquiries into the way things are and reports the findings of the same. The present research will involve an abstract descriptive research as it is focussed on understanding the ways in which immigration law and policy interacts with the ECHR. The research will be doctrinal in nature so that the focus of this research will be on law and to identify and analyse factual and legal issues. Doctrinal research relies on data collected from court judgments and statutes for explaining the law, and also uses interpretative tools to evaluate the law and also make relevant recommendations for the law. As part of the objective of this research is to explore the gaps in the law with respect to human rights aspects, doctrinal legal research will be appropriate. In general, the research comes within the scope and tradition of the qualitative legal research as it is non-numerical and relies on qualitative data. This means that the researcher can start the research with a set of research questions and structure a research design based on qualitative methods to

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14. David De Vaus, Surveys in social research (6th edition, Routledge 2013) 18.
15. Ibid.
16. Mike McConville and Wing Hong Chui, ‘Introduction and Overview’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007).
17. Ibid, p.4.
18. Ian Dobinson and Francis Johns, ‘Qualitative Legal Research’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007) 17.
collect and analyse data. In this research study the data will be sourced from both primary sources and secondary sources; primary sources are the judgments and the legislations and secondary sources are books, journals, articles, institutional reports and news reports.

Dissertation structure

The first chapter of this dissertation is the introductory chapter which will define the background of the study. The second chapter of this dissertation will be the literature review. The third chapter will relate to an analysis of the interaction of the law and policy of immigration in England and Wales with the ECHR. The last chapter will conclude the dissertation with answers to the research questions based on the findings of these two chapters.

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19. JW Willis and M Jost, Foundations of Qualitative Research: Interpretive and Critical Approaches (Thousand Oaks: Sage 2007).

Bibliography

Books

Bevan V, The Development of British Immigration Law (Croom Helm 1986). Clayton G, Textbook on Immigration and Asylum Law (Oxford University Press 2016). De Vaus A, Surveys in social research (6th edition, Routledge 2013). Dobinson I and Johns F, ‘Qualitative Legal Research’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007). McConville M and Chui WH, ‘Introduction and Overview’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007). Mowbray A, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford: Oxford University Press 2012). Torrance D, EU Referendum 2016: A Guide for Voters (Luath Press 2016). Willis JW and Jost M, Foundations of Qualitative Research: Interpretive and Critical Approaches (Thousand Oaks: Sage 2007).

Reports

Department for Exiting the European Union, ‘Legislating for the United Kingdom’s Withdrawal from the European Union’ (15 May 2017) accessed < https://www.gov.uk/government/publications/the-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union>

Websites

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