The London-based research group Corporate Watch has just published a 20-page briefing examining the lawfulness the UK’s mass deportation charter flights. Part of a forthcoming report by Corporate Watch and the campaign group Stop Deportations, it aims to provide campaigners and legal practitioners with some arguments and tools with which to challenge the legality of these flights. This post provides a short summary of the main arguments and findings.
The main focus of the briefing is Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits the “collective expulsion of aliens.”
Since the 1975 case of Henning Becker v. Denmark, the ECtHR has adopted a definition of the “collective expulsion of aliens” to mean “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.”
The first successful Protocol No. 4 case in the ECtHR was the 2002 case of Čonka v. Belgium. Significantly, the judgment specified the “factors that may reinforce the doubt that an expulsion might be collective.” These included:
- announcements or instructions by the authorities prior to the deportation that there would be such an operation
- deportees being rounded up at the same time and served with deportation orders couched in identical terms
- deportees finding it very difficult to contact a lawyer or not having their asylum procedures completed.
The briefing asserts that there is plenty of evidence that each of these five factors have been repeatedly breached by charter flight deportations from the UK, citing actual or possible examples on each point.
Another issue is that the UK has signed but not ratified Protocol No. 4. However, the briefing traces back the UK government’s reservations to concerns over nationals of dependent territories (former colonies) entering to and remaining in the UK, rather than mass expulsions. Shameful as this is, it therefore suggests that the government should be pressurised to ratify the Protocol with reservations similar to those made when ratifying the International Covenant on Civil and Political Rights.
But even without ratifying Protocol No. 4, the briefing examines various procedural aspects of the UK’s mass deportation flights that could be used to challenge them more systematically. For instance, the fact that judicial review applications no longer lead to an automatic deferral of removal because of the “special arrangements” surrounding charter flights – i.e. they do not have a suspensive effect – coupled with the recent cuts to legal aid introduced with the LASPO Act 2012, which have made it practically impossible for most people to seek a judicial review of their removal decision, mean that charter flight deportees are often not provided with an effective remedy within the meaning of Article 13 of the ECHR.
The briefing discusses many ECtHR cases that have dealt with specific aspects of mass deportations or made significant findings in this regard. Even though some of the instruments relied upon in these cases have not been incorporated into domestic law through the Human Rights Act 1998, it is pointed out that Section 2(1) of this Act requires the UK courts to “take into account” the ECtHR’s decisions when determining a question that has arisen in connection with a Convention right, especially when the ECtHR has “clear and constant jurisprudence” on that matter. The review provided by the briefing shows beyond doubt that the ECtHR case law on collective expulsions is “clear and constant” enough for UK courts to take it into account.
To use any of the arguments discussed in the briefing, one would obviously need concrete, systematic evidence. The briefing thus concludes with recommendations that legal practitioners and campaigners should collaborate more on understanding and gathering evidence on each of these arguments with the aim of launching more systematic legal challenges against mass deportation charter flights from the UK.