In a wide-ranging interview with the Sunday Telegraph, the Prime Minister has previewed a new 'deport first, appeal second' approach to deportation cases:
… in specific response to the never-ending Abu Qatada case, and vexatious use of the European Convention on Human Rights, the PM is looking at a new and radical option. "I am fed up with seeing suspected terrorists play the system with numerous appeals. That's why I'm keen to move to a policy where we deport first, and suspects can appeal later." Under this new arrangement, deportees would only be able to appeal against the decision while still in this country – thus suspending their removal – if they faced "".
It seems to me that this approach is anchored in last month's European Court of Human Rights (Grand Chamber) decision in DE SOUZA RIBEIRO v. FRANCE – 22689/07 - HEJUD [2012] ECHR 2066 (summary here). See in particular paragraphs 82
Where a complaint concerns allegations that the person's expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005-III), independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari, cited above, § 50) and reasonable promptness (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Gebremedhin [Gaberamadhien], cited above, § 66, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, 23 February 2012). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the Convention. Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (see Čonka, cited above, §§ 81-83, and Hirsi Jamaa and Others, cited above, § 206).
By contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien's right to respect for his private and family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see M. and Others v. Bulgaria, no. 41416/08, §§ 122-132, 26 July 2011, and, mutatis mutandis, Al-Nashif v. Bulgaria, no. 50963/99, § 133, 20 June 2002).
Somebody has clearly picked up on the fact that the European Court has stated that only Article 3 ECHR (protection from inhuman or degrading treatment) cases require that the deportation be suspended before it is resolved. By contrast, Article 8 (private and family life) challenges do not require automatic suspension of the deportation process, but does require "the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality".
Does the need for an appropriate "domestic" forum mean that the appeal needs to take place in the state which is doing the deporting, or for the appellant to be in the deporting state even if the appeal is heard there? I don't think so; the criticism of the Grand Chamber in De Souza was that the applicant was deported within 50 minutes of him lodging a Judicial Review, that is before the administrative court judge even had the opportunity to decide whether to suspend his deportation or not. So there was no judicial scrutiny at all. See para 95:
While the urgent proceedings could in theory have been an opportunity for the court to examine the applicant's arguments and, if necessary, to stay the execution of the removal order, any possibility of that actually happening was extinguished because of the excessively short time between his application to the court and the execution of the removal order. In fact, the urgent-applications judge was powerless to do anything but declare the application devoid of purpose. So the applicant was deported solely on the basis of the decision of the administrative authority.
Consequently, in the circumstances of the present case the Court considers that the haste with which the removal order was executed had the effect of rendering the available remedies ineffective in practice and therefore inaccessible. While the Court is aware of the importance of swift access to a remedy, speed should not go so far as to constitute an obstacle or unjustified hindrance to making use of it, or take priority over its practical effectiveness.
The Court also makes clear this is a fact-sensitive judgment and in fact states have a fairly wide range of options as to how to secure an effective remedy and "protect… against arbitrary expulsion":
However, while States are afforded some discretion as to the manner in which they conform to their obligations under Article 13 of the Convention, that discretion must not result, as in the present case, in an applicant being denied access in practice to the minimum procedural safeguards needed to protect him against arbitrary expulsion.
Lastly, concerning the danger of overloading the courts and adversely affecting the proper administration of justice in French Guiana, the Court reiterates that, as with Article 6 of the Convention, Article 13 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet its requirements. In that connection, the importance of Article 13 for preserving the subsidiary nature of the Convention system must be stressed (see, mutatis mutandis, Kudła, cited above, § 152, and Čonka, cited above, § 84).
One point to note is that De Souza is about Article 8, which is specifically contrasted with Article 3 cases. Both of the really controversial recent cases involving suspected terrorists (Abu Hamza to the USA and Abu Qatada to Jordan) were Article 3 challenges to extradition requests, which means the result is likely to have been the same under the new "serious, irreversible harm". Abu Qatada has latterly become an Article 6 (right to a fair trial) case, but I doubt that would have made any difference. He still would be here under the proposed changes.
It should also be noted that under the present rules, not all immigration decisions give rise to an 'in-country' (i.e. within the UK) right of appeal. But some do so automatically, such as a challenge to deportation unless it is certified by the Secretary of State as being clearly unfounded or based on arguments which could have been raised at an earlier appeal. Generally, an Article 8 challenge to a deportation decision does not necessary suspend removal directions but in practice often will do so – see page 12 of this UKBA guidance.
So the new proposals will probably have the effect of allowing UKBA to go ahead with the deportation in more cases where an urgent Judicial Review on Article 8 grounds has been lodged, perhaps lowering the bar for suspension of the deportation process from a claim being "clearly unfounded" to there being "no real risk of serious, irreversible harm" . Will it work? It seems to me that the decision of the Grand Chamber may help, but won't necessarily make any difference some of the really controversial cases, so the effect of the changes shouldn't be overstated. Thoughts?