Abstract
This article examines the legal and ethical rationale for the deportation of ‘foreign criminals’ who have established their homes in the United Kingdom. It argues that provisions relating to automatic deportation constitute a second punishment that can be more accurately described as banishment. The human rights of those defined as ‘foreign criminals’ have been reduced to privileges that are easily withdrawn with reference to the ill-defined public interest. The ability to challenge deportation is then compromised by a non-suspensive appeal process that deliberately undermines the right to an effective remedy whilst further damaging private and family life. With reference to social membership and domicile theories of belonging, it is suggested that those who have made their lives in the UK and established their place and domicile here should be regarded as unconditional members of civil society. As such, they are entitled to equality of treatment in the criminal justice system and should be immune from punitive ‘crimmigration’ measures.
Highlights
In 2012 the Home Secretary Theresa May announced the introduction of a ‘really hostile environment’ for ‘illegal immigrants’
It is legally wrong with reference to fundamental human rights norms that are decoupled from formal citizenship status
The addition of the adverb ‘unduly’ raises an already elevated standard still higher.”32 If the child is not compelled to leave with the deported parent and has a good relationship with their other parent in the UK it will be difficult to make this argument. Cases, such as that of Mr Byndloss suggest that the Home Office may be routinely dismissing evidence of family life by placing an impossibly high threshold to determine that the relationship is ‘subsisting.’ This will become increasingly problematic when the family is separated by the non-suspensive appeal
Summary
In 2012 the Home Secretary Theresa May announced the introduction of a ‘really hostile environment’ for ‘illegal immigrants’. Recent amendments to the UK’s immigration rules and the introduction of s117C of the Nationality, Immigration and Asylum Act 2002 (hereafter ‘NIAA’) pre-load the decision-makers assessment of proportionality in favour of expulsion where the individual was sentenced to twelve months in prison, but make some allowances for arguments based on both private and family life (reflecting the UK’s obligations under Article 8 of the European Convention on Human rights). Given the argument that deportation of those permanent residents perceived to present a danger to an ill-defined public interest is both ethically and legally problematic, there is a further need to reflect on the underlying rationale of conditional membership. It is important to begin by contextualizing the ethical and legal arguments against deportation with reference to the most recent deportations and the legislative framework This provides an insight into the way that the ‘hostile environment’ has constructed certain types of foreigner in public discourse. It will be argued that the rights of ‘foreign criminals’ and their families are too reduced to privileges when balanced against the ill-defined public interest
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