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Might I be subject to deportation?

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Introduction

Deportation is the act of removing someone from the country in which he or she currently lives, because it has been determined that he/she has no right to remain there.   Sometimes deportation follows a court finding that the individual has committed a serious criminal offence, but it is more commonly used as a means of enforcement of a country’s laws on immigration.

Deportation is a serious measure which has a severe impact on the individual concerned, and often on their family or community. Therefore in most countries there is a clearly defined process for determining whether an individual should be deported, and for assessing the validity of any arguments which the individual may have for being allowed to remain.

If you have been informed of an application for a deportation order in respect of you or of someone in your family or community, you should seek legal advice immediately.  A number of organisations offer free advice on deportation applications.   We outline below the main grounds on which you may be able to fight an application for deportation.

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Grounds for challenging your deportation

A. If you have an ongoing asylum claim/appeal

Have you applied for recognition of your refugee status?  If so, you should be aware that you should not be deported if your asylum application is pending. Please see the part of this guide which deals with refugee status and asylum claims.

B. Human rights

You may be able to resist deportation if you can successfully demonstrate that one of more of the following human rights applies to you and that deportation would violate it.

i. Right to family life

If you are  facing deportation, your spouse of civil partner and/or child (if under 18) may also be liable to deportation unless they have a settled status in your host country. In some situations, your child may have been born and raised in the host country, and you would be able to argue that it would be ‘unduly harsh’ for your child to have to relocate to the destination country.

Pursuant to Article 3(1) of the United Nations Convention on the Rights of the Child, public officials have a duty when making decision concerning children to safeguard and promote the welfare of children.

To make a claim to remain in your host country based on the best interests of your child, you will usually need to meet a set of criteria. This will be governed by national law, but it will often include demonstrating that the life of the child has established in the country you are currently in and it would not be reasonable to expect the child to leave.

ii. Torture or ill-treatment

Definition

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is the internationally agreed legal definition of torture:

“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Article 3 of UNCAT reads:

(1) No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

(2)For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The right not to be subjected to torture is non-derogable and absolute, which means that there are no accepted justifications for torture. Nations cannot use to justify the use of torture based on necessity, national emergency, public order which are often used by states.

Scope

Non-state actors

Traditionally, international law confined itself to consider allegations of risks emanating from the States’ authorities. However, now it is accepted that the absolute nature of the prohibition and States will be violating its treaty obligation by deporting to a place where the person will be subjected to torture by Non-State Actors. Such ‘non-state actors’ may be groups within one’s country of origin.

Exclusionary rule

It is an internationally agreed position that the evidence obtained by torture should not be admissible in any judicial proceeding. This rule is commonly referred to as the exclusionary rule. Article 15 of the UNCAT provides for this rule:

“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

Protection

If you fear you may be subjected to torture on return from the country which intended to deport you or you fear that evidence obtained through torture will be used in a trial against you, you may be eligible for Convention Against Torture Protection. This protection includes a ban on deportation in such circumstances, and you will be able to challenge your deportation in court.

Please note that this protection will also be found in national and regional human rights instruments.

iii. Capital punishment

The death penalty is still practiced by some states. However, The Secretary-General of the Human Rights Council in his report on capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, found that the marked trend towards abolition and restriction of the use of capital punishment in most countries continues.

The European Convention of Human Rights, under Protocol 13, specifically prohibits the use of the death penalty in member states.

However, this prohibition also flows from the prohibition of torture and cruel inhuman treatment from Article 3 of the European Convention of Human Rights.

Example from the European Court of Human Rights: In Soering v. the United Kingdom, the Court found that the applicant’s extradition to the United States would expose him to a real risk of treatment contrary to Article 3 of the Convention. In reaching that conclusion, the Court had regard to the very long period of time people usually spent on death row in extreme conditions in the United States with an ever mounting anguish of waiting to be executed, as well as to the personal circumstances of the applicant, especially his age and mental state at the time of the offence.

In terms of international law, in his 2009 report, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, concluded that the prohibition of corporal punishment had evolved to the point that it was not considered a direct assault in the dignity of a person and should be qualified by all relevant human rights bodies as cruel, inhuman or degrading punishment.

iv. Non-refoulement

Non-refoulement is a concept which prohibits States from returning a refugee to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality of a particular social group, or political opinion.

1951 United Nations Convention relating to the Status of refugees, which, in Article 33(1), provides that

“1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

On the regional level the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 gives expression in binding form to a number of important principles relating to asylum, including the principle of non-refoulement. According to Article III(3) :

“No person may be subjected by a member State to measures such as rejection at the frontier, return or expulsion, which should compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article 1, paragraphs 1 and 2.

The principle of non-refoulement extends to prohibiting states from transferring a sentenced person with refugee status whose fundamental human rights would be threatened by transferring him or her to another country in order to serve the sentence.

C. Statelessness

“Stateless person” means a person who is not considered as a national by any State under the operation of its law.” Statelessness cannot be a form of punishment, discrimination, or result of a suspected crime or conviction. If you are considered stateless, or are at risk of becoming stateless if deported, then you can challenge your deportation order on this basis.

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Special categories of prisoners

A. Prisoners of War

Prisoners of war are people who are held in custody by a state during, and sometimes after, an armed conflict with another state.  In principle prisoners of war must be returned to their state of origin promptly upon the cessation of armed hostilities. However, special rules apply in certain circumstances. We address these below.

B. Terrorism offences

In their fight against terrorism, some States have conducted activities which infringe basic human rights, such as the prohibition or torture and the right to a fair trial. This includes, extending the maximum limit of pre-charge detention, and used evidence such as confession obtained through torture and ill-treatment.

Several international conventions address the issue of transfers of prisoners in the context of terrorism. Please see the resource bank for further references.

Various guarantees must be provided to the person being transferred, such as procedural safeguard to protect the rights of the individuals involved. This includes, the prohibition from expelling or transferring a prisoner if that may expose him or her to the danger or torture, inhuman or degrading treatment or punishment.

In this context, some States have made use of diplomatic assurances, memorandums of understanding to justify the return or transfer of individuals suspected of terrorist activity to countries where they may face a real risk of torture or other serious human rights abuses. Such assurances must be thoroughly assessed before being relied upon.

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How can I take legal action?

A. General considerations

You have the right to appeal a deportation order against you. In some jurisdictions, you will be entitled to free legal advice in such circumstances. However, in others, this may not be available. In this case, you should seek the support of local non-governmental organisations or similar organisation who may be able to provide you with the necessary information and support.

If you have refugee-status or are likely to face ill-treatment on return, you are more likely to receive legal support as deportation would be in grave violation of international law.

B. Standing

You can only take a case to court when you have the right or the “standing” to do so. Rules on standing will vary from country to country. In the case of challenging deportation orders, the individual concerned, and their legal representatives will have standing.

Administrative proceedings often contain strict requirements on standing. Usually victims will have standing to bring proceedings, however, organisations such as NGOs may not have standing. Instead, such organisations may bring proceedings on your behalf.

C. Challenging deportation order on human rights grounds

Challenging a deportation order will firstly be done in an immigration tribunal. However, where you have exhausted your appeal rights in the immigration tribunal, you will usually need to seek a decision in the administrative courts, seeking an order that the decision of the immigration tribunal was unlawful.

To be successful in challenging your deportation order, you must establish that it is “more likely than not” that you will be tortured or subjected to mistreatment if you are returned. The immigration judge will look at evidence such as:

  1. Your testimony;
  2. Evidence of past torture you may have experienced;
  • Medical or independent evidence to support you claim, including whether the torture has had any after effects.
  1. Evidence that you could relocate to a part of the country where you are not likely to be tortured;
  2. Evidence of gross, flagrant, or mass violations of human rights in your country, and;
  3. Other relevant information about conditions in your home country.

You should be aware that to bring proceedings in the administrative courts is time consuming, complex and often expensive. Furthermore, administrative proceedings often contain strict requirements on standing, time limits and you may need to apply for permission to bring a claim. You will therefore will benefit from seeking legal representation.

D. Seeking an injunction – emergency interim measure

Certain courts, such as the European Court of Human Rights, under Rule 29,  have the power to grant interim measures where there is an imminent risk of irreparable harm. These measures usually consist in a suspension of the applicant’s expulsion or extradition for as long as the case is being considered.

The most typical case is where, if the deportation or extradition takes place, the applicant would fear for their lives or would face ill-treatment (prohibition of torture or inhuman or degrading treatment).

F.G. v. Sweden (March 2016) – Grand Chamber

The case concerned an an opponent of the Belarusian regime who had experienced detention and ill-treatment before fleeing. He applied for asylum in France, but it was denied. The applicant and his family alleged that if they were returned to Belarus they would risk imprisonment and ill-treatment. The Court decided to apply Rule 39 of the Rules of Court, requesting the French Government to refrain from deporting the applicants pending the outcome of the proceedings before it. The application of Rule 39 was lifted when the Court’s judgment finding that the implementation of the deportation order against the applicants would give rise to a violation of Article 3 of the Convention became final.

 

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Procedural challenges when taking legal action

A. Lack of information and resources available

Appealing your deportation order from prison or a correctional facility can be very difficult due to the lack of resources and information available to you. Here, your best cause of action is to contact NGOs working in this area to ask for assistance or information. Alternatively, you may wish to contact other relevant institutions, such as the Ombudsman or prison inspectorates. They may not be able to provide direct support, but can give information on where to seek support.

B. Appealing after deportation (i.e. being in a different country to where the proceedings are taking place)

Some countries have adopted the practice of deporting persons before their appeal hearing or decision takes place.

This practice has been heavily criticised due to the difficulties this places on the appellant. In particular, the appeal process will become expensive through having to send documents internationally. The appellant is also unlikely to receive legal advice in the deporting country.

C. Difficulty obtaining the relevant evidence

As seen in other sections of this chapter, challenging a deportation order on human rights grounds will require evidence to support your claim. This is particularly difficult when you are in detention with limited access to the outside world. However, this is recognised issue and should be taken into account when assessing your claim.

 

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