|
Since
1989
international human rights bodies have
made rulings on individual
cases (case law) and issued general
comments or advisory opinions
(jurisprudence) making clear that States
can violate their human rights
treaties if they deport non-citizens in
certain circumstances. However
the concepts
of “fair trial” due process and equal
treatment for non-citizens in
deportation
proceedings are underdeveloped. Non-citizens
are
particularly vulnerable to deportation.
In a variety of cases
deportation has
an impact on a person's way of life and
the associated rights –
freedom,
freedom of movement, security of person,
family life, work, health and
education. Deportation to a real
risk of torture would violate the right
to protection from torture.
Deporting a
stateless person would violate a freedom
of movement right.
Deportations which
separate core family members, husband,
wife, minor children, violate
family
rights. The UN Committee against
Torture, CaT, acting under the
Convention
against Torture has developed a body of
case law prohibiting
deportation to a
serious probability of torture. Although
deportation remains prohibited
when "national security" is
invoked, the protection is narrow.
The risk must be personal and there must
be
no region of the home State where the
person could reside safely. Some
jurisprudence seems far reaching. The UN
Human Rights Committee (HRC)
General
Conclusion 31 implies that any
deportation to irreparable harm
could violate a
treaty right. However the case law
constraints of the HRC and the
European
Court of Human Rights (ECourtHR) are
more limited. The ECourtHR has a
useful
body of case law prohibiting family
separation. The more limited HRC
case law
relating to family rights and children’s
rights in deportation has
avoided finding
State violations except in extreme
situations. From
the
non-citizen's point of view, the
usefulness of constraints on State
deportation depends on fair trial due
process in the deporting State.
It is due process which can stand
between the
non-citizen and the State authorities
bent on deporting with support
from a
hostile media and citizenry. In such
circumstances the process must be
capable
of ensuring the protection of any
substantive rights of the non-citizen
which
are at issue. Here
the
ECourtHR and HRC have backed away. It
is
precisely in the due process area that
since the mid 1980s Western
States
have used restrictive appeal rights for
non-citizens, and, in
particular, for asylum
seekers. This has been part of a general
policy in the West of
detention and
deterrence aimed at discouraging asylum
seekers. The general policy has
involved many States in restrictive
legal measures and publicity about
them so
as to appear unattractive to asylum
seekers. This is, of course, at
odds with
progressive improvements in the
enjoyment of human rights and with
obligations
to ensure rights for everyone by
measures, such as, fair trial due
process. There
may be an
understandable reluctance to challenge
Western States head on about the
matter
of a fair trial and meaningful appeal.
Yet in politicized situations
involving non-citizens,
where a State desires deportation, it is
simply unreasonable to expect
State
officials to “ensure” their rights. Only
an independent and impartial
tribunal
might ensure rights. Unless there has
been
some formal due process in the initial
ruling on the right at issue and
unless courts have a clear obligation to
intervene to ensure individual rights,
the existence of a court review
is
not meaningful for ensuring rights. The
intent
of the treaties concerning due process
reads relatively clearly.
The
American Convention on Human Rights,
later than UN or European rights
treaties,
provides later juridical guidance. It
requires an independent and
impartial
tribunal for the adjudication of a right
of any kind. The fact of the
adjudication of a right is what matters.
The UN civil rights treaty
requires
that States "ensure" the treaty rights
in Art 2 and in Art 14.1 it
calls for an independent and impartial
tribunal for the adjudication of
rights
in a civil suit or for a criminal charge
and it calls for equal
treatment
before the courts. The European
Convention requires an independent and
impartial tribunal for the adjudication
of civil rights or for a
criminal charge.
Within the human rights systems there is
to be an evolving improvement
in the
enjoyment and protection of rights for
everyone rather than a falling
away for
some social group like the non-citizens. In
Maaouia
v France 2000 the ECourtHR found that
the right to fair trial
Art. 6 is
not engaged in deportation. In its General
Conclusion 32 the HRC found that the
right to fair trial due process
depends on the
nature of the right at issue, there is
no civil suit about rights when
a
non-citizen is deported and fair trial
Art 14.1 does not apply. Yet
both the HRC and ECourtHR have
themselves found
violations of fundamental treaty rights
in deportation situations. When
important
rights arise, they are adjudicated
within the deportation processes as
the HRC
saw in Ahani v Canada. When the
individual faces the full
power of the State in the adjudication
of the right to protection from
torture by deportation, an
administrative examination by a
government
official is
not good enough. Unfortunately, that was
not the HRC finding in the
Ahani case. Such an
adjudication of such a fundamental right
should attract the
corresponding right
to a fair trial hearing. Both
CCPR
Art. 13 and ECHR Protocol 7 offer non
citizens an additional
distinct
right to a hearing of reasons against
expulsion. The ECourtHR and the
HRC have each
implied that this special hearing for
the non-citizen replaces the
right to
fair trial due process. However, an
additional right in no way removes
other
treaty rights and related State
obligations. A more reasonable
interpretation is
that the expulsion hearing for
non-citizens is an extra measure, an
“affirmative
action” measure, to offset the special
disadvantage of the non-citizen
who,
unlike the citizen, can face deprivation
of enjoyment of rights by
expulsion. The
weak
promotion of fair trial due process is
surprising given the aim of
promoting treaty rights. In fairness,
the treaty bodies have chosen to
take some positions
on equal treatment and on aspects of due
process in some case
situations. In
Chahal v UK, the ECourtHR pointed to the
obligation to provide an
“effective
remedy” for rights. The ECourtHR pointed
to a key element of due
process: the need of the individual to
hear and to be able to rebut
evidence
against him or her. The finding has
given rise to a somewhat improved
appeal
process in the UK when sensitive
evidence is involved. In similar vein,
the HRC
has found that elements of due process
may be attracted by the State’s
obligation
to allow a non-citizen to present
reasons against expulsion (CCPR
Art.13). Yet the general restrictions on
non-citizens’ access to due process as
compared with citizens were
easily
accepted by the HRC in the Dauphin v.
Canada 2009 case. In
sum, treaty bodies have found
substantive rights can be violated by
proposed
deportation of non citizens in some
limited situations. There has been
recent
movement to imply that rights are not
at issue in a deportation hearing
or that
they don’t attract the formal fair
trial due process hearing. This
should be
corrected. At the same time, the
treaty bodies have found ways to prod
States
towards elements of due process in
some deportation cases. Hopefully
they will
at least continue to push these
notions. Without further pressure,
States will remain
able to interpret their obligations so
as to deport most of the
non-citizens
they choose to when they want to
without fair trial due process for
years to
come. TOP
Click: |
