Chapter 15 End-of-chapter question guidance

Deportation

1. The European Court of Human Rights in the case of Maaouia v France said that deportation is not a criminal penalty imposed upon a foreign national. It is not a punishment for a crime for which they have already served a prison sentence, but is an administrative matter. Consider the arguments for and against that view.

Reading Maaouia itself may help to understand the Court’s point of view. The extensive facts may be skim-read.

To take the view of the majority in Maaouia requires prioritizing the state’s control over foreign nationals, and emphasizing the connection and security that comes with nationality.

If you see the issue from the point of view of the experience of the foreign national, you will more readily disagree with the court.

Try to argue from the opposite point of view to the one you naturally take.

 

2. Do you agree with ‘automatic’ deportation? What is the alternative?

A. Set out the law in the UK Borders Act 2007. Also consider the previous law relating to ‘conducive to the public good’ and the Strasbourg case law on deportation and article 8.

B. Give some examples in case law of the different approaches of the UK and Strasbourg. The case of Kiarie & Byndloss appears to incorporate the Strasbourg criteria

C. What is the reason in law for these differences? Does the UK’s approach amount to a policy of zero tolerance for foreign criminals?

D. Give your own assessment of whether this is justified.