13/08/2021
THE CURRENT WAVE OF DETENTIONS, UK SHOULD INTROSPECT!
The current wave of detentions and, subsequent removals caught people really unaware. Dewa Legal Services is proud to have been able to stop the removal and eventually, get bails for the cases in which we were instructed.
NOT TRIVIALISING AND ENDORSING CRIMINALITY
What I am going to say is in no way a form of trivialising what most of those that were detained had done. Some committed particularly diabolic and heinous crimes and once convicted the possibility of removal became real. In any given society we will definitely have people committing offences and penal law exists to act as a deterrent to the commission of offences. Is the UK correct in removing foreign criminals? In some cases yes, the UK will be correct to do so but not every such offence should be an open licence for the removal of people who are settled in the UK in one way or the other. Prison in the UK seeks to rehabilitate offenders and does not exist as the secret house where people go to be punished. Recent moves have been towards restorative justice and inasmuch as we all want a clean society where we live in harmony and we are crime-free, this puritan society is utopias. That then means the UK should not be in a default setting whereby every offender should be detained and sent home.
THE SAFETY NET IS TOO SMALL
Protections do exist under the 1951 UN Refugee Convention in particular Articles 33(2) and Article 32 and Artilces 2, 3 and 8 of the 1950 ECHR. However, although we have and many lawyers have used these successfully, what still remains to be seen is to what extent the UK herself is prepared to take more responsibility for all people within its territory, including foreign offenders.
The question to be asked is "Is the UK responsible for foreign criminals within its territory?" The answer is "Yes". There is a case known as "Soering" which created the “Soering principle”. This states that where it is clear that a person being removed faces death or torture in the receiving State, the removal will be unlawful. Interestingly the case involved a German national who faced the death penalty in a competent jurisdiction, the USA. The UK's responsibility for criminals within its territory is further underlined by what is known as the "surrogacy principle" which means the UK adopts, in particular, refugees within its territory. The "surrogacy principle" addresses the issue of what is known as political offenders, people who commit criminal offences in the UK or who previously committed criminal offences in the receiving country but whose removal to the receiving country will be unlawful by operation of Article 33(2) of the 1951 Convention. The surrogacy principle, which is used more in extradition, says the UK should apprehend and punish the perpetrator in line with its laws but once punished they cannot be sent to a country where to do so will be in breach of their rights under the 1951 Refugee Convention or the 1950 ECHR.
THE CURRENT APPROACH IS IRRESPONSIBLE
Unfortunately, this is not the approach that the UK is taking. What has been happening is the country completely disregarding its responsibilities and disowning rehabilitative justice where it comes to even first-time minor offenders if they happen to be foreigners. I am aware of the operation of Section 117B of the Nationality Immigration and Asylum Act 2002 which permits the removal of foreign nationals but this is read together with 117C and 117D, but without the aid of the judiciary many deemed foreign criminals will not stand a chance. What is clear is that if someone fails to get legal representation the default is for a foreign offender to be considered under Section 1178 and removed from the UK. Although there are remedies even to an unlawful removal this may be scant consolation where removal actually takes place and drastic consequences of that removal are meted on the deportee, such as losing their life in the receiving country.
WORRYING TRIGGER HAPPINESS
Traditionally this country has not removed refugees or even revoked refugee status that frequently. However, this time around it seems even revocation of refugee status and subsequent removal of them has become something the UK is willing to do. However, revocation has been preferred in particularly serious matters such as sexual offences. In a case known as JS(Uganda) [2019] EWCA Civ1670, the refugee joiner was on the S*x Offenders Register and he lost his case and his refugee status was revoked. There were no real impediments to remove him to Uganda. However, some cases are really hopeless and revocation fails because of that.
REHABILITATION REMAINS RELEVANT EVEN TO THE FOREIGNER
To conclude no one in their right senses will criticise the UK government or any government for coming hard on criminals, foreigners included. However, those that commit minor offences and have demonstrated a willingness to reform should not be punished further by being removed. The rehabilitative nature of imprisonment should come to the aid of those that have reformed and are not posing any real danger to the security of the UK and the UK public. If they can re-integrate and they have spent a considerable amount of time in the UK, why should they be asked to leave?
My parting shot is for people to try and avoid being found on the wrong side of the law regardless of your status, in particular becoming a repeat offender even for what can be deemed to be minor offences. DLS represents clients in all aspects of immigration law but we very much want to help whilst one is enjoying their freedom. Being a person who has lost his liberty to political persecution before I know what it means to be incarcerated for no criminal offence really and even for lawyers, visiting people in detention and leaving them behind still detained is not a good thing to do. I personally don't enjoy it and I believe most of my colleagues don't either.
Stay safe!
Julius S T MUTYAMBIZI-DEWA(Is the Principal and a Co-Director at Dewa Legal Services), email: [email protected], phone: Mobile: 07401182271, Tel: 01332482320, website:
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