Does Farah have a claim to British Citizenship? Section 6 of the British Citizenship Act 1981 governs this area of law. It provides that anyone who has exercised a right to remain for five years or more may become a naturalised British citizen. Farah has not yet fulfilled this criterion. We are not told if Farah and Peter are married. In the purposes of discussion, if they were married Farah may able to claim parasitic rights of citizenship from her husband, Peter, as he is a British Citizen. Section 6 provides that anyone who has been married to a British Citizen and exercised a right to remain for more than three years may be naturalised as a British citizen.
If Farah indeed does have no claim to British citizenship she would be treated as an American. It is thus that she would be subject to the controls under 1(1) of the Immigration Act 1971. These immigration controls apply to all non-EEA nationals and in generally apply to EEA Nationals1.
Deportation to the United States
As a non-EEA national, and therefore not be entitled to any of the protections granted under EU Law. Farah could be the legitimate subject of a deportation order under Section 3(5). The Home Secretary enjoys a wide discretionary power in this field. The Act uses the ambiguous terminology that a deportation may be enforce when “conducive to the public good2” in the name of national security. This is a broad reason for deportation in absence of any criminal charges against Farah, one can only assume that deportation would be applied because the Home Secretary reasonably believes that Farah is “concerned in the commission, preparation or instigation of acts of international terrorism3” or that she is a member of international terrorist group4 or has links5 with one.
The only appeal that Farah may make is to the Special Immigration Appeals Commission. No judicial review is permitted against the Home Secretary’s decision but the courts have laid down some guidelines to be used when considering a deportation order. It has been held that the severity of the offence, the destination country proposed6 and the effect on that person’ family7. It is clear that a deportation of Farah would violate her right to family life as enshrined in Article 8 of the ECHR and incorporated into English law by the Human Rights Act. However, one must acknowledge the second subsection of this Article which provides that the interests of a democratic society must be balanced with the right to family Furthermore, there may be grounds for a challenge based on Article 3, effectively providing a right of asylum.
In the case of John Walker Lindh, the American government have made quite clear that they will press for the death penalty against American citizens involved in terrorism. If Farah is threatened the same possibility then she too could challenge any decision in a similar vein to Soering. However, it is difficult to see how the courts could credibly use section 3 of the Human Rights Act to interpret such an arbitrary act as ECHR compatible. Furthermore, the ruling in Hosenball8 highlights the courts reluctance to interfere with national security policy.
Lord Denning argued that the Secretary of State is better placed to make such considerations9. For Farah, it appears that public policy will trump the substantive law in times of public emergency. Rehman10 confirmed this approach by the courts, holding that deportation may be enacted even if the alleged conspiracy to commit acts of terrorism occurred outside the United Kingdom. The law highlights the problems facing Farah. The threshold of proof is extremely low
What methods of challenge are available to Farah? As she is arguably targeted for deportation on the grounds of her alleged links terrorism, the rules of national security will be activated. The Special Immigration Appeals Commission Act 1997 imposed restrictions on the right to appeal. The objective is security and the criminal prosecution model. Such appeals exclude the normal immigration appeals process, including judicial review of any deportation decision. Farah’s lawyers would be excluded from proceedings when security sensitive evidence is being considered11. Such a procedure is likely to have an adverse influence on making an effective challenge, despite the provision of a security cleared counsel. It should be noted that less than 1% of deportation order are successfully overturned12
Farah as an EEA National
If Farah was French, she would have exercised her right to free movement as provided under Articles 39-42 of the EC Treaty. Deportation can only be imposed on grounds of public health, public policy and public security. Is Farah an active member of the Morabian Liberation Front? Van Duyn13 found that this point was significant. Only active membership of a group would be sufficient for deportation. This is in line with the principle of non-retrospective punishment. This ruling’s original impact has been eroded by the decision of Bochereau14. The ECJ held that the decision to deport or extradite on public policy grounds would be treated with suspicion if one’s own nationals were not treated similarly.
Deportation To Morabia
It is submitted that any deportation to Morabia would be clearly ultra vires, in the light of these facts. Sending Farah back to a country where she could face torture or inhumane treatment would violate the non-derogable Article 3 of the ECHR15 and as well as placing the UK in breach of its obligations under the Geneva Conventions.
Detention without trial
This option has been created by statute in order to circumvent the rulings of Soeirng and Chahal. Groups such as Liberty have argued that this is a shameful violation of human rights whilst other academics assert that it is necessary and proportionate response to an act of terrorism, the size of which is without precedent. The legitimacy of such detentions will centre on whether the UK has entered into a valid Article 15 derogation. The test for the existence of a public emergency is found in Lawless v. Ireland16. It was held that a public emergency should be defined as an exceptional situation of crisis or emergency that affects the whole nation and threatens the life and liberty of the community at large.
It should be noted that in the First Greek Case17 emphasised that the threat to the life of the community must be imminent. One would need to see how many other states had entered into derogation in order to protect themselves from the perceived threat of the Morabian Liberation Front. If other British nationals are not being detained under ACTSA, the UK would be in violation of Article 14 of the ECHR that provides that no state should discriminate on grounds of nationality. If Farah was detained under this Act, there is also a possible ground for challenge using Article 6 of the ECHR. There would be a clear violation of the requirements to bring the case against her expediently18, the principle of the presumption of innocence19 and the minimum rights of prisoners20.
There is an also potential violation under ICCPR21. The Secretary Of State need only have reasonable suspicion that Farah is a terrorist, a standard that falls below the normal model of beyond reasonable doubt. Any appeal to SIAC will be difficult to be successful following this model.If this course of action was to be followed, there appears to be little redress for Farah. The courts have been tepid in challenging the executive when they declare national security interests; this is proven by the fact that almost two years after 9/11 nine inmates remain under indefinite detention in Belmarsh Prison.