Human Rights, Public Law, Asylum & Immigration

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Northern Ireland Human Rights Commission

Article 6 ECHR – The right to a fair trial

A major concern with immigration enforcement, in general, and Operation Gull, in particular, has been the stage at which detained persons are able to speak to a legal practitioner. It is at a port in Northern Ireland that a decision will be made to ultimately remove a person from the UK. Once a passenger is taken aside for further questioning, he is likely to be fingerprinted, subjected to fairly rigorous questioning, his belongings are likely to be searched and, indeed, relatives and friends may also be contacted by the immigration officer to ‘confirm’ the passenger’s story. At this point, the passenger essentially becomes a detainee although it is suggested by the UKBA that this is a voluntary process. The comparison with an interview that might take place between a police officer and a suspect in a criminal investigation is not a disingenuous one. It was, however, established by the EctHR, in Maaouia v France 10, that art 6 of the ECHR is not applicable in the field of immigration. In that case, the Court concluded that decisions regarding the entry, stay and deportation of aliens did not concern the determination of an applicant’s civil rights or obligations of a criminal charge against him, within the meaning of art 6(1) of the Convention. Resting on individuals’ rights under art 6(1) of the ECHR are the further rights enshrined under art 6(3), regarding time and facilities to prepare for the defence and, before that, to be informed of the nature and cause of the accusation in a language the individual understands. While conceding the point with regards to the applicability of art 6 in the field of immigration, commentators have gone on to assert that, under common law, the right of access to the appellate authorities (ie in immigration and asylum tribunals) is regarded as a fundamental or basic constitutional right, akin to the common law right of access to the courts.

In addition, there are a number of procedural rights guaranteed under art 5 of the ECHR, including the right to be informed of the reasons for detention in a language understood by the detainee, as well as the right to have the lawfulness of one’s detention decided by a court.

These procedural rights are fundamental to the terms of this investigation and it is the standards of common law and the procedural rights guaranteed under art 5 against which domestic legislation and practice are evaluated, as well as the requirements of art 6 ECHR.

The logical corollary of the comparison with the common law provision of the right to a fair trial would suggest strongly that a right to interpretation and, indeed, legal representation is equally guaranteed under common law. The High Court decision in R (on the application of (1) Predrag Karas (2) Stanislava Miladinovic) v The Secretary of State involved a Croatian couple who were to be removed from the UK without being given the right to access legal advice. Mr Justice Munby stated that access to legal advice is one of the fundamental rights enjoyed by every citizen under the common law. Domestic legislation and policy appear to have addressed that right unsatisfactorily. The various legislative provisions relating specifically to immigration do not contain a right to legal advice at the point of being detained by an immigration officer. As a result of its findings, the Northern Ireland Human Rights Commission has recommended that the right to timely legal advice must be protected in the immigration field.