Public Law Report: Britain First Act and ECHR Incompatibility Analysis

This report examines the case of Mr. Inigo Montoya, a non-British national facing deportation due to his participation in an illegal demonstration against the Britain First Act 2017. The report analyzes the incompatibility of Section 1 of the Act with the European Convention on Human Rights (ECHR), focusing on deportation laws and the right to judicial review. It further explores how Section 2 of the Act contradicts established constitutional principles, particularly concerning the Human Rights Act 1998 and the doctrine of parliamentary supremacy. The analysis includes legal arguments that can be made against Section 2, emphasizing the importance of protecting individual rights under ECHR articles, such as the prohibition of torture and the right to respect for private and family life. The report concludes that current law and legislation contradicting constitutional principles lack legal validity, emphasizing the right of individuals to seek justice in court and the critical role of the judiciary in upholding the rule of law.

Public Law

Table of Contents
INTRODUCTION...........................................................................................................................3
Case scenario..........................................................................................................................3
1.) Section 1 of the Act is incompatible with ECHR.............................................................3
2) Section 2 Contradict constitutional principles...................................................................5
3) Current law and legislation that contradicts these constitutional principles has no legal
identity....................................................................................................................................6
4.) Legal arguments which can be made against section 2 and assist Mr Montoya’s case....6

INTRODUCTION
Deportation is the compulsory removal of non-UK nationals who tried or breached UK
immigration rules, This can be done if they live there illegally or because they stay more than the
given time. The present report is based on the case study and it covers Section 1 of the Act is
incompatible with the European Convention on Human Rights (ECHR). Along with this, Section
2 of the Act contradicts well-established constitutional principles that will also be discussed
Case scenario
According to the given scenario, Mr. Inigo Montoya is a non-British national. He
participated in an illegal demonstration against The Britain first act 2017. According to this act
non- UK nationals who participated in any of illegal demonstration can be deported from the
country. For his illegal demonstration, hearing was granted and decision made by Home Office
to deport Mr. Montoya from the UK.
1.).
Deportation is the public good and in it requires a foreign national to leave the UK and
authorise his custody till the date they are not removed from the UK. However, deportation order
can be applied on the foreign national even they have a valid visa1. Along with this, they are
prohibited from entering the country until the time of the deportation order. An individual who is
not a British citizen can be deported from the UK as per the Immigration Act 1971. According to
this act, while deciding that someone on grounds, that the public interest need to be balanced
against the different circumstance in the case2. An individual cannot be deported from the
country until they did not commit any illegal activity or breach refuge convention and the
European Convention on Human Rights3. There are some exceptions for an automatic
deportation such as at the time when individual raise a claim under the ECHR. While a person is
below the age of 18 on the date of conviction etc. Apart from this, as per the UK immigration
law, a deportation order can be made against a foreign national in certain situations. However,
the deportation order is not only deporting an individual from the UK but also held in custody till
the data of proving right. There is some basic assumption related to the deportation order such as
1 Sawhney, I., Zia, A. and Gates, B., 2017. Patients with learning disabilities who lack capacity detained under the
Mental Health Act in the UK: A case study. British Journal of Learning Disabilities. 45(2). pp.138-141
2 Party, C.G., 2015. The European Convention on Human Rights and the UK Bill of Rights: a briefing paper
3 Bosworth, M., 2017. Penal Humanitarianism? Sovereign Power in an Era of Mass Migration. New Criminal Law
Review: In International and Interdisciplinary Journal. 20(1). pp.39-65

it is for the interest of the public good. Until the deportation order can breach the individual
rights under the European refugee’s convention. Apart from this, deportation order cannot be
made for removing a person from the UK as if he/she breaches the UK duties as per the ECHR.
According to the Immigration Act 1971, a person who is not a British Citizen is liable to
deportation from the UK4. This statement is grounded over two major factors and they include,
the secretary of state deems the deportation to be conducive to the public good or it is the court
which suggests deportation of a person more than 17 years who is convicted of a crime that is
punishable with imprisonment. However, the controversies raised in 2006 has influenced the
responsive bodies to alter the decision5. As per this revised law, the presumption of public
interest requiring deportation is valid only when it is the breach of ECHR or refugee convention.
Later, in 2007 this presumption was given statutory importance under UK borders Act. In order
to formally remove the foreigners from the nation when they are observed violating the
immigration laws, this deportation is planned. The UK borders act has made a compulsion on
deportation for foreign nationals over the age of 17 years who are sentenced to imprisonment of
more than a year.
European Convention on Human Rights play the significant role with respect to protect
the human rights. If an individual who feels that their rights are violated under the convention
then they can take the case to the court6. At the time when an individual broke the immigration
rules, for instance, carrying out illegal activities then the home office has permission to deport.
However, an individual has chance to provide evidence and stay in the UK. While if evidence is
rejected then it can appeal in the country and or choose to leave (Boswell, 2007). If a non-UK
national has strong evidence then it can stay in the UK and no one can deport. Apart from this,
there is some situation in which foreign national can become liable to deport under the UK
Immigration Act such as a criminal court pass the judgment of sentence then it can have
recommended to deport as per the immigration act 19717. Further, if the secretary of state proved
that its presence in the country is not conducive to the public good. ECHR provide support to
4 England, S. and Weiner, M., 2017. 9 Migration, immigration, and settlement within the
Pacific Basin. The Pacific Basin: An Introduction. p.91.
5 Greene, A., 2016. The UK, The Council of Europe and Turkey's International Human Rights Obligations in a State
of Emergency: Submission to Foreign Affairs Committee: United Kingdom's Relations with Turkey
6 McHarg, A., 2016. Human rights: would our rights be better protected in or out of Europe?.

immigration who are deported from the country without any strong reasons. There are different
situations in which ECHR do not help non-UK national people if they are deported because of
some specific reasons.
Hence, it can be stated that Section is incompatible with the ECHR it is so because
people have right to claim in court and provide strong evidence in a circumstance when they are
deported by Home office.
2
According to the section 2, a decision of deportation as per accordance to the section 1
will be final will not be subject to judicial review. There are some constitutional principles that
contradict section 2. Human right act 1998 is one of the challenges for the doctrine of
parliamentary supremacy. The agreement of protecting rights of human which came into force in
1980 and it is also known as international Bill of Rights. Further European constitutional of
human rights is known as the bill of rights and decided out fundamental rights which should be
strictly followed by the in few circumstance for instance threat of country8. The legal relationship
between the HRA has with policy is specified in the 3 and 4 sections. Therefore section 3 stated
that if it is possible then the court of law should put effort to understand it. In order to obey the
conventional rights. On the other side section 4 state that to declare of unsuitability is a way that
can be only declaratory of the fact which is observed by the law of courts which is mismatched
with the convention right. Hence, in the light of declaration if the court makes any final
judgment then rest with parliament and in case if assembly chooses not to modify or cancel it an
establishment which has been declared by a court to be mismatched with convention rights. In
some circumstance, if there is violation of human rights and it is brought to ECHR then it
adheres to parliament for act in accordance with the HRA and if it unable to do so then some
penalties can be faced by them9. Apart from this, Human right act not help in protecting all the
rights of the citizen, and it becomes a goal of the nation for getting rid of governmental control.
Along with this parliament who make acts and statutes also ensure that judges that judges which
7 Boswell, C., 2017. Migration control in Europe after 9/11: Explaining the absence of securitization. JCMS: Journal
of Common Market Studies. 45(3). pp.589-610
8 Greene, A., 2017. The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR: Submission to the
Joint Committee on Human Rights
9 Grear, A. and Grant, E. eds., 2015. Thought, Law, Rights and Action in the Age of
Environmental Crisis. Edward Elgar Publishing.

passed all the acts must be responsible and accountable. Judiciary also check all the legislature
and they are enforcing to Doctrine of parliament supremacy with the process of judiciary review.
Here the role of the judiciary to examine the legality of the actions of the executive and shows
the means power is in hand of the court to make control of the administration. Therefore, it is can
be stated that section 2 Contradict constitutional principles on the above-given basis.
3).
As per the ECHR court required to protect the rights of the human. It is important that all
the acts which are passed by the government must be the benefit for the people and they should
provide the chance to prove themselves in front of the court. The UK remains the signatory to the
ECHR, courts can rule that some of the legislation which is approved by the parliament violates
the agreement requirement10. All the UK constitution are not codified in a single document and
its constitution are made up of series of the act of parliament. There are different high courts that
make a declaration of incompatibility among the human right act 1998 and law. Therefore, it can
be taken as far as to supreme court. Here supreme court makes a remedy related to whatever fit
and can amend legislation to comply with the human right act . Hence the above mentioned
constitutional principles have no level validity because it is incompatible with ECHR11. In
addition to this section 2 that is a decision of deportation as per accordance to the section 1 will
be final will not be subject to judicial review is not legally valid because according to the human
right act, a defendant has right to claim in court for justice if it is not satisfied with the decision
of Home office.
4.).
Yes, there are some legal arguments that can be made against the section 2 such as
according to ECHR article 3 prohibition of torture non-UK national should not be tortured and
provided the chance to sue in court if it faced any kind of trouble. On the other side according to
article 8 of ECHR, it is a right to respect for private and family life. It is important that right to
10 Greene, A., 2017. The UK Government’s Proposed ‘Presumption to Derogate’from the
ECHR: Submission to the Joint Committee on Human Rights.
11 Gibney, M., 2013. Deportation, crime, and the changing character of membership in the
United Kingdom (pp. 218-236). Oxford: Oxford University Press

respect for private and family life so that they can live in their own way12. If a non- UK national
is directly deported for its illegal activity without proving themselves is wrong. Related to the
protection of the physical and psychological integrity of an individual from the act of other
persons. As article 8 can be taken alone or with the or in combinations with article 3 of the
convention. In this, it covers a responsibility of upholding and put on the practices and adequate
lawful outline to protect against the act of violence from the private individual. Hence Mr.
Montoya has right to claim in court for justice if he is not satisfied with the decision of Home
office as per the ECHR act. It is a right of an individual to protect themselves by providing
evidence in front of the court. However judicial review as an appearance of the rule of law which
is important and made by the government. Along with this, courts do not have the power to pass
any decision against the parliament.
12 Tyler, I., 2015. Welcome to Britain: anti-immigrant populism and the asylum invasion
complex. Eurozine.

Reference
Boswell, C., 2017. Migration control in Europe after 9/11: Explaining the absence of
securitization. JCMS: Journal of Common Market Studies. 45(3). pp.589-610.
Bosworth, M., 2017. Penal Humanitarianism? Sovereign Power in an Era of Mass Migration.
New Criminal Law Review: In International and Interdisciplinary Journal. 20(1). pp.39-65
England, S. and Weiner, M., 2017. 9 Migration, immigration, and settlement within the Pacific
Basin. The Pacific Basin: An Introduction. p.91.
Gibney, M., 2013. Deportation, crime, and the changing character of membership in the United
Kingdom (pp. 218-236). Oxford: Oxford University Press
McHarg, A., 2016. Human rights: would our rights be better protected in or out of Europe?.
Greene, A., 2017. The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR:
Submission to the Joint Committee on Human Rights.
Party, C.G., 2015. The European Convention on Human Rights and the UK Bill of Rights: a
briefing paper.
Grear, A. and Grant, E. eds., 2015. Thought, Law, Rights and Action in the Age of Environmental
Crisis. Edward Elgar Publishing.
Greene, A., 2016. The UK, The Council of Europe and Turkey's International Human Rights
Obligations in a State of Emergency: Submission to Foreign Affairs Committee: United
Kingdom's Relations with Turkey.
Sawhney, I., Zia, A. and Gates, B., 2017. Patients with learning disabilities who lack capacity
detained under the Mental Health Act in the UK: A case study. British Journal of Learning
Disabilities. 45(2). pp.138-141.
Tyler, I., 2015. Welcome to Britain: anti-immigrant populism and the asylum invasion complex.
Eurozine.
.