Title: Temporary Restrictions on Travel: How the United Kingdom deals with foreign fighters and how it affects the individual's Human Rights
Abstract: In February 2015 the British Parliament adopted the Counter-Terrorism and
Security Act 2015 for the purpose of filling gaps in the previous counterterrorism legislations. The temporary restriction on travel measures thus introduced, target the increasing problem with so-called foreign fighters and consist of two elements. The power to seize and retain passports and/or
travel documents entrusts a port constable the discretion to decide whether
there are reasonable grounds to suspect that an individual intends to leave
the United Kingdom for engaging in terrorism-related activity while being
abroad. In such event, the constable is permitted to seize the passport and/or
travel documents, and on authorization from a senior police officer, retain
them. The second element is triggered when a person is outside the UK and
the Secretary of State considers there are reasonable grounds to suspect that
the person is, or has been, involved in terrorism-related activity. The
Secretary of State may then seek permission from a court to impose a
Temporary Exclusion Order upon the individual. The court is obliged to
give permission, unless the decisions taken by the Secretary of State are
obviously flawed, which results in the person being prohibited from
returning to the UK, regardless of whether the affected individual is a UK
citizen or not.
In the event of other States following the UK in introducing new counterterrorism measures to prevent people from travelling abroad to participate in terrorism, it is vital to assess the human rights implications these measures bring.
In this thesis, I argue that the temporary restriction on travel measures are
criminal in nature although in the domestic legal order they are classified as
administrative powers. The European Court of Human Rights established in
its judgment in Engel and Others v the Netherlands three criteria for
determining the de facto character of domestic provisions as they should be
understood within the meaning of the European Convention on Human
Rights: the label in national law, the nature of the offence and the severity of the penalty. In applying these criteria to the temporary restrictions on travel, my analysis shows that the use of these powers amounts to an imposition of a criminal sanction, in particular due to the severe intrusions with the
affected individual’s human rights and liberties they cause.
To consider a provision criminal in nature, as opposed to administrative,
renders the need to include procedural safeguards appropriate for criminal
law standards. The fundamental protection in this respect is the right to a
fair trial codified in ECHR, article 6. For the use of the temporary
restrictions on travel measures to be lawful, adequate judicial review is
crucial in order to protect from an arbitrary application. As my analysis
reveals, the Act lacks sufficient safeguards to the detriment of the targeted
individual, which I contend is due to the choice to regard the provisions as
containing administrative powers.
Publication Year: 2015
Publication Date: 2015-01-01
Language: en
Type: article
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