Justice in Exile? The Implications of ‘Temporary Exclusion Orders’ for the Right to a Fair Trial

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Abstract

Shortly after the outbreak of the Syrian Civil War and the emergence of the so-called ‘Islamic State’, concerns mounted that individuals were travelling to the region to take part in the hostilities, before returning to their countries of origin having been trained to commit acts of terrorism. In response, the British Parliament enacted the CounterTerrorism and Security Act 2015 which introduced temporary exclusion orders; a relatively unknown administrative power which temporarily bars an individual from returning to the UK, before allowing for their managed return subject to restrictions.
Although this power has, to date, been scarcely utilised, the implications of the mechanism for the right to a fair trial are significant. Whilst the decision to impose the mechanism is subject to automatic judicial review, these proceedings can take place without the individual’s knowledge or meaningful involvement due to the possibility of the review being heard in ex parte and in camera proceedings. Moreover, should the individual seek to challenge the Secretary of State’s decisions, or any of the conditions imposed upon their return, they must wait until they have returned to the UK, where the proceedings are again likely to take place in closed conditions.
Original languageEnglish
Pages (from-to)494-507
Number of pages14
JournalAsian Yearbook of Human Rights and Humanitarian Law
Volume3
DOIs
Publication statusPublished - 22 Jul 2019

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exile
exclusion
justice
country of origin
civil war
parliament
terrorism
act

Bibliographical note

Accepted and proofs sent to me on 24th April 2019.

Keywords

  • temporary exclusion orders
  • counter-terrorism
  • administrative powers
  • procedural justice
  • extraterritoriality

Cite this

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title = "Justice in Exile? The Implications of ‘Temporary Exclusion Orders’ for the Right to a Fair Trial",
abstract = "Shortly after the outbreak of the Syrian Civil War and the emergence of the so-called ‘Islamic State’, concerns mounted that individuals were travelling to the region to take part in the hostilities, before returning to their countries of origin having been trained to commit acts of terrorism. In response, the British Parliament enacted the CounterTerrorism and Security Act 2015 which introduced temporary exclusion orders; a relatively unknown administrative power which temporarily bars an individual from returning to the UK, before allowing for their managed return subject to restrictions.Although this power has, to date, been scarcely utilised, the implications of the mechanism for the right to a fair trial are significant. Whilst the decision to impose the mechanism is subject to automatic judicial review, these proceedings can take place without the individual’s knowledge or meaningful involvement due to the possibility of the review being heard in ex parte and in camera proceedings. Moreover, should the individual seek to challenge the Secretary of State’s decisions, or any of the conditions imposed upon their return, they must wait until they have returned to the UK, where the proceedings are again likely to take place in closed conditions.",
keywords = "temporary exclusion orders, counter-terrorism, administrative powers, procedural justice, extraterritoriality",
author = "Ben Stanford",
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N2 - Shortly after the outbreak of the Syrian Civil War and the emergence of the so-called ‘Islamic State’, concerns mounted that individuals were travelling to the region to take part in the hostilities, before returning to their countries of origin having been trained to commit acts of terrorism. In response, the British Parliament enacted the CounterTerrorism and Security Act 2015 which introduced temporary exclusion orders; a relatively unknown administrative power which temporarily bars an individual from returning to the UK, before allowing for their managed return subject to restrictions.Although this power has, to date, been scarcely utilised, the implications of the mechanism for the right to a fair trial are significant. Whilst the decision to impose the mechanism is subject to automatic judicial review, these proceedings can take place without the individual’s knowledge or meaningful involvement due to the possibility of the review being heard in ex parte and in camera proceedings. Moreover, should the individual seek to challenge the Secretary of State’s decisions, or any of the conditions imposed upon their return, they must wait until they have returned to the UK, where the proceedings are again likely to take place in closed conditions.

AB - Shortly after the outbreak of the Syrian Civil War and the emergence of the so-called ‘Islamic State’, concerns mounted that individuals were travelling to the region to take part in the hostilities, before returning to their countries of origin having been trained to commit acts of terrorism. In response, the British Parliament enacted the CounterTerrorism and Security Act 2015 which introduced temporary exclusion orders; a relatively unknown administrative power which temporarily bars an individual from returning to the UK, before allowing for their managed return subject to restrictions.Although this power has, to date, been scarcely utilised, the implications of the mechanism for the right to a fair trial are significant. Whilst the decision to impose the mechanism is subject to automatic judicial review, these proceedings can take place without the individual’s knowledge or meaningful involvement due to the possibility of the review being heard in ex parte and in camera proceedings. Moreover, should the individual seek to challenge the Secretary of State’s decisions, or any of the conditions imposed upon their return, they must wait until they have returned to the UK, where the proceedings are again likely to take place in closed conditions.

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