5. Immigration law and human rights

Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt ◽  
Helena Wray

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter discusses human rights law as it affects immigration and asylum. It explains how human rights apply to decisions on entry and removal, and the extra-territorial application of Article 3, and its nature as an absolute right. The chapter discusses Article 8, and how the proportionality test is applied to removal decisions in particular. It considers the effect on Article 8 cases of the immigration rules, the Immigration Act 2014, and case law interpreting the relationship between the rules, statute and human rights. It briefly covers other Articles, including recent cases on Article 10. It also refers to the interaction of human rights with the duty in s 55 Borders Citizenship and Immigration Act 2009 to have regard to children’s welfare.

2021 ◽  
pp. 145-198
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt

This chapter discusses human rights law as it affects immigration and asylum. It explains how human rights apply to decisions on entry and removal, and the extraterritorial application of Article 3, and its nature as an absolute right. The chapter discusses Article 8, and how the proportionality test is applied to removal decisions in particular. It considers the effect on Article 8 cases of the immigration rules, the Immigration Act 2014, and case law interpreting the relationship between the rules, statute, and human rights. It briefly covers other Articles, including recent cases on Article 10. It also refers to the interaction of human rights with the duty in s 55 Borders Citizenship and Immigration Act 2009 to have regard to children’s welfare.


Author(s):  
Tsvetelina van Benthem

Abstract This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.


Author(s):  
Vladislava Stoyanova

Abstract This article shows the importance in human rights law of the right to leave any country, in light of increasing efforts by European countries of destination to prevent departures and to contain movement by enlisting countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and challenges in triggering its application. It assesses whether this right is opposable to destination countries, and finds two key challenges – first, meeting the requisite jurisdictional threshold, and secondly, as this is a qualified right, applying the proportionality test. The article examines the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty bearer (the State) and the right holders (the individuals). This relationship enables us to operationalize the proportionality test – namely whether measures limiting rights are in accordance with the law and are proportionate.


2021 ◽  
Vol 8 (1) ◽  
pp. 40-48
Author(s):  
Rizkyana Tri Nandini ◽  
Anita Trisiana ◽  
Dina Yeti Utami

ABSTRAKHak Asasi Manusia adalah suatu hak fundemental  yang dimiliki manusia yang merekat pada seseorang dari lahir, HAM tersebut juga tidak dapat dirampas dan dicabut keberadaannya selain itu untuk kehormatan, HAM juga harus dihargai, dipelihara, dan dijaga oleh negara, hukum, pemerintah dan semua orang. Hubungan antara HAM dan negara hukum sangat erat dan saling berhubungan serta tidak dapat dipisahkan karena suatu hukum berfungsi untuk melindungi hak asasi manusia itu, selain itu semua perilaku manusia disuatu negara selalu berdasarkan hukum. Semua hak terikat oleh hukum dan ada bukti bahwa hukum yang mengikatnya. Sebagai warga negara kita harus mengetahui pentingnya hubungan HAM dengan hukum yang mengatur agar dapat terhindar dari pelanggaran HAM. Metode yang diterapkan yaitu metode penelitian kualitatif dengan pendekatan deskriptif. Hasil dari penelitian ini menunjukan bukti bahwa hukum sangat berpengaruh dan penting dalam penegakan HAM, hal ini karena hukum sebagai penunjang dan mengikat setiap orang serta memberikan sanksi bagi yang melanggarnya, sehingga adanya hubungan antara rule of law dengan HAM sangat jelas. Setiap individu membutuhkan hak asasinya dengan adanya kepastian hukum. Di dalam hukum terhadapat pengaturan tentang hak, dan dalam hak manusia tertulis perlindungan hukumnya. Jadi hubungan keduannya berhubungan satu sama lain dan saling melengkapi. Untuk itu, kita harus memahami relevansi HAM dan hukum agar kita juga dapat terhindar dari pelanggaran HAM.Kata Kunci : Hak Asasi Manusia, Hukum, IndonesiaABSTRACTHuman rights are fundamental rights that are owned by humans which are inherent in someone from birth. Human rights cannot be deprived and deprived of their existence. Besides that, for honor, human rights must also be respected, maintained and guarded by the state, law, government and everyone The relationship between human rights and the rule of law is very close and interconnected and cannot be separated because a law functions to protect human rights, besides that all human behavior in a country is always based on law. All rights are bound by law and there is evidence that the law is binding. As citizens, we must know the importance of the relationship between human rights and laws that regulate human rights violations to be avoided. The method applied is a qualitative research method with a descriptive approach. The results of this study show evidence that law is very influential and important in upholding human rights, this is because the law supports and binds everyone and imposes sanctions for those who break it, so that the relationship between rule of law and human rights is very clear. Every individual needs their basic rights with legal certainty. In the law there are regulations regarding rights, and in human rights written legal protection. So the relationship between the two is related to each other and complementary. For that, we must understand the relevance of human rights and the law so that we can also avoid human rights violations.Keywords: Human Rights, Law, Indonesia


Author(s):  
Philip Spoerri

This chapter examines the general features and principles of the law of occupation in international armed conflict. It considers some of the key contemporary challenges to the implementation of the law of occupation and addresses selected issues that have direct impact on the population living in a territory subject to the effective control of a foreign army. It explains that this law is aimed at the maintenance of the sovereign rights of the ousted government until belligerents agree upon the conditions for its return. This chapter also discusses the issue of the question of transformative occupation and the relationship between the law of occupation and human rights law with regard to the use of force in occupied territory.


Author(s):  
Jérémie Gilbert

This chapter focuses on the connection between the international legal framework governing the conservation of natural resources and human rights law. The objective is to examine the potential synergies between international environmental law and human rights when it comes to the protection of natural resources. To do so, it concentrates on three main areas of potential convergence. It first focuses on the pollution of natural resources and analyses how human rights law offers a potential platform to seek remedies for the victims of pollution. It next concentrates on the conservation of natural resources, particularly on the interconnection between protected areas, biodiversity, and human rights law. Finally, it examines the relationship between climate change and human rights law, focusing on the role that human rights law can play in the development of the current climate change adaptation and mitigation frameworks.


Author(s):  
Carla Ferstman

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.


2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.


Author(s):  
Samuel Singer

AbstractHuman rights instruments are but one of many legal advocacy tools used by trans people. Recent legal scholarship emphasizes that human rights laws are not sufficient to address legal challenges facing trans people, particularly intersectional and systemic barriers. This article looks to Canadian trans case law outside of human rights law to reveal the many instances in which trans people’s fight for legal recognition and redress occur outside of the human rights arena. It focuses on trans case law in three areas: family law, the use of name and gender in court, and access to social benefits. Canadian trans jurisprudence illustrates that not only are trans legal strategies outside of human rights plentiful and effective, they are also imperative. An agile and pragmatic approach to trans rights is necessary, particularly when minority rights are under threat, and for trans people on the margins of trans law reforms.


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