What happens when Strasbourg gets it wrong?
There is an argument that foreign nationals suspected of terrorist activities, and detained pending deportation, are in a “three walled prison”: they are free to leave detention at any point, as long as they agree to leave the UK altogether.
For many, however, this “freedom” is a legal fiction, for on return home to certain of their countries there is the risk of arrest, torture, and even loss of life. Here is the prison’s fourth wall. That reality was first recognised in Chahal v UK [1996] 23 EHRR 413, ECHR 22414/93. The European Court of Human Rights (ECtHR) held that a deporting state would be in breach of the European Convention on Human Rights (the Convention) if the receiving state was likely to abuse the deportee’s fundamental rights.
The first response to Chahal was to legislate to allow for indefinite detention within the UK, and enter a derogation from Art 5 of the Convention. When this approach was held to also breach fundamental rights, a
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