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 Counter-Terrorism 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.

Form and Flexibility: The Normalisation of ‘Magnitsky Sanctions’ in the Face of the Rule of Law

“…The limits of national judicial review are aggravated by the extraterritorial implications of unilateral sanctions law. Access to domestic courts can be more difficult for foreign persons, who may struggle to engage with legal representation and meaningfully participate in the trial or review proceedings (Stanford 2019). Furthermore, when domestic judicial review is denied, the lack of any international mechanism of judicial review, analogous to that afforded to EU citizens by the European Court of Justice, means that no judicial review will be available at all unless sanctions infringe human rights that are justiciable in international or regional human rights courts.…”