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Clayton: Textbook on Immigration & Asylum Law 3e

Chapter 16

1. The European Court of Human Rights in the case of Maaouia v France said that deportation is not a criminal penalty imposed upon a foreign national. It is not a punishment for a crime for which they have already served a prison sentence, but is an administrative matter. Consider the arguments for and against that view.

Reading Maaouia itself may help to understand the Court's point of view. The extensive facts may be skim-read.

To take the view of the majority in Maaouia requires prioritizing the state's control over foreign nationals, and emphasizing the connection and security that comes with nationality.

If you see the issue from the point of view of the experience of the foreign national, you will more readily disagree with the court.

Try to argue from the opposite point of view to the one you naturally take.

2. Is it justifiable to treat European nationals more favourably in the context of deportation?

A. Set out the law in the Citizens' Directive applying to EU citizens, if necessary referring back to chapter 6, and the law in the 1971 Act as it applies to non-European citizens.
B. Give some examples in case law of the different approaches.
C. Explain the effect of automatic deportations under the UK Borders Act 2007 on EU nationals.
D. What is the reason in law for these differences? (Think of the EC Treaty)
E. Give your own assessment of whether this is justified.