The court is obliged to subject the Derogation Order and the legislation that resulted from it as it affects foreign nationals to the same degree of scrutiny as it would have to be given if it had been designed to deprive British nationals of their right to liberty. 122. The effects on the individual of a derogation that deprives him of his right to liberty will vary according to the nature, and above all the length, of the emergency. It is a question of degree. He then said that the appellants' place of detention has three walls, not four.
It allows states to derogate from their obligations under the Convention, but only in the circumstances that it sets out. Like Reply. And did SIAC ask itself the right question when it was examining the decision of the Home Secretary? 118. There is ample evidence within this material to show that the government were fully justified in taking the view in November 2001 that there was an emergency threatening the life of the nation. But the appellants fall into the category of those whom, for a variety of reasons relating to the sources or quality of the evidence, it is unable or unwilling to prosecute. But imminent emergencies arouse fear and, as has often been said, fear is democracy's worst enemy. There may be some nations too fragile or fissiparous to withstand a serious act of violence.
It is to protect and safeguard the rights of the individual. Their legendary pride would not allow it. This had been demonstrated by the events of 11 September 2001 in New York, Pennsylvania and Washington. The Anti-Terrorism Act, 2015 achieves that fine balance. It provides: 106. I would therefore take as my starting point the proposition that the article 5 right to liberty is a fundamental right which belongs to everyone who happens to be in this country, irrespective of his or her nationality or citizenship. 101. There is a third principle which the court must also recognise when it is called upon to perform its central function, which is to strike the balance between the public interest and the right to liberty. A patch of fog on the motorway or a storm which brings down power lines may create a situation of emergency without the life of the nation being under threat. But in some cases it may be perfectly obvious from the outset that it will last for a very long time, perhaps indefinitely. It has an extended meaning - a situation of pressing need. That is the true measure of what terrorism may achieve. This is why a Contracting State is permitted to deprive aliens, who have no right to be in the country, of their liberty for the purpose of preventing their unauthorised entry or with a view to their deportation or extradition. But has he asked himself the right question in his analysis of this material? The primary meaning of the word is an occurrence that is sudden or unexpected. This is because the issue which the Derogation Order was designed to address was not at its heart an immigration issue at all. He pointed out that two aliens who were initially detained under section 23 of the Act have already done so - one to France and the other to Morocco. One was what its effects would be on the individuals who were to be affected by it. In his second witness statement Mr Whalley said that it was considered that the serious threats to the nation emanated predominantly, albeit not exclusively, and more immediately from the category of foreign nationals. 109. The first point that has to be examined is the wording of article 15.
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