No laughing matter
Date: 21 October 2011
Authors: Geoffrey Bindman
Issue: Vol 161, Issue 7486
Categories: Opinion, Human rights
The prime minister and the home secretary are pursuing a campaign of opposition to the Human Rights Act 1998 (HRA 1998), which they blame for preventing the deportation of foreign criminals. The illustrations on which they have based their complaints have repeatedly misrepresented the facts. As the world now knows, the home secretary referred at the Conservative party conference earlier this month to “the illegal immigrant who cannot be deported because—and I am not making this up—he had a pet cat”. This was untrue. If the home secretary did not make it up someone made it up on her behalf. The immigrant had a cat but the Judicial Communications Office issued a statement pointing out that the cat had nothing to do with the decision. The lawyers in the case confirmed this. Nor did the case involve a criminal conviction. The immigrant was a student seeking leave to remain in the UK because he had established a long term relationship (over four years) with a British citizen.
The lord chancellor, Ken Clarke, who throughout this affair has behaved honourably and honestly, said that Mrs May should “address her researchers and advisers very severely” for providing her with a “nonsense example”. Yet, far from correcting her error, she repeated it, saying: “I don’t regret using the case of the cat. It was a decision made by an immigration judge.” The prime minister has supported her.
Facing reality
The reality is that, where deportation is refused as a result of the application of Art 8 of the European Human Rights Convention (the Convention), decisions are generally consistent with ordinary common sense and decency. Article 8, protecting the right to family life, has been binding on the UK since 1950 and will continue to be so whatever the fate of HRA 1998. Article 8 is far from absolute. The government may override it “in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. It therefore requires a balancing exercise which the courts have carried out conscientiously.
The public good
The home secretary has long had the power to remove foreigners whose presence in the UK he or she deems “not conducive to the public good”. This power was made statutory in the Immigration Act 1971. That Act also authorised deportation of a person over 17 who has been convicted of an imprisonable offence. In both cases, however, until recently, the rules required the public interest to be balanced against any compassionate circumstances. In effect, Art 8 requires no more than that.
Judges also have the power to recommend when sentencing that a convicted prisoner be deported after completion of the sentence. After it came to light in 2006 that the Home Office had failed to consider or implement such recommendations in a number of cases, the rules were tightened and deportation became compulsory for non-British citizens over the age of 17 sentenced to more than 12 months in prison, except where it would be in breach of the European Convention on Human Rights and the Protection of Refugees.
The right to expel an alien
In interpreting Art 8, both European and UK judges have developed principles which recognise that a state has the right to expel an alien convicted of one or more criminal offences in order to maintain public order and safety. But a decision to remove or deport must be necessary and proportionate to the aim pursued. The Human Rights Futures Project at LSE has recently reviewed the case law. It identifies factors to be taken into account as follows:
- The nature and seriousness of the offence and the time elapsed since it was committed.
- The length of time in the country and the solidity of social cultural and family ties with the host country and the country of destination.
- The spouse (if any) and if there are children, their ages, best interests and well-being—and the seriousness of the difficulties they are likely to encounter in the destination country.
The LSE review also demonstrates that wildly inaccurate figures have been published in the Daily Mail about the number of successful appeals against deportation. Ministry of Justice figures show that in 2010, 102 out of 850 appeals against deportation to the Immigration and Asylum Tribunal were successful, ie 12%. The home secretary has announced that there will be changes in the Immigration Rules to make it more difficult for those convicted of offences to avoid deportation. When one views the current situation as a whole, it is hard to see any justification for doing so.
Some government spokesmen (including Damian Green the immigration minister) have brushed aside the cat story as a trivial joke. It is a silly story in itself but it needs to be seen as part of a concerted attempt to denigrate HRA 1998 on spurious grounds. Mr Cameron and Mrs May have allowed themselves to pander to xenophobic elements in their party.
As Ken Clarke has pointed out, the commission which is “helping us to form a view on this are not going to be entertained by laughable child-like examples being given”. The commission referred to is that set up by the coalition under the co-sponsorship of Ken Clarke and Nick Clegg to examine a possible British Bill of Rights, which is due to report by the end of next year. It may be expected to form a more balanced and accurate view of the effect and value of HRA 1998 and the Convention than we have been hearing from Mr Cameron and Mrs May.
Sir Geoffrey Bindman QC, consultant, Bindmans LLP
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