May's article in The Mail on Sunday:
May's article is
hard-hitting and highly critical of the judiciary. It also contains major inaccuracies. May argues that, 'unless there are very exceptional circumstances, foreigners who have committed serious crimes in this country, or who have attempted to cheat the immigration system, should be deported from Britain.' Too often, this was not happening because 'some of our judges appear to have got it into their heads that Article Eight of the European Convention on Human Rights, the ‘right to family life’, is an absolute, unqualified right.'
This is very disingenuous. There cannot be a single member of the judiciary who actually thinks that Article 8 (Right to RESPECT for family life) is an absolute right. It is plainly a qualified right - the qualifications being in Art. 8(2):
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.
The problem for Mrs May with this line of argument is that, whilst there was a debate in the Commons, it is a well established constitutional rule that a vote in a single House of Parliament does not make law. The ultimate law maker for the UK is 'The Queen in Parliament.'
The Immigration Rules are well respected by the judiciary and are applied on a daily basis but the rules are not legislation. The Rules are a Ministerial statement as to how the Crown proposes to exercise its executive power to control immigration - see decision of the House of Lords - Odelola SSHD  UKHL 25. The Rules are essentially executive and not legislative though failure to follow the rules may be a ground of appeal against a deportation decision. Under the Human Rights Act 1998, the judges are obliged to take into account the European Convention and the relevant case law on it. Hence, the Immigration Rules are not the only material to be considered in making deportation decisions.
It is open to Parliament to legislate contrary to the European Convention on Human Rights though very clear words would be needed to make such an intention clear. Such a course would require Ministers and members of Parliament to face squarely up to their responsibilities and not seek to blame others. Perhaps that is too much to ask of an ambitious politician?
Human Rights Act 1998
Immigration rules It is worth noting that para. 2 of the Introduction to the rules states - Immigration Officers, Entry Clearance Officers and all staff of the Home Office Immigration and Nationality Directorate will carry out their duties without regard to the race, colour or religion of persons seeking to enter or remain in the United Kingdom and in compliance with the provisions of the Human Rights Act 1998. (The emphasis is mine). Given that the staff are required to operate that way, then why complain when the judges do so?
Law and Lawyers 11th June 2012 - Theresa May's latest lecture: immigration rules.
Upper Tribunal (Immigration and Asylum Chamber) - Iuazu (Article 8 - New Rules) - (Judgment) - a full reading of the judgment is essential for a detailed understanding of the approach taken by the Tribunal to the Immigration Rules. Note para. 85 - Taking all the facts found below in the claimant’s favour into account, it is clear that the Secretary of State’s decision is in accordance with the rules and the applicable policy and is not unlawful. In our judgment it is taken in support of a legitimate aim of protecting public order and the rights and freedoms of others, is a proportionate and fair balance in all the circumstances and thus a justified interference with Article 8 rights.
Iuazu is a Nigerian citizen. Where EU citizens are concerned, there are particular rules - see Deportation cases.
The Izuazu case was considered by Rosalind English on the UK Human Rights blog - Another critique of the new immigration rules' codification of Article 8. English concludes by noting that the Tribunal did not wish to be 'boxed in' by the new rules but would decide cases under what it understands Article 8 to require.
UK Human Rights blog - Why the Home Secretary's attack on human rights judges is like a Bakewell tart
UK Human Rights blog, Dr Mark Elliott (Reader in Public Law, Cambridge) argues that the Home Secretary needs a 'reality check' about human rights.