Wednesday, 20 February 2013

Theresa May to 'curb' judges on immigration ~ Some Observations

Immigration is of considerable concern both within the country and to government and it is obvious that population growth places additional pressures on infrastructure and resources.  The accession to the European Union of Romania and Bulgaria (from 1st January 2007)  has helped to fuel the concerns given the EU's rules relating to freedom of movement for workers.  Quotas applicable to those countries expire at the end of 2013 with fears of large numbers then arriving in the UK and, according to the German Association of Cities, importation of crime.  There is also considerable immigration from non-EU nations.  The government set a target of reducing annual net migration to below 100,000 by 2015.  It appears unlikely that this target will be achieved though figures show a reduction - The Guardian 29th November 2012  Much political capital therefore exists in this area and it is little wonder that politicians seek to generate headlines - as did Home Secretary Theresa May - Mail on Sunday 17th February - It's MY job to deport foreigners who commit serious crime

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):

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. 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.
May thought that possibly the problem for the judges was that Parliament had not explicitly stated how the right to  family life could be restricted. In June 2012, she asked the House of Commons to debate her amendments to the immigration rules.  Those amendments stated that in the usual case, any foreign national who was convicted of a serious crime should be deported, regardless of whether or not the criminal had a family in the UK.   The Commons adopted the changes.  At the time, Mrs May made it clear that she would introduce primary legislation should the Commons’ acceptance of the amendments not be sufficient to persuade judges to change the way they interpreted Article 8.

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 [2009] 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 may well be that Mrs May will bring forward legislation.  Once a Bill is enacted by both Houses , Royal Assent follows and an Act is created.   The Act is then applied by the judiciary.  However, the judiciary has been commanded to apply the European Convention on Human Rights when it interprets Acts of Parliament - (Human Rights Act 1998 s.3)

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?

Other material:

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. 

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