Sunday 12 June 2011

Frustrating Deportation

The front page of the Sunday Telegraph runs with a report based on data I received (via Freedom of Information), showing that in 68% of deportation orders blocked on human rights grounds, the applicant relies on Article 8 (the right to family life). The Court Service data is likely to be an under-estimate, because figures from the UK Border Agency show the number of deportation orders frustrated by human rights claims now running at around 400 per year (well over double the total estimate by the courts).

The cases include a man convicted of killing one of my constituents (in a gang attack), who claimed his right to family life to stay in the UK, despite being an adult with no dependants. Then there is the convicted robber allowed to stay because he has a girlfriend (the court described the relationship as 'casual courting'). And one of the latest cases is a drug offender - convicted of beating his girlfriend (they subsequently split up), and who doesn't pay maintenance for his daughter - but, again, claimed his right to family life to avoid deportation to Trinidad.

The data is interesting for three reasons. First, the increasing number of deportation orders blocked on human rights grounds. Second, the rising tide of cases where the applicant relies on the right to family life. The debate used to be about whether we could deport criminals or terrorist suspects where there was a risk of torture - remember the notorious Chahal case from the 1990s? In fact, I am not aware of any case prior the the Human Rights Act, where the UK or Strasbourg courts blocked deportation of a convicted criminal under Article 8 of the European Convention on Human Rights (ECHR). The Law Lords have themselves acknowledged that the shifting goal posts have moved as a result of judicial rulings in our own domestic courts. So, this is a very clear example of the Human Rights Act giving judges licence to expand human rights - without proper democratic accountability by Parliament's elected lawmakers. (Strasbourg now appears to be following the lead of the UK courts in blocking deportations using Article 8.)

Third, the courts are not just expanding the rights in the ECHR. They are re-writing them. After all, paragraph 2 of Article 8 expressly permits substantial qualifications on the right to family life for the purposes of law enforcement and public protection:

"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. "

I have written about this problem - and made recommendations for tackling it - here. Within the current coalition, I doubt we will be able to achieve a Bill of Rights to replace the Human Rights Act, or at least one that will remedy its flaws. For that reason, I have made more modest proposals to amend the Human Rights Act - and the UK Borders Act 2007 - proposals which are more likely to gather cross-party consensus in the short term. My worry is that if we leave this issue for another 5 years, the goal posts will have shifted even further - making the deportation of serious criminals and terrorist suspects even more difficult. That is tantamount to importing risk, which will further undermine public confidence in our border controls and human rights laws.


Post a Comment

The site policy is to publish all comments, unless abusive or anonymous.

Welcome to Dom's Blog

To sign up for my monthly bulletins, click here.

For my Privacy & Cookies policy, click here.

Dom's Podcasts

Watch Dom's Hardtalk interview here.

To watch Dom's recent podcasts, visit his You Tube channel here.

Local Campaigns

Local issues, National debate

Blog Archive

Follow Dom on Facebook