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Government will appeal controversial immigration decision

18 February 2013

6:34 PM

18 February 2013

6:34 PM

Further to the row that has erupted between Theresa May and some judges over the deportation of foreign criminals, the government is understood to be applying to appeal the case of MF. The Home Secretary is plainly confident that her arguments will be well received in the Court of Appeal, having been found wanting in the Upper Tribunal (Immigration and Asylum Chamber).

The issue of deporting foreign criminals has been cast by some as a disagreement between senior judges and their more activist juniors, and not merely a clash between different arms of government. Theresa May’s team have been at pains to point out that the majority of senior judges support her case. Indeed, May quoted a High Court judge in her Mail on Sunday article:

‘the new rules are “unquestionably valid laws, democratically enacted under a procedure which is necessary for the efficient practical functioning of Parliament.”’

Mr Justice Mostyn wrote those words in a recent judgment on an application for the judicial review of an immigration case. There Mostyn was responding to a minor point about ‘democratic content’ made by the claimant’s counsel, who had advanced ‘a generalised challenge to the democratic credentials of the rules as a whole’. Mostyn rejected the point:

‘They are made by a democratically elected representative serving as Home Secretary; they are laid before Parliament; and they can be overturned by a Parliamentary vote. Sometimes, as was the case in relation to the July 2012 changes, they are the subject of a Parliamentary debate and vote.’


This argument about the democratic legitimacy of the rules is not really relevant to the current row. The judges quoted in this morning’s Times (£) do not doubt that the rules have democratic content; the question is whether Article 8, which is the relevant piece of primary legislation in the present disputes, can be overridden. The general view, at least according to those prominent voices quoted in the Times, is that the rules do not supersede the Human Rights Act, and that it is inappropriate for the Home Secretary to interfere.

The government has promised to introduce primary legislation if the changes to the rules did not have the desired effect. There has been much speculation about what that legislation would provide. One possible route, which the government is understood to be examining, is to repeat the formula adopted in the UK Borders Act (2007). This includes a presumption of deportation for those foreign nationals who have been sentenced to a year or more.

The courts have had no problem with the presumption because the deportations have to be consistent with the European Convention of Human Rights (ECHR)*. In this case, the government’s draughtsmen would have to construct legislation that enables judges to override Article 8 in certain circumstances yet still comply with the ECHR. It would apparently redeploy the arguments it used when changing the immigration rules. Put very simply, the government’s case is based on the fact that Article 8 is not absolute. Restrictions ‘necessary in a democratic society’ can be applied in accordance with law. The government says, not unreasonably, that deportation is one such necessity in certain cases to protect public safety and economic interests (this is a matter of fraudsters and thieves as much as rapists and murderers).

On the other hand, the right applies to ‘everyone’ – it is absolute in that sense. And there is the question: whose rights? The rights of the family must be considered in addition to the rights of the foreign criminal, recalling the old words about the sins of the father being visited on the son.

The government’s challenge is enormous, but that does not mean it’s impossible – and the government is evidently confident that it can work a solution.

*This gives judges considerable power of discretion as they decide what is or is not consistent with the ECHR. And it is here that the working example of the UK Borders Act runs into trouble, because, as Adam Wagner (the editor of the excellent UK Human Rights Blog) notes, the Home Secretary’s intention this time round is to limit judicial independence by making judges follow the clear immigration rules as per the ‘wishes of parliament’. This is why so many judges and lawyers reacted so violently to May’s article, and why so many attacked her notion of the ‘wishes of parliament’ with the reference to the unassailable position of the Human Rights Act and the ECHR.

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Show comments
  • Andrew Taylor

    They should have thought about their rights before committing the crime.

  • realfish

    The deportation of criminals in no way denies anyone the ‘human right’ to a family life. They simply take their new family* / Staffordshire Bull Terrier / bunny rabbit home with them.

    As for the spouse / partner of the criminal, ‘caveat emptor’ comes to mind.

    * Delete as appropriate


    Mrs May in her speech to conference threw up on screen Article 8.

    8a – right to family life
    8B – RESTRICTIONS to allow factors such as NATIONAL SECURITY to be taken into account.

    Can’t remember exact details but reaction was that this would give us all we need.Can’t see why Mrs May going down statute route when what is needed is for judges to apply ECHR as WRITTEN.
    Also nothing to stop dependents returning with deportee to his/her country of origin – Why have judges NOT given decisions that reflect this. Nothing in ECHR about people being entitled to 1st World standard of living.
    40 years ago judges were regarded as verging on authoritarian. How have we got to situation where principle ‘SALUS POPULI SUMMA REX’ (Roman expression – ‘SAFETY of the people the supreme law’) – is routinely flouted by judges who receive large salaries from the taxes we pay?

    • peterjack12

      Yes Christopher, article 8b clearly states this, and the details list so many restrictions that there should be no problems with finding legal reasons for deporting any criminal. And yet I’ve not heard one politician or judge ever mention it — why?

  • Roy

    One wonders sometimes at the mental stability of the people responsible of so many laws passed during a rush of blood to the head. Then repented at leisure over a decade or so later, when anyone with an ounce of grey matter could have told them at the time. But no; much like the dedicated enthusiasm of going into Europe, having survived since the Romans left, developed an empire of our own and disposed of it, we now find we need the ones we have criticized and fought against for so long. We also find, but it is not playing cricket to talk about it, that it has been deemed necessary for vast amounts of immigrant people to be added to the population. For saying we are perhaps the home of modern democracy, no consultation was offered that population. Is it not surprising the present law makers foul thing up when they don’t think to consult first?

  • itdoesntaddup
    • Roger Hudson

      I read the article, the Borders Agency (another not-fit-for-purpose outfit) will always go for the easy targets, without weighing the merit . Their response in criminal cases is pathetic, too difficult probably.

  • toco10

    The problem is that lawyers in general and judges in particular think they are more important and intelligent than the rest of us and that they are in charge rather than us mere mortals.The Government must change laws so as to avoid ambiguity but placing a restriction on hourly rates and a maximum per case would in my humble opinion encourage more reasoned decisions.

    • telemachus

      Not at all sure I want a government without an independent judicial brake

      As I have posted before that leads to Franco, Pinochet and Galtieri and eventually the disappeared

      • Colonel Mustard


      • Roger Hudson

        Government and a proper sovereign parliament are not the same, just because people like Blair ( most guilty example only) tried to destroy or ignore Cabinet government and parliamentary democracy doesn’t mean we need judges to clean house for us.

  • David Webb

    Why are journalists so uniformly illiterate? You appeal AGAINST a judgement. David Blackburn, get an O level.

  • Roger Hudson

    It is time for parliament to show what ‘sovereign parliament’ means. a simple Act, call it the Act of Supreme Rights, reaffirming that Westminster makes the Laws of the UK&NI and no other body, devolved or international can superimpose any laws or rules that is in opposition to it.
    Treaties can be repudiated, laws repealed and Britain can get its true liberties back, this is the sort of thing that caused revolutions. Get it done.

    • LB

      The problem is that the government can’t write laws for peanuts.

      So, make a list of the cases you want reversed. Lock the judges in a room until they write a law that stops the government from losing the cases.

      Then pass the law. Make it retrospective, and kick out the ‘winners’.

      Judges can’t go against a law they have written.

      • telemachus

        I suppose you could lock them into a room until they wrote a law denying work to selected ethnic minorities
        Next year a better law might restrict where those ethnic minorities live
        After all do we actually want to live or work next to these people

  • telemachus

    Article 8 – Right to respect for private and family life

    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.

    Just who would want to override these provisions which may one day protect us from a repressionist administration

    • HooksLaw

      And its the judges who over elaborate on those rules which are the ones who
      encourage a repressionist response.

      Its clear that the clause is there to prevent some sort of dictatorial intervention as opposed to what are the clear expressions of the will of the people by parliament.
      It says no interference by public authority ‘except’ (‘EXCEPT’!!!) as is in accordance with the law and is necessary for etc.

      The clause clearly and among other relevant words cites ‘disorder or crime’.
      It is the judges who are overriding the provisions to peddle their own opinions.

    • LB

      So lets take one of the winners.

      Learco Chindamo. Italian. Stabbed a head master to death. Why shouldn’t he be deported for public safety? Given the cost of imprisonment, benefits etc, it aids the economic well being of the country. Prevents crime. Protects the rights and freedoms of other UK citizens. [That’s one change I would make. The rights and freedoms of other UK residents].

      If he wants to see his mother, nothing stopping her from visiting in Italy. Just the same as the families of criminals in the UK. They have to go and visit their family in prison.

      =========== Wikipedia
      In August 2007, an Asylum and Immigration Tribunal ruled that Chindamo could not be deported to his home country of Italy on completion of his prison sentence, as doing so would breach his human rights.[6] Although the Home Office argued that Chindamo presented a “present and serious threat” to society, the tribunal disagreed; they also argued that Chindamo had a right to a “family life” under the terms of the Human Rights Act 1998.[7]

      That’s a pretty good example of where the courts have it wrong.

      • Daniel Maris

        If judges are so confident of their judgements that person X is not a danger to society why don’t we ask them to put up 1% of their pension on person X not reoffending in the next 10 years when it comes to serious offences. I think we might then see a slightly different approach from judges. A slightly more realistic risk appraisal.

        • LB


    • Roger Hudson

      Re-read 8.2, it makes it clear that the ‘right’ in 8.1 is not supposed to override the rights and freedoms of others or societies interests. How can some judges or lawyers not understand that, my degrees were not in law but it is quite clear to me.