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.

Tags: Human Rights Act, Law, Theresa May