Theresa May, Deportation and Article 8, by Ed Mynott
At the recent Conservative Party conference, Home Secretary Theresa May announced changes to the UK’s Immigration Rules:
"That is why I remain of the view that the Human Rights Act needs to go. And I can today announce that we will change the immigration rules to ensure that the misinterpretation of Article 8 of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here."
Those not paying close attention, within or without the Conference, might have assumed that the Home Secretary’s announcement of changes to the Immigration Rules for those facing deportation after conviction for a criminal offence, or those facing removal from the UK after entering illegally or overstaying, would prevent such individuals from relying on the existence of family life as a reason why they should be allowed to remain. Those not familiar with actual cases other than through media reporting (or mis-reporting) will commonly assume that the mere establishment of private or family life in the UK in itself prevents the deportation or removal from taking place.
However, that is not the case and for those with even a basic understanding of the law, it is obvious why the announcement met with the barely disguised contempt it did from Justice Minister Kenneth Clarke. This is not simply a political difference, for or against the Human Rights Act. One would expect these two ministers to disagree on that. Rather, the Home Secretary’s announcement seems to betray such a complete misunderstanding of the law that it is difficult to take the speech seriously.
It is important to be clear about the status of the different sources of law involved. Article 8 of the European Convention on Human Rights is well known:
Everyone has the right to respect for his private and family life, his home and his correspondence.
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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.
Article 8 is not absolute, unlike the prohibitions on torture for example (Article 3) or slavery (Article 4). To put it simply, where a private and family life is established, there is a balancing exercise between the legitimate aims which can, in principle, justify a decision by the government to deport or remove a person, and the personal circumstances of the individual. The assessment of whether a given decision is ‘necessary in a democratic society’ is often referred to as the assessment of proportionality. Whether the decision is proportionate or disproportionate is what most cases boil down to. Ultimately, that is the decision which the Home Office must make in the first instance and which an Immigration Judge will have to review if a Home Office decision gives rise to a statutory right of appeal. If the decision-maker concludes that the decision would constitute a disproportionate interference with a person’s private and family life, it is prohibited by Section 6(1) of the Human Rights Act:
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
It was famously the Human Rights Act which incorporated most of the European Convention on Human Rights into UK law. This does not mean that prior to the Human Rights Act, the provisions of the Convention had no effect in the UK. The ECHR is the product of the Council of Europe founded in 1949. The UK was a founder member of the Council of Europe, and ratified the Convention way back in 1953. The Convention also set up the European Court of Human Rights which was recognised by the member states, including the UK, as the supreme judicial authority in interpreting the Convention and safeguarding the rights protected within it. What the Human Rights Act did was to allow British tribunals and courts to declare that, because a decision was incompatible with a Convention right, it was unlawful under UK law. It thus allowed British judges to determine human rights breaches – albeit, an individual retained a final right of appeal to the European Court.
We can see then, that whether an interference with private and family life is disproportionate is a decision made with reference to UK statute, public international law in the form of the Convention and the decisions of the European Court of Human Rights. Decisions attracting a right of appeal to an Immigration Judge have in the past progressed through the tribunal system to be endorsed or overturned by the Court of Appeal (Court of Session in Scotland) and the House of Lords, now the UK Supreme Court. So the UK’s own courts have applied the principles developed in the case law of the European Court of Human Rights without cases having to be referred to the European Court.
Two other pieces of statute will often have a direct bearing. The first is the UK Borders Act 2007. Under the Act, a criminal conviction carrying a custodial sentence of 12 months or more results in automatic deportation unless the individual can show a breach of their rights as protected under the Refugee Convention or the European Convention on Human Rights. The second is section 55 of the Borders, Citizenship and Immigration Act under which the Home Office as a public authority must safeguard and promote the welfare of children. This and other sources of law were recently interpreted by a groundbreaking decision of the UK Supreme Court in the case of ZH (Tanzania) [2011] to conclude that in any case affecting children, the best interests of the child must be considered first and are a primary consideration. In the words of Lord Kerr:
So where does this leave the UK’s immigration Rules? You may well ask. As Lord Hope put it:
The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. ( [2009] UKHL 25, Lord Hope (§6) )
The Immigration Rules are made by the Home Secretary under the power conferred by the Immigration Act 1971. The Rules act as administrative guidance to first instance decision-makers in the Home Office. Perhaps the Immigration Rules have hitherto tilted the balance away from deportation? In fact, the Rules already tilt the balance in favour of deportation. Immigration Rule 364 says this:
while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.
So the mystery of the Home Secretary’s announcement is how the proposed change to the Immigration Rules will make any significant change to the assessment of deportation or removal cases. For reasons of internal coalition politics, the Human Rights Act is not about to be repealed, nor is the UK proposing to abandon the Council of Europe. Moreover, although it is important not to fall into the gross error of confusing the Council of Europe with the European Union or confusing the European Court of Human Rights with the Court of Justice of the European Union (which rules on the interpretation and application of the EU treaties) there has been a significant development since the coming into force of the Lisbon Treaty in 2009. Without being overly simplistic, the European Convention on Human Rights is now a source of law to be relied on within EU decision-making by the executive and the judiciary within the member states as well as by the Court of Justice of the EU.
So if the Home Secretary and others seriously believe that judicial decision-making in this area is wrong and intend to take meaningful action, we should expect proposals by the Coalition government in the Queen’s speech for the UK to leave the Council of Europe - joining Belarus, Kazakhstan and the Vatican City as the only European states outside the Council; to renegotiate the Lisbon treaty or tear it up; and repeal various Acts of Parliament. Alternatively, we will have changes to the Immigration Rules which leave untouched the existing legal framework but delighted the Conservative Party conference during a wet week in Manchester.