Could human rights save X Factor’s Gamu?

6 October 2010 by Adam Wagner

Updated Gamu Nhengu, a popular former-contestant on the X Factor TV series, has been ordered to leave Britain. In a recent human rights ruling, the Court of Appeal said that ‘value to the community’ can be taken into account in immigration cases. Could having the ‘X factor’ amount to value to the community?

Ms Nhengu, originally from poverty-stricken Zimbabwe, was rejected from the show’s final audition round, apparently as a result of her immigration status rather than her talent. The Daily Telegraph reports:

… on Tuesday night the Home Office confirmed her family had been sent an official letter telling them to leave Britain. The order was the result of an investigation into £16,000 in benefits wrongly claimed by her mother, Nokutula, The Sun reported. Nokutula was denied permission to remain in the country and Gamu and her two brothers will also be forced to leave because they arrived on their mother’s visa, the Home Office confirmed.

The full details regarding the 18-year-old’s immigration status are not known, and until they are it is impossible to say whether she has a chance of staying. However, if she were to make a fresh application on her own part for leave to remain, a recent case in the Court of Appeal (see our post) may be of assistance. The Court of Appeal held in  UE (Nigeria) and Others v Secretary of State for the Home Department that in deciding whether the removal of a person from the UK is compatible with their human rights, their value to the community can and in many cases should be taken into account.  Sir David Keane, who gave the judgment, explained how this would work:

… a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise.

He went on to say that

None of this means that the individual is being rewarded for good behaviour. It goes instead to the strength of the public interest in his removal and how much weight should be attached to the need to maintain effective immigration control in his particular case.

The question of “public value” is somewhat subjective, but the judge stressed that he would only expect the factor to make a difference in “relatively few instances where the positive contribution to this country is very significant“.

As Matt Hill pointed out in his post, even “considerable” value to the community is not a trump card: “this judgment was qualified by indications from the judges that, in practice, this factor is unlikely to carry much weight in the decision-maker’s evaluation.” The judge cited a previous House of Lords (now the Supreme Court) case in which Lord Bridge gave possible examples as being, for example, the deportation of a vital member of a scientific research team or a key member of a business partnership.

Of course, value to the community is just one of the factors which would be considered as part of the Article 8 (right to family life) balancing exercise. Also in Ms Nhengu’s favour would be her close ties to the UK: she has spent 8 years of her childhood in Glasgow. The Court of Appeal recently stressed that in such cases there should be a “proper appreciation of the special situation of those who have been in the host country since childhood“. However, this would be balanced to some extent by the fact that Ms Nhenghu’s family would be moving with her.

It has been said that the Human Rights Act only protects terrorists from deportation. The truth is that the rights enshrined under the act are universal and, in all immigration cases, it is a court’s task to balance the good of the community against the rights of an individual. It may be that in this case Ms Nhengu’s family have exhausted all of their options due to her mother’s benefits issues. The Guardian reports that the family “do not have a right to appeal” and the singer “cannot apply separately to remain in this country“. But the UE (Nigeria) case could potentially open the door to a fresh application either from Ms Nhengu or her mother, on the basis of new facts. Even given the Court of Appeal’s reservations about the weight which would be given to value to the community considerations, this would be a highly unusual case as there is such strong evidence that the ‘community’ want her to stay. The 217,000 fans who have pledged their support should count for something.

Update, 7 Oct: The BBC report that Ms Nhengu and her family are seeking to judicially review the UK Border Agency’s decision to expel the family from the UK. They are still awaiting a written decision to review, however.

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Read more:

• Previous posts on immigration/extradition
• The future of human rights, a decade on
• Value to the community can be taken into account in immigration cases