Could human rights save X Factor’s Gamu?

6 October 2010 by

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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  1. Saxton says:

    I feel people should not mix politics of Zimbabwe and the UK in dealing with this case. Let us get the facts right here, Gamu’s mother came to the UK as a student on a student visa, her stay in UK had nothing to do with the human rights issues in Zimbabwe. She is someone who came to the UK to look for greener pastures.

    If she is to go back to Zimbabwe, I honestly feel that she will not be in any danger as she left the country wilfully to seek a better life.

    I bet Mugabe did not even know this family until recently when Gamu got involved with the X Factor. Let us not politicise a simple immigration issue.

    Immigration rules should be applied evenly and this case deserves no special treatment simply because someone has a sweet voice. That does not warrant the UK to change its immigration laws.

    The fact that Zimbabwe is poverty stricken does not also have a bearing on this case as intimated by this blog’s opening remark. If Gamu’s mother is wise she should be having some savings and can go back to Zimbabwe and start a new life with her children back home.

    Unless if we are saying that this family no longer wants to go back to their country of origin, then that is another issue. Gamu’s mother had a visa that had an expiry date and she should understand that extension of stay is subject to renewal and approval.

    I agree with ‘bikerforbritian’ that The Home Office is simply doing their job.

  2. bikerforbritian says:

    here wego again, we complain about the number of immigrants sponging off our treasury all the time but when the government go to take action the people are up in arms, if they are not supposed to be here then they should go home

  3. kevh says:

    We can`t deport terrorists because of their human rights.Why should this family be deported back to a country that does not recognise human rights?.They don`t come across as scroungers and Gamu is a fantastic example to yong people and could win the x factor.If anyone watched Gamu singing in the choir they would see why she is valued so highly.Any money paid by an oversight would be refunded.They should be given an opportunity to succeed.Mr Mugabe would consider it a publicity coup if they had to go back to Zimbabwe. Boris Johnson has up to 600,000 overstayers in London alone and wants an amnesty.This family are being scapegoated for all the others who they can`t deal with.Their high profile thanks to Gamu is an attempt to make people think we are tough on immigration when in fact it has been shambolic for the last 10 years at least.They deserve a chance of appeal to make their case.

  4. Masked Marvel says:

    I think that a stronger argument is that due to her age, and the fact that she has spent a significant part of her childhood in the UK, extremely serious reasons (e.g. extreme criminality) would be necessary for removal to be proportionate.

    There is a long line of Strasbourg authority to this effect, and the Court of Appeal are increasingly taking notice – e.g. Uner v The Netherlands and JO (Uganda) and JT (Ivory Coast) v SSHD [2010] EWCA Civ 10 and MJ (Angola)) v Secretary of State for the Home Department[2010] EWCA Civ 557.

    UKBA seem a bit slow in working this into their caseworking though.

  5. Saxton says:

    I the think there is need for people to look at this issue from alegal point of view. There mere coincidence of the events should not lead us astray to think that there was foul play here.

    I am an African and I know how it feels to be in this unfortunate position. The Home office has the right to exercise its duty and deport those who do not qualify to be staying in the UK. It’s the rule of law in simple terms

    The matter has been made bad by the fact that the victim’s mother messed the claim system and this is not a good idea considering that she was benefiting from public funds.

    When the coalition government is cutting costs i do not foresee sympathy from the angry citizens. I was interested by this blog.

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