Failure to deport Philip Lawrence killer was not about human rights

29 November 2010 by

It has been widely reported that Learco Chindamo, who was convicted of killing headmaster Philip Lawrence in 1995, has been rearrested only months after being released from jail. The story has reopened a debate over the Human Rights Act, on the basis that it prevented Chindamo from being deported to his native Italy. But did it?

In fact, what the case really highlights is that the unpopularity of the Human Rights Act is in part due to inaccurate media reporting of human rights cases, even 10 years after it came into force.

The Telegraph reported at the end of last week that Frances Lawrence, Philip Lawrence’s widow, has urged the prime minister to act on his previous pledges to scrap the Human Rights Act, as

The Government had been prevented from deporting Chindamo to Italy, where he lived as a child, because of the Human Rights Act. He was freed in July and allowed to live in Britain.

The newspaper repeated the claim in an editorial arguing that Britain must make its own human rights laws. The story was subsequently picked up elsewhere. In an article entitled Human Rights are all wrong, Fiona McIntosh of the Mirror said that Chindamo “will not be deported back to his native Italy because of his “human rights”. Now Frances Lawrence “is facing up to a lifetime haunted by her husband’s killer because his “human rights” are considered more important than her own.”

But Chindamo’s case was not really about human rights at all. As was widely reported at the time of the tribunal decision in 2007 , Chindamo’s arguments under the Human Rights Act played second fiddle to the main thrust of his case, which was centred on of EU freedom of movement law: namely, the Citizens’ Directive 2004.

Article 28 of the 2004 Directive, which the UK implemented into its domestic law by way of the Immigration (European Economic Area) Regulations 2006, provides protection for union citizens against expulsion. It ensures that certain factors are taken into account before a union citizen is expelled from another member state, and ensures that a state cannot expel a union citizen who has been resident there for over ten years unless on “imperative grounds of public security”. Moreover, a state cannot expel a union citizen who has a right of permanent residence there “except on serious grounds of public policy or public security”.

With its attention focussed on the 2004 Directive, the Asylum and Immigration Appeal Tribunal ruled in LC v Secretary of State for the Home Department that, despite having been in the UK for 19 years, Chindamo had “resided” in the UK within the meaning of the Directive for less than 10 years, as 10 of those years had been spent in prison.

However, he had acquired a right of permanent residence in the UK after 5 years, and as such the secretary of state had to show the expulsion decision could be justified on grounds of public policy. Ultimately, the tribunal was unconvinced. The fact that he had been convicted of murder did not, on its own, justify expulsion, and the tribunal concluded, taking into account a number of different factors including the life he had built in the UK, “that there do not exist grounds of public policy in this case which justify exclusion” (paragraph 96).

The tribunal did go on to consider whether the expulsion would have constituted a breach of Chindamo’s Article 8 (private and family life) rights under the European Convention on Human Rights. Only in exceptional circumstances will Article 8 be engaged by the relationship between an adult appellant, his mother and grown-up siblings. However, this was such an exceptional case and the expulsion of a 26-year-old who had lived in the UK since he was age 6 would be a breach of his rights.

So although human rights were considered in Chindamo’s case, and he succeeded in his arguments, even if he had lost on human rights grounds the UK would still have been prevented from deporting him because of EU freedom of movement law. Moreover, despite saying it would at the time, the secretary of state appears not to have appealed the decision. It almost certainly would have had the case been fought and won solely on the basis of the Human Rights Act, since the right to family life aspect of the decision was unusual and may well have been overturned if it reached the court of appeal. But it is likely that the government realised it would be much more difficult to overturn the main thrust of the decision, the 2004 Directive.

To be fair to the Telegraph, an in-house blogger has argued since the original story that the HRA had little bearing on the Chindamo case, but she missed the central point: that Chindamo’s right to family life argument was secondary to his main case, and if he had lost on that point he would still have won the appeal.

The Human Rights Act has prevented some people being deported to other countries, the most notorious recent example being two suspected terrorists who could not be sent back to Pakistan as there was a real risk they would be tortured. Some may argue that such men should be automatically expelled, despite risks of torture. Or that at least convicted murderers such as Chindamo should be expelled without impunity. But the Chindamo case shows that if they are European Union citizens, European freedom of movement law, which the UK has willingly signed up to, would simply not permit automatic expulsion of the kind recently legislated in non-EU Switzerland. For Chindamo, human rights were relevant, as they are in all expulsion cases, but they were peripheral.

The case demonstrates how inaccurate reporting of emotive cases involving human rights often serves only to fuel the act’s unpopularity. It is unfortunate but perhaps unsurprising that cases are misreported in the hours after long and complicated rulings are released. But there can be no excuse three years after the event. There are legitimate debates over the costs and benefits of the Human Rights Act, but accurate reporting would at least ensure that the debate remains fair.

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