Immigration and deportation decisions are regularly used to attack the Human Rights Act, and are raised as examples of why it must be amended or replaced. But a recent deportation case shows that such decisions are often poorly reported and articles ignore crucial details.
Yesterday’s Sunday Telegraph reported on the case of a man who killed a Gurkha soldier’s son and cannot be deported because of human rights law. According to David Barrett, Home Affairs Correspondent, the controversial decision will “intensify pressure” on the prime minister “who has so far failed to deliver a Conservative promise to rip up the Human Rights Act.”
There are a number of key details missing or effectively ignored by the article.
First, the title: Killer of Gurkha’s son wins right to stay in Britain. Whilst much is made of the victim’s Gurkha background, it is not until towards the end of the article that it is revealed that Rocky Gurang, the appellant (referred to in the article as “the killer”) who had been convicted of manslaughter, himself was the son of a long-serving Gurkha soldier. This fact is made clear in the first paragraph of the Upper Tribunal decision itself (RG (Automatic deport Section 33(2) (a) exception) Nepal), and forms the essential background of the appellant’s case under article 8 of the European Convention on Human Rights (the right to private and family life).
The appellant’s father was granted indefinite leave to enter and remain in the UK in 2005 after serving with the Gurkhas for 18 years. His immediate family also relocated to the UK. This background was central to the decision, and his father – who was working as a bus-driver, paying the mortgage on his house in the UK, as well as supporting his son financially – gave evidence that he and his wife would have to return to Nepal with their son if he were deported.
A second aspect which is not made clear is the reasons for the decision not to deport. Much is made of the emphasis placed on the appellant’s family life, but it is also important to understand what this was being balanced against: namely, public safety. According to the article, Rocky Gurung and a gang of friends threw Bishal into the river in what the trial judge described as an “unprovoked and senseless episode” However, the Tribunal stressed the criminal trial judge’s sentencing remarks:
there was no premeditation, there was no weapon carried or used, there was no intent to cause really serious bodily harm, and the appellant on the evidence recorded by the judge in his detailed sentencing remarks, had not instigated the act which caused death, namely throwing the deceased into the Thames
The tribunal accepted that public safety was a legitimate aim for a decision to deport, and which could justify breaching rights to family life under article 8 of the European Convention on Human Rights. But, whilst his crime was a serious one, it was “not of the degree of seriousness that required a severe sentence or a recommendation for deportation“.
Ultimately, the tribunal stressed that the regime of automatic deportation requires a careful, case-by-case approach. This includes “a very careful consideration of the seriousness of the offence and the extent to which the deportation can be said to enhance public protection on the one hand and the impact upon private and family life on the other“. The fact is that whilst some may wish to deport all immigrants who commit serious offences (see the comments under the Sunday Telegraph article), the punishment must fit the crime, and exiling a person to a country where they have no ties is a very serious punishment indeed and should not be imposed lightly.
The “very careful consideration” of cases in the immigration tribunals is lost in articles which emphasise one side at the expense of the other. The Sunday Telegraph quotes at length the views of the victim’s family, an MP campaigning for the repeal of the Human Rights Act and the views of a controversial anti-immigration pressure group, MigrationWatch. Almost nothing is made of the appellant’s case, or the views of his family.
The decision was made in August of 2010, but is being reported now as it is linked to proposals by Conservative MP Dominic Raab, a former chief of staff to David Davis and author of a book advocating a new bill of rights, to reform human rights laws. Raab, also a former lawyer, said “Judges are no longer just applying the law – they are making it up as they go”.
It would seem that some articles on human rights law are falling into the same trap. We have highlighted two other recent examples. In November, many newspapers including the Telegraph reported that the failure to deport Learco Chindamo, the killer of headmaster Philip Lawrence, was because of human rights law. But in fact, as I posted, human rights was only a secondary aspect of his case which was really about EU freedom of movement law.
And, more recently, the case of an “asylum seeker death driver” Aso Mohammed Ibrahim, caused public outrage and “great anger” from the prime minister. But again, the case was misunderstood.
The Telegraph, along with other newspapers such as The Sun and the Daily Express, have a clear and open editorial agenda to scrap the Human Rights Act. Fair enough. But cases such as Rocky Gurang’s are presented as news in articles which are mixed with opinion. Newspapers are entitled to pursue an editorial line, but removing the distinction between opinion and news means that the general public, who understandably have little knowledge of the complex immigration system or indeed of human rights law, are left with a skewed picture.
The problem may be caused in part by the decline of the legal correspondent. As Joshua Rozenberg, probably Britain’s best known legal commentator, said in a recent Legal Week article, many national newspapers no longer have a designated legal correspondent, meaning that the “newspapers don’t provide the service they did“. The result is that the shrill reporting of some cases jars with the nuance of judge’s decisions. Of course, some judges make bad decisions. But if the decisions are badly reported, they will not be exposed to accurate scrutiny.
The effect of the lack of legal expertise at some newspapers, combined with a strong editorial agenda which leaks into “news” articles, is to confuse and over-simplify issues. The result will be that many members of the public could be locked into a permanent distrust of human rights legislation, even if it is reformed. And this would be bad news for everyone.
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