What can we do about foreign criminals “using family rights to dodge justice”?

25 April 2011 by

The Telegraph has launched a campaign to “Stop foreign criminals using ‘family rights’ to dodge justice“. The perceived inability of judges to deport foreign criminals as a result of the European Convention on Human Rights, and in particular the right to family life, is one of the most commonly heard criticisms of human rights law. 

In an editorial yesterday, the Telegraph argued that the Human Rights Act has become “a means of undermining public safety, not of helping to protect it.” The newspaper claims that last year 200 foreign convicts avoided deportation by citing the right to family life”, which is “an absurd state of affairs”.

It is not clear where the figure of 200 arises from, as failed deportations are not listed in the official Home Office statistics. Nonetheless, failed deportation cases involving the right to family life do regularly arise, and the Telegraph has enlisted some fairly powerful “campaigners for change”, including former shadow home secretary David Davis and former home secretary Jacqui Smith who says “Recent judgments have been completely on the wrong side of common sense and public opinion“.

Unfortunately, this difficult but emotive debate is often poorly reported. We have highlighted two such cases, relating to Learco Chindamo, in which the Telegraph wrongly attributed his failed deportation to human rights, and Aso Mohammed Ibrahim, who killed a 12-year-old girl in a hit and run incident. The court of appeal has recently refused to reconsider Ibrahim’s case.

The Telegraph argues, in a similar vein to the current controversy over privacy injunctions, that judges are responsible for getting the balance wrong:

Unfortunately, the European Court of Human Rights in Strasbourg has turned it into something that must be respected, regardless of whether doing so will damage national security or endanger the law-abiding. And our own judges have not only followed this interpretation, but expanded it still further.

For a summary of the current law on balancing family rights with public safety, see Suzanne Lambert’s post on the Aso Mohammed Ibrahim case, as well as the more recent case of ZH (Tanzania) which emphasised the rights of children in such cases.

The campaign will have significant support amongst the general public and politicians. David Cameron expressed “great anger” in relation to the Ibrahim case; another example of his often visceral responses to human rights decisions. It may be that the actual effect of article 8 has been overblown. But a key question for the Bill of Rights commission is how much leeway (in human rights language, “margin of appreciation”) they will have to alter the balance.

For example, would it be possible to insert an equivalent to the current section 12 of the Human Rights Act, which mandates courts to pay “special regard” to freedom of expression in public interest journalistic or artistic censorship cases? Perhaps this could read: “Special regard should be paid to considerations of national security and public safety when considering the deportation of a convicted criminal whose article 8 rights will potentially be breached by that deportation“.

But is the Strasbourg case law simply too clear to alter the balance to the significant extent that the campaigners would like? It is of note that many of the deportation cases involve children, and our own supreme court has made very clear that their rights are primary in deportation cases. Would courts be willing to erode those rights in the name of public safety? The Telegraph says we should not be too concerned by the European reaction:

[change could be achieved] by passing primary legislation in Parliament. Strasbourg might disagree, but in practice, it has no power to enforce its will. True, Britain could, in theory, be expelled from the Council of Europe – but this is not a threat that needs to worry anyone.

Perhaps. We will consider the legal position in more detail soon. But in the meantime, a good starting point in this debate is academic Mark Elliott’s excellent post on the new UK Constitutional Law Group blog. His view is essentially (as I have also argued) that the commission will have very little wriggle room since it cannot consider withdrawal from the European Convention. He concludes:

The bottom line is very simple. For as long as the United Kingdom is a party to the ECHR, its freedom as a matter of (international) law is constrained by that instrument and by the way in which the Strasbourg Court interprets it. None of this is to suggest that either the Strasbourg Court or the Human Rights Act is perfect.. . However, the suggestion which is (at least implicitly) made by those HRA-sceptics who advocate a British Bill of Rights—that the adoption of such an instrument would open up an opportunity for rebalancing rights and ‘responsibilities’, or for greater trading off of individuals’ rights against those of the ‘law-abiding majority’—is inaccurate. Significant latitude could be created only by withdrawing from the ECHR

It may be that no reform will satisfy those who wish that all foreign criminals could be deported without a second thought. But given the public support which will no doubt attach to the Telegraph campaign, it will be interesting to see whether, practically speaking, much can be done to shift the balance.

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  1. James Lawson says:

    One’s opinion is arrived at through an analysis of fact and presented as opinion. The difficulty with the media in general and newspapers in particular is that they invariably present opinion dressed up as fact leading to a ‘Monty Python’ view of the world.

    A punishment is usually defined as a sanction which arises as a consequence to an act or omission. It matters not what label is attached to it. If imprisonment is a sanction imposed by the state then it follows that when the obligation to the state is discharged, the imposition of a further sanction arising as a consequence of the first must logically be regarded as a double-punishment.

    The suggestion that Foreign nationals have different rights than Crown Subjects is curious. If a Crown Subject has a right in action under the doctrine of ‘nulla poena sine lege’ than it is a negation of the principle of equality before the law to deny the same right to all of those who fall within the jurisdiction of the court, be they Crown Subject or Foreign national. That is the true nature of the ‘social contract’ to which you refer.

  2. William Graham says:

    1. Newspapers seek to shape opinions. Of course, they all do it. So what? No-one’s opinion comes out of nowhere.

    2. Deporting foreign criminals is not double punishment. It reflects the reality that non-British citizens don’t have the same rights as British citizens. They are here on certain terms only, not as of right. One of those terms is obediance to the criminal law. If they can’t be bothered with the UK’s criminal law then we can’t be bothered having them here. Simple, really. It’s like a social contract. They get the protection of the UK state but only if they obey its laws.

  3. Bob Hughes says:

    What is never mentioned, is that the vast majority of “Foreign Criminals” are guilty of things that only became criminalised quite recently.

    Working without Home Office permission is a “serious offence” and therefore carries a sufficiently lengthy sentence to qualify the offender for deportation at the end of his sentence. So is entering the country without proper documents (something that the UNHCR specifically says should _not_ be criminalised – in recognition of the fact that when people flee a bad situation, they are rarely able to get their documents in order first).

    In the past, the Home Office has been reticent about disclosing these so-called criminals’ offences – citing confidentiality – although when 14 men escaped from Campsfield Immigrant Prison in 2007, the Home Office _did_ tell the press that four of the 14 escapees had “committed drug-related offences” (very minor offences, as it turned out).

    The press failed to ask what heinous crimes the other 10 had committed, allowing the impression to continue unchallenged, that “Foreign National Prisoner” = “black axe-murderer and rapist”.

  4. Heather says:

    Many of the prisoners currently in immigration detention may have served sentences for only minor offences, offences for which they have already paid the price by serving a prison sentence. Increasing their punishment by long periods of detention and separation from their families after their sentence is most unjust.
    There is also a considerable financial cost in maintaining detention for indefinite periods. Double punishment, unjust and expensive.

  5. peter pick says:

    james lawson’s point is well made. they frequently (as in this instance) stir up public opinion into a ferment for political reasons.

  6. John O says:

    Stop ‘Double Punishment’ of Foreign nationals

    There are approximately 12,000 foreign nationals in the UK prison system

    It is a fundamental principle of UK law that a person cannot be punished twice for the same offence. If you have committed an offence that society deems a crime and sentenced to a term of imprisonment by a magistrate, judge or judge and jury, once you have completed your sentence, you are released from prison as it is deemed you have repaid your debt to society and that is the end of the matter – and for the great majority of people in the UK, it is: you can only get punished once.

    However, this does not apply to ‘foreign nationals’ without status in the UK, or ‘foreign nationals’ ‘with status’ (I.E. Humanitarian Protection, Discretionary Leave, Indefinite Leave to Remain, Exceptional Leave to Remain, are Naturalized).

    If any of the above commit a crime and are sentenced to a prison term of 12 months or more, irrespective of how long they have lived in the UK, no matter that they have very strong family ties, are at very serious risk of automatic deportation under provisions in the UK Borders Act 2007 in addition to any term of imprisonment. They will if deported also face an automatic ten year ban (Rule HC 321) from applying to reenter the UK.

    It matters not that a person has status to remain in the UK, the Home Secretary has powers to revoke the status of anyone convicted and sentenced for a crime and will do so at every given opportunity.

    Therefore any ‘foreign national’ having completed a prison sentence will most certainly be punished a second time by being deported from the UK. Provisions in the UK Borders Act 2007, will mean that those cases where the Home Secretary has secured a deportation order can be deported before the end of their final release date. There is no automatic right of appeal against deportation under the act, but decision to deport can be challenged on Human Rights grounds I.E that separation from family members would be disproportionate, or that they would face torture and/or persecution in the designated country.

    However, those persons successfully challenging the deportation under the UK Borders Act 2007 and UKBA, then cannot remove them from the UK; they and their ‘families may face severe deprivation under provisions of Part Ten of the Criminal Justice and Immigration Act (CJIA), which received Royal Assent on 8 May 2008. Under the provisions of the act, any foreign national convicted and sentenced to two years or more for an offence specified as serious (Home Secretary deems petty theft, criminal damage as serious); can be designated as having a ‘special immigration status’ and so can any member/s of his/her family. ‘Special immigration status’ will strip the offenders family of their immigration status, and the whole family can be refused the right to work, access to benefits, social housing, can be subject to curfew, electronic monitoring, dispersed from their habitual residence and will receive only the minimum of support, probably vouchers but definitely no cash.

    Deportation after completing a prison sentence is a secondary or double punishment.

    ‘Double punishment’ has nothing to do with the concept of punishment fitting the crime as the crime has already been punished.

    Double punishment offends all rules of natural justice and is not simply unjust it is blatantly discriminatory as it only affects foreign nationals.

    John O with profound acknowledgement to the ‘Manifesto of the Campaign against Double Punishment’

  7. James Lawson says:

    Newspapers do not exist to express public opinion. They exist to shape and mould it in the image of those who own them.

  8. Graeme Hall says:

    The most recent case regarding deportation and Article 8 against the UK is Khan v UK. In this case, the applicant was a Pakistani national who had been living in the UK since the age of three. He was sentenced to seven years’ imprisonment in 2003 for the importation of a significant quantity of drugs and released in 2006. He was served with a deportation order. Khan argued that as he had been in the UK nearly all of his life, that he had no family or other ties in Pakistan and, that his mother, brothers, British girlfriend and daughter all resided in the UK, deportation would violate Article 8. Strasbourg agreed.

    Interestingly, whilst making passing reference to Uner v Netherlands and Boultif v Switzerland which state that the best interests of any children in deportation cases are relevant considerations, the Chamber did not dwell on the fact that deportation in this case would remove the applicant from his child with whom he was actively involved. (Indeed, Strasbourg suggests that as they knew deportation proceedings were ongoing, the applicant knew the risks of having a child). It looks like our domestic courts are taking a stronger line than Strasbourg in relation to the weight to be attached to the interests of children. At least, therefore, The Telegraph is accurate when it states that it is domestic courts which are expanding the interpretation of Article 8.

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