Updated | Today the Home Secretary Theresa May gave a speech to the Conservative Party Conference in which she announced new immigration rules which would make it easier to deport foreign criminals.
May also gave three examples in support of the view that the Human Rights Act “has to go”:
We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.
The most startling of those examples is of course the final one, that an illegal immigrant could not be deported because he “had a pet cat”. As regular readers of this blog will know, there are plenty of mythical examples regularly peddled in order to criticise human rights law. Is the cat deportation one of them?
Straightforwardly, yes. The decision of the Asylum and Immigration Tribunal by Senior Immigration Judge Gleeson (IA/14578/2008), dated 1 December 2008, can be read here. It is only two and a half pages long. Judge Gleeson explained that the reconsideration was granted in reference to
the inappropriate weight placed on the appellant having to leave behind not only his partner but also their joint cat, [ ]
The judge rather cheekily anonymised the cat’s name, which is almost certainly an attempt at humour, given the final line of the judgment:
The Immigration Judge’s determination is upheld and the cat, [ ], need no longer fear having to adapt to Bolivian mice.
This misplaced (in retrospect) humour aside, why did the Home Office lose the reconsideration? Because it had failed to follow its own guidance, specifically paragraph 53.4.1: Procedures when dealing with an offender who is the unmarried partner of a person present and settled in the UK of the United Kingdom Border Agency enforcement instructions and guidance.
That guidance had been issued earlier in the same year. It essentially compelled the UKBA to give more weight to the relationships of unmarried couples who had been together for over 2 years, that is “partnerships akin to marriage”, when making immigration decisions. In such cases:
Where a person makes representations after the commencement of enforcement action, on the basis of a common law or same sex relationship, the normal course will be to proceed to enforcement action unless it is clear that the couple had lived together for 2 years or more before enforcement action commenced and that the parties are not involved in a consanguineous relationship with one another.
The guidance had not been considered by the Home Office until the day of the appeal. Counsel for the Home Office “accepted [it] applied to the present appeal” and therefore
accepted that any error in the determination was immaterial. Had the transitional provisions been properly applied, the Immigration Judge would have been entitled to allow the appeal under DP3/96 as he had in fact done.
So had the policy been properly applied, the immigration judge would have had to allow the appeal anyway, cat or no cat. And not only did the decision have nothing to do with a cat, it also had nothing to do with human rights either. The decision was based on European free movement law (the man’s partner was European so the rules applied to him too).
The Home Secretary’s confusion probably arises as a result of a number of press articles in 2009 which wrongly blamed the cat for the decision, as pointed out in this post by Tabloid Watch at the time.
It was heartening to hear the Home Secretary read out Article 8 of the European Convention on Human Rights in full during her speech. More politicians should go back to the source to explain what the law means. And there are undoubtedly some difficult issues to be approached in relation to the European Court of Human Rights’ somewhat expansive interpretation of Article 8.
The head of the Court of Appeal Lord Neuberger said in a recent speech:
It is a sign of a healthy democracy that there are different views within society and that the outcome of individual cases, and the balance struck between individual rights, can be vigorously debated. But such debates must be based on fact not misconception, deliberate or otherwise. Persuasion should be based on truth rather than propaganda.
Human rights should be debated vigorously but also accurately. In this case, a bit more curiosity could have killed the cat.
Update, 5 October 2011 – See my follow-up post The lessons of shaggy dogs and Catgate
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