What the first #catgate appeal judgment actually says
6 October 2011
Updated |I have been sent the first appeal judgment in the political frenzy which has been termed “Catgate”. I had promised myself not to do any more Catgate posts or use any more cute pictures of kittens, but I have now broken that promise.
Having read the short, 6-page judgment dated 9 October 2008 by Immigration Judge JR Devittie – reproduced here by Full Fact – I will quote from it at length (apologies for any transcribing errors) and say the following.
First, on any reading, the judgment does not support the proposition the Home Secretary made in her speech: “The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.” For similar reasons, it does not support the Daily Mail’s headline from this morning: Truth about Tory catfight: Judge DID rule migrant’s pet was a reason he shouldn’t be deported. Back on to the legal naughty step, Daily Mail.
Secondly, this is not the final judgment in the case. I have already linked to and summarised that judgment in this post. Legally speaking, the fact that the judgment was superseded by a second appeal means that has very little, if any, relevance at all. An imperfect analogy would be retaking an exam – once you have the result of the second exam, it would be odd for you to refer to a previous, inferior grade.
The fact that, as I have explained, the judge in the second appeal rejected the Home Office’s appeal, and for entirely separate (to the human rights claim) reasons relating to the UK Border Agency’s failure to follow its own policy, means that the cat issue did not have to be considered and was therefore rendered wholly irrelevant to the final decision not to deport the man.
Thirdly, Judge Devittie does happen to mention Maya the cat. The reason he did so is that the Home Office had, in their initial consideration, made a sarcastic-sounding determination to the effect that
Although you have a cat called Maya she is considered to be able to adapt to life abroad with her owners. Whilst the cat’s material quality of life in Bolivia may not be at the same standard as in the United Kingdom, this does not give rise to a right to remain in the United Kingdom.
The judge even refers to some Canadian case law which emphasises, in unlawful animal killing cases, the
increasing recognition of the significance that pets occupy in family life and of the potentially serious emotional consequences pet owners may suffer when some unhappy event terminates the bond they have with a pet… the Canadian courts have moved away from the legal view that animals are merely chattels.
This is pretty uncontroversial. People love their pets. They consider them to be part of their family lives. If we were looking for evidence of judges taking account of “real” public attitudes, this could be one of them. It was not, however, the basis on which the man’s case was decided.
Fourthly, reminding ourselves that the key question here is whether the Bolivian could not be deported “ because… he had a pet cat”, the answer in this ruling is here:
11. In considering proportionality I must focus on the question whether the appellant’s removal would have sufficiently serious consequences to render his removal disproportionate having regard to the public interest in the removal of persons whose residence in the UK is unlawful.
12. I do not consider that it would be reasonable for the appellant’s partner to move to Bolivia to live with him. There are several considerations that justify this conclusion. The appellant’s counsel addressed these matters in his submissions. The most important perhaps is the condition of the appellant’s partner’s father. The evidence of this appellant’s partner and his siblings is that their father is in a condition that he is not expected to recover from. They stated that a family decision has been taken to give their father collective support as a family and that the support as a family and that the support that the appellant’s partner would give is an integral part of that effort. It would be distressing to the appellant’s partner’s [sic] if he were to have to leave the United Kingdom having regard to his father’s condition.
13. I have not lost sight of the respondent’s observations in respect of the quality of family life between the appellant and his unmarried partner. I find however that the evidence of the appellant’s friends and of his partner’s siblings is persuasive and telling. In my view it attests to the strong quality of the relationship between the appellant and his partner.
[…]
16. The evidence also shows that the appellant is well integrated into the larger family that his partner has with his siblings and parents. He attends family functions with his partner and is regarded as a member of the family.
17. The parties have lived together for about four years. The quality and strength of the relationship has been amply demonstrated. I have found it would not be reasonable to expect the appellant’s partner to return to live with him in Bolivia… I also take into account that the appellant appears to meet the requirements of policy DP3/96. In particular, his relationship and cohabitation predates enforcement action for two years.
[emphases added]
That was the reasoning behind the decision. Aside from the poor apostrophe use (which is probably the transcriber’s, not the judge’s), it sounds eminently sensible. As to the cat:
… the evidence concerning the joint acquisition of Maya by the appellant and his partner reinforced my conclusion on the strength and quality of the family life that the appellant and his partner enjoy.
So, finally, the most that can be said about Maya is that the evidence about the cat added a bit of colour to the thrust of the decision, in which the immigration judge quite rightly assessed the quality and strength of the man’s relationship with his partner according to evidence from the couple and their friends and relatives.
To conclude: this ruling is of little or no legal relevance. This is because when it was appealed, the more senior immigration judge reminded the Home Office counsel that irrespective of the article 8 ECHR arguments and the emphasis or otherwise on the cat, the appeal failed due to the Home Office’s own failure to follow its policy.
In any event, looking again at the judgment as the senior immigration judge would have if it had been necessary to substantively reconsider it (which it was not), Judge Devittie rightly attached little or no relevance to the cat, which was at most a distraction from the main thrust of the evidence.
So the answer to the question of whether this is a case where an”illegal immigrant… cannot be deported because… he had a pet cat” appears to be no. I am with the Justice Secretary on that one. As to the Daily Mail’s “Judge DID rule migrant’s pet was a reason he shouldn’t be deported“, the reason he was not deported was because he successfully showed he had a relationship with another person lasting over two years, not that he had a pet cat.
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- I strongly suggest that you read the press release from the Claimant’s solicitors Wesley Gryk.
- The lessons of shaggy dogs and Catgate
- The cat paradox
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I’m still trying to understand whether this case or the old withdrawn Home Office advice DP 3/96 [itself still available online http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/relateddocuments/%5D on which it hangs is tinged by “Human Rights law” or the Human Rights Act as May asserted.
What an utter nonsense this entire catflap is. It was obvious May has blundered as soon as she spoke: you only had to do a Google search to see the case was not quite like her description. Once you tracked down the second appeal, Adam, it seemed to me the argument was settled.
What’s incredible is the way that what you might call “plausible denial” culture led May’s supporters to insist on their unlikely story that the cat was the key after all. Amazing. This could have blown over within a couple of hours if she’d played it down rather than allowing the stakes to be raised.
The other thing that’s remarkable here is the level of tension on human rights that’s now been exposed in Tory ranks. We knew there was some tension, especially between LibDems and Tories, and there’s a distinctly realist/pragmatist tendency (Grieve) that’s trying to keep the Tories sane on this. But the level of frustration implied by May’s speech suggests the “ultras” are fighting hard within government.
Cameron has learned well I think from John Major’s experience, and Tory discipline on EU matters has been very impressive. Perhaps that’s been helped by his throwing the sop of the EU bill to the hard-liners. The Tory civil war on Europe seems now to be fought on the proxy subject of human rights instead. If Cameron’s wise, he’ll fear this – it could tear him to shreds as it did with Major.
If I were him I’d be reading the riot act to the pair of them, tell them to make up and then shut up, and I’d make it clear to all ministers that the next off-message statement on human rights will be rewarded with sacking.
There’s no doubt that it was silly for a Home Secretary to invoke this case. It was never going to stand up to legal scrutiny.
But to the man on the Clapham Omnibus, this is a case where a cat was brought into evidence and – to put it at its lowest – not wholly dismissed by the judge who initially heard it. That sounds barking to people travelling by bus in (or do I mean to?) Clapham.
Yes, the appeal judge allowed the individual to remain on other grounds. But those other grounds won’t always apply to future cases. Which leaves the bus passenger wondering whether, absent the other grounds, evidence about a cat might hold sway in future.
I draw a parallel with the Chindamo case. He won the right to stay primartily on the basis of EU law, not human rights. But the human rights argument was there as a fall back and, faced with a non-EU citizen with a similar history, it seems that the human rights aspect would have win through – and HAS won through in other cases.
Unless and until the human rights zealots address the arguments as they are seen in the real world and the political world, as well as the legal world, this argument isn’t going to go away.
“But to the man on the Clapham Omnibus, this is a case where a cat was brought into evidence and – to put it at its lowest – not wholly dismissed by the judge who initially heard it. That sounds barking to people travelling by bus in (or do I mean to?) Clapham.”
I see your point – but answer me this:
In a case where a man is going to be deported unless he can convince a judge that he has a genuine, not made-up relationship with his partner lasting a number of years, should the fact that they have bought a pet together be taken into account?
If not, why not?
You ask a good question: “If the cat cannot be taken into account, why not?”
I don’t actually know what I think the answer to that should be. What I do know is that, if a Court says the cat CAN be taken into account, the Home Secretary is entitled to say: “He avoided deportation because he bought a cat. Not SOLELY because he bought a cat. He might have avoided deportation without the cat. But it was one of the indicators. You can probably take away some of the indicators and he would still have avoided deportation, but you can’t take away ALL of the indicators and get the same result. He pleaded the cat and the court took it into account.”
My reason for writing in here is to get the two sides of the HRA argument to see things from their opponents’ perspective. (My training is that of an independent expert witness and, more recently, a mediator.) If the Home Secretary doesn’t think cats should be an allowable indicator, you can disagree on the grounds that the courts don’t factor cats into the equation OR on the grounds that a cat is a perfectly reasonable factor to consider. But it’s not effective politics to castigate the Home Secretary on both grounds simultaneously.
One thing is clear. The first instance judge gave serious consideration to the cat; discussed the jurisprudential value of pets in other countries; and identified a trend towards attaching greater weight to the status of pets. If you want to oppose the Home Secretary, I think you need to find a different leg to stand on.
I have seperately seen this (initial) appeal judgment, and I can verify that Adam’s quotations and summary are both correct.
I think you mean to quote Mrs May as having said “he had a pet cat” rather than, as you have it “he had pet a cat”.
Thanks! Corrected. I am going a bit cat crazy