Updated | Today the Sunday Telegraph (ST) has named and shamed the “three judges who allowed the most appeals” in cases involving the deportation of foreign criminals (Judges who allow foreign criminals to stay in Britain).
The investigation looked at all 184 appeals against deportation by foreign criminals in the 12 months up to June 1 which were brought under Article 8, in whole or in part, in the Upper Tribunal of the Immigration and Asylum Chamber.
David Barrett (who has form on this blog for poor reporting) and Josie Ensor, who wrote the piece, do not reveal the source of the investigation. Why ever not?
Whomever has produced or leaked the study clearly has their sights on the Parliamentary debate surrounding the new immigration rules – see Article 8 and a half – wider than thought, but will it work?
But some words of caution for Parliamentarians considering this article. However the Home Secretary’s changes have been presented, foreign deportations account for only a tiny fraction of the cases in which Article 8 plays a role (the ST identifies 184 in 12 months, although as you might guess, they are not listed). By contrast, the proposed changes to the immigration rules will affect all immigration cases, involving thousands of people each year. What is proposed isn’t a simple tweak, but rather a completely different approach to the courts’ role. The key paragraph is 39:
Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules.
In other words, it is proposed that the courts will have an initial role in assessing the fairness of the rules, but save for exceptional cases, will then not have a role in individual cases. This is arguably against the grain of the Human Rights Act, which allows individuals to seek a judge’s opinion in relation to any decision by a public authority which arguably contravenes their fundamental rights.
Another point is that there were 184 foreign deportation appeals last year, apparently. How many were successful, according to the ST? 96, or “just over half”. But the ST does not mention how many of those 96 were won on Article 8 grounds. For example, how many cases were won because of a UKBA mistake? Or a basic error of law by a court? Since we cannot see the original data, it is impossible to find out.
Without this information, statements such as “In 11 he ruled in favour of the criminal bringing the appeal, with just two going in the Home Office’s favour” are meaningless. To say there is a “startling variation in the “hit rate” under different judges” when the sample size is so small (it is assumed), exposes the lazy logic behind the claims.
The article has an unpleasant tone, which is explained in part by the crimes committed by the men. But full biographical details are provided for the judges, including the fact that one of the judges is a Methodist lay preacher. What exactly will this achieve?
As the Judicial Office’s fairly anodyne statement to the ST rightly says, “Judges make a decision in each case according to the evidence before them.”
This means it is dangerous, particularly when there are relatively few cases each year involving foreign deportations, let alone won under Article 8 grounds, to use this kind of ‘league table’ or ‘name and shame’ approach. And the ST has loaded the dice rather by not saying where the data came from in the first place, meaning it is impossible to challenge. Shoddy stuff indeed.
Update, 19 June 2012 | Josie Ensor, one of the article’s co-writers has tweeted the following in response to me asking where the data came from:
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