Daily Mail on the naughty step for dodgy immigration story

19 July 2012 by

Somebody call Lord Justice Leveson! The Daily Mail have earned themselves a position on the legal naughty step by ‘naming and shaming’ a “controversial” immigration judge for allowing an appeal on human rights grounds, whilst failing to mention that the Home Office themselves had conceded the point.

The article by Andy Whelan and Ross Slater, entitled Judge who let Taliban soldier remain in Britain now allows refugee who raped girl, 12, stay in UK, even included a paparazzi snap of Immigration Judge Perkins looking vaguely sinister. The Mail reported, correctly, that the judge ruled “removing [the Appellant] would be contrary to the United Kingdom’s obligations under the European Convention on Human Rights“. This is technically right. But there is more. The excellent Free Movement Blog has tracked down the judgment, in which the Judge also made clear that

Before us, on 12 November 2009, Ms R Ashraf, who then represented the [Home Office], accepted that the appeal had to be allowed on human rights grounds.

This is even more surprising given the quote ‘the Government’ provided to the Daily Mail: “‘We are at the mercy of the courts“. I suppose this may have been a reference to previous country guidance rulings which make it impossible to deport to certain places, but most readers will read this as another barmy judicial decision, flying in the face of common sense etc. Whereas the full picture is that the Home Office themselves argued for the same position. Which means the legal position was so straightforward that the parties agreed on right outcome. Hardly a “controversial” decision as it is painted in the article.

Judges in the immigration tribunals have been getting a rough ride in the press recently. I took issue with a particularly poor article in the Sunday Telegraph, which relied upon very thin reasoning to suggest some immigration judges were more lenient than others. I recommend the comments; to his credit, the Telegraph’s David Barrett responded to the criticisms, but in my view the article was still sensationalist and statistically meaningless.

In honour of his coming elevation to the Presidency of the Supreme Court, I will take the opportunity (again) to quote Lord Neuberger on this topic. He highlighted two tendencies at work:

The first is simply outright misreporting. The story said one thing, when the truth was the opposite. The second is a more subtle form of misreporting: the Human Rights Act is brought in to take the blame for a decision to which in might have played a part – and the part the critics suggested it did play, but which in truth it did not.

The Daily Mail article fits into the first category: outright misreporting. The theme of the article is that judges are out of control and making crazy decisions. Maybe so, but not in this case, where the judge simply did what both parties, including the Government, considered was correct.

It must be a very difficult time to be an immigration judge. The shame is that nobody in positions of power seems to be prepared to defend them. Until this happens, the newspapers will be free to publish whatever nonsense they please. Take notice, Lord Justice Leveson.

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  1. Slightly concerned says:

    “…The second is a more subtle form of misreporting: the Human Rights Act is brought in to take the blame for a decision to which in might have played a part – and the part the critics suggested it did play, but which in truth it did not.”

    There is even an element of the second aspect in this case. It seems UKBA conceded the Article 3 point at an earlier appeal so it wasn’t an issue at this particular hearing. This appeal was solely to determine the issue of whether the appellant was entitled to keep his refugee status. The Judge found that he *couldn’t* remove refugee status because of Section 33(2) of the refugee convention/Section 72 of the NIA Act 2002. UKBA had to demonstrate that the appellant had both committed a particularly serious crime, and that he was a danger to the community. Although the Judge accepted that he met the first part and had committed a particularly serious crime, in view of the length of time it had taken to resolve the case and the amount of rehabilitation shown, he couldn’t say that he was presently a danger to the community.

    UKBA does have the power to remove in spite of a person’s refugee status, or to take away a person’s refugee status and replace it with limited leave to enable removal to take place as soon as the situation changes in their home country, but in order to do that they have to show that the case meets the criteria set out in Section 72. And that is *nothing* to do with the Human Rights Act.

  2. Séamus McIlroy says:

    Time to prosecute for scandilising the court?

  3. Mark Apsted says:

    If the Home Office had already conceded the paramount point, whyever did the matter go through the courtroom door?

  4. The Engineer says:

    Does a right to a family life necessarily mean a right to a family life here? If one member of a family has forfeited the right to live here, the family may have to stay together elsewhere.
    I understand that danger is another matter.

  5. IJMO says:

    Why do we need article 3, when we have the UN convention, which provides for asylum and covers more countries than the ECHR? Besides Article 1 restricts our responsibilities to our area of jurisdiction. We are allowed to deport as long as we follow our national law and the ECHR / HRA should play no part. Britain should be a goldfish bowl as far as interpretation of the ECHR is concerned. What happens outside is irrelevant. The judges just make it up as they go along.

  6. Lee says:

    The Mail undoubtedly got it wrong, but I accept the Mail’s disappointment with this line of jurisprudence: why should Article 8 apply in immigration cases at all? There is no other Bill of Rights or constitutional document which has used a right to respect for privacy to prevent a deportation which would otherwise be completely lawful. I agree that we should not deport those who could be killed or tortured, but simply to prevent a deportation because of family life runs a coach and horses through the State’s undoubted right to control aliens in its territory. This is a judicial coup against policy which ought to be the prerogative of the executive and the electorate.

    1. Adam Wagner says:

      Lee – thanks for the comment.

      A couple of points: First, this ruling was on the basis of Article 3 (the right not to be tortured or treated inhumanely), not Article 8. Secondly, in the vast majority of Article 8 cases it is the right to respect for family life, not private life, which applies. This is understandable, as immigrants have often built up family ties (e.g. they have got married and had children) during their stay in the UK.

  7. Rachit Buch says:

    Thanks for the post. It’s only fair to point out that many other newspapers ran the same story, with the same implication and same error, including this one in the Telegraph which has a quote from a UKBA representative

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