Since the Human Rights Act (HRA) entered into force, the grounds for blocking deportation have expanded. Before the HRA, there was not a single UK case of deportation of a foreign national criminal blocked under Article 8 of the European Convention on Human Rights (ECHR), namely the right to family life. As a result of judicial legislation, there are now hundreds of successful challenges under Article 8 each year.
In July 2007, on becoming Prime Minister, Gordon Brown told The Sun:
‘If you commit a crime you will be deported. You play by the rules or you face the consequences… I’m not prepared to tolerate a situation where we have people breaking the rules in our country when we cannot act.'
Yet, his own UK Borders Act 2007 included the express exception that automatic deportation – for crimes resulting in a prison sentence of at least 12 months – were subject to the HRA. Under the HRA, where the UK courts find an incompatibility between an Act of Parliament and the ECHR, the matter goes back to the government and ultimately Parliament has the last word. By including the express HRA exception, Brown allowed the UK courts to get round this democratic safeguard. In effect, there was no clash with the UK Borders Act, because the HRA was deemed part of it.
The HRA has many flaws, and I have long advocated a British Bill of Rights to replace it. Conservatives and Lib Dems will disagree on whether and how to replace the HRA. But, at least we should not make the situation worse.
Home Office Ministers have taken important steps to tackle the problem, ducked by the last government. In June, Immigration Minister Damian Green published the first comprehensive set of data showing the breakdown of successful human rights challenges against deportation orders. It disclosed 99 successful cases in just 3 months, where foreign national criminals defeated a deportation order on grounds that it would disrupt their family ties – 61% of the total successful challenges. These challenges include cases like the manslaughter of my constituent, Bishal Gurung, killed by a gang in London. The perpetrator – an adult with no dependents – was convicted of homicide, but still relied on family ties to avoid deportation back to Nepal. In another case, a man convicted of drug offences and beating his partner was allowed to stay on Article 8 grounds, even though he had split with the partner and failed to pay maintenance for his daughter.
Bear in mind that Article 8(2) explicitly allows the right to family life to be trumped ‘in the interests of national security, public safety … for the prevention of disorder or crime … or for the protection of the rights and freedoms of others.’ So, the expansion of Article 8 to scupper deportation of criminals defies the Convention, as well as common sense.
In response, on 13 July, Damian Green published a consultation paper on family migration, in which he set out proposals to crack down on sham and forced marriages, including by increasing the level of English required for spouses to be allowed to settle in the UK, and setting a 5 year probationary period. Critically, he also proposed to clamp down on the abuse of Article 8 in deportation cases, especially those applicable to foreign criminals. These are welcome steps. As part of the consultation, I have proposed an amendment to the UK Borders Act, which would achieve two things. First, re-affirm the bar on deportation into the arms of a torturing state – in my view, a civilised nation should maintain the absolute ban on torture. However, we should clarify the burden of proof – so that the onus is not, effectively, on the government to prove deportees won’t be tortured. Second, remove the express ECHR exemption from deportation in the UK Borders Act. That will not stop the HRA from applying. But, it will mean that where any UK court decides the right to family life should trump automatic deportation of a serious criminal, the issue will be sent back to the government and Parliament will have the last word – without suspending the deportation or the wider operation of the UK Borders Act.
I will be looking to develop cross-party support for this modest proposal in a critical area, a first step towards wider human rights reform. As a result of the Home Office consultation, the public can feed in their views, by answering the online questionnaire – in particular questions 34 to 36 – accessible here. If you feel strongly about this issue, now at least you can have your say.