Guest post: An immigration lawyer on the Human Rights Act

Guest post by Walton, originally a comment on a post by Helen Dale (commenting on an article in the Spectator) on my Facebook wall yesterday on the Human Rights Act. Published with permission.

My view on this as an immigration lawyer:

A large part of the Tories’ explicit motivation for getting rid of the HRA is to curtail the scope of protections in immigration cases. They particularly hate the right to private and family life (Article 8), especially, but not exclusively, in criminal deportation cases. This has featured heavily in Tory rhetoric and tabloid press reporting for several years.

What they don’t tell you is why these protections are worthwhile.

Many of the people that the Home Office labels “foreign criminals” are in fact people who have lived virtually their entire lives in the UK since coming here as small children, and have no remaining ties to their countries of origin: in some cases they would be British citizens had their parents thought to naturalise or register them as citizens while they were still children. Many more have families and children in this country, from whom deportation would separate them permanently. A high proportion of “foreign criminals” have been convicted for drugs offences, or for victimless crimes like using a false passport; some are desperate alcoholics or mentally ill people who are caught by the “persistent offender” provisions. Having served their criminal sentences, instead of being released from prison they are faced with a much worse punishment – permanent exile from the country that is their home. Article 8 is the only recourse that these people have. The Tories have already curtailed it – in part, by enacting a statute last year (“section 94B”) that stops most criminal deportees from appealing on Article 8 grounds until after they have been deported (to a country where they may well have no support and become destitute and homeless). The Tories want to curtail the rights still further, including in administrative removal cases involving people who have committed no criminal offences but have overstayed a visa or entered unlawfully. The practical impact of this is that some children will grow up without parents, some people will be forcibly separated from their spouses, and lives will be torn apart.

The Tories also tend to rant about a tiny number of cases where people regarded as terrorists have avoided deportation to their countries of origin. These cases are, in general, under Articles 2 and 3, not Article 8: that is to say, the people in question would face the death penalty and/or torture in their home countries. I don’t believe that anyone who isn’t a monster can argue that the UK should be sending people back to face death or torture: and more to the point, the British Bill of Rights won’t and can’t curtail this protection. (Doing so would be inconsistent with EU provisions such as the Qualification Directive.) Tabloid rhetoric often conflates Articles 2 and 3 with Article 8, but they are distinct.

The Tory critique of the Human Rights Act is a mixture of incoherence, malice and inaccurate populist rhetoric. Either the new Bill of Rights will make no substantive difference at all (which is the best possible outcome), or it will severely curtail protection of human rights in immigration cases (which is the outcome I fear).


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