The home secretary is oversimplifying article 8 of the Human Rights Act

The home secretary’s argument on the need to reform barriers to the deportation of foreign criminals is based on a misinterpretation of the law as it stands.

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Jenny Pennington is a research assistant at IPPR

The home secretary’s argument on the need to reform barriers to the deportation of foreign criminals is based on a misinterpretation of the law as it stands.

theresa-mayThe right to a family life, as laid out in article 8 of the Human Rights Act, and its use by foreign criminals to stop their deportation has been in the government’s sights for many months.

A commitment to reform was central to Theresa May’s speech to the Conservative party conference in 2011. Last week, Theresa May announced that she will be addressing the issue through putting forward a commons motion that sets out guidance for the courts in order to ‘make it clear that article 8 rights are qualified’.

Article 8 judgments can seem troubling. Take the case of Aso Mohammed Ibrahim, an Iraqi failed asylum seeker who during his time in the UK had developed a persistent offending history including a hit and run offence that caused the death of a twelve year old girl.

His deportation was blocked on article 8 grounds in a judgement that was later described by David Cameron as causing him ‘great anger. Individual article 8 cases, as presented in the media or the House of Commons certainly suggest an area ripe for reform.

 


See also:

Trigger happy Theresa has a worthy goal but not enough cops to make it happen 23 May 2012

The curse of the Home Office continues 18 May 2012

Media reporting is the real foreign national prisoner ‘problem’ 17 May 2012


 

However, things aren’t quite that simple: two critical features of these decisions are being buried in a debate that is generating more heat than light.

Rather than the absolute barrier to deportation that Theresa May suggests it to be, the right is already heavily conditional. ‘Balance’, between the right and the UK’s legitimate and lawful interest in deporting an individual is already inherent in the law and in the way it is interpreted by judges.

The right to a family life can be counterbalanced by a number of considerations including: national security, the prevention of crime and ‘protection of morals’. However strong a migrant’s family ties, if they can be shown to represent a threat, the right to a family life would not necessarily stand in the way of their deportation.

Secondly, it is regularly not ‘a migrant’s right to a family’ that blocks deportation when the right is used. Article 8 cases commonly don’t consider a migrant’s rights to a family but the family rights of the British citizens to whom they are related.

Particular weight is given by judges to whether deporting a migrant would violate the family rights of their children who are British citizens.

For example, Aso Mohammed Ibrahim’s deportation was blocked not because of his right to stay with his partner and children but because of his British children’s right to grow up in the UK, with a father. Something that a family-friendly government might find harder to disagree with.

None of this is to suggest that there isn’t an issue about the deportation of foreign criminals, or indeed about the enforcement of immigration law more generally.  But however much it suits the government’s purposes to make ‘human rights’ the culprit, the bigger challenges are more prosaic – effective implementation, consistency and joined up working between different agencies.

Difficult to deliver – and not conducive to easy headlines – but much more important.

 


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23 Responses to “The home secretary is oversimplifying article 8 of the Human Rights Act”

  1. NewsatLeft

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  2. NewsatLeft

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  3. phillip cole

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  4. Political Planet

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  7. KMJ

    RT @leftfootfwd: The home secretary is oversimplifying article 8 of the Human Rights Act, writes @JennyIPPR: //t.co/LZHwgexY @ippr

  8. Yrotitna

    The home secretary is oversimplifying article 8 of the Human Rights Act, writes @JennyIPPR: //t.co/kA3LGYoz @ippr

  9. Lord Blagger

    Secondly, it is regularly not ‘a migrant’s right to a family’ that blocks deportation when the right is used. Article 8 cases commonly don’t consider a migrant’s rights to a family but the family rights of the British citizens to whom they are related.

    ===========

    A sues B. The judgement affects C.

    Currently C doesn’t get a look in at the court case.

    Why should that apply to kicking these people out?

  10. Lord Blagger

    Secondly. The right to a family life.

    Is there anything stopping the ‘family’ leaving with the criminal? In almost all cases the answer is no. [1]

    So my view, if you can move with the deported you have a choice, and you aren’t being denied anything.

    [1] Clearly deportation to a war zone isn’t acceptable.

  11. Ken MacLeod

    RT @leftfootfwd: The home secretary is oversimplifying article 8 of the Human Rights Act //t.co/fwmmVMJr

  12. Janet Graham

    The home secretary is oversimplifying article 8 of the Human Rights Act, writes @JennyIPPR: //t.co/kA3LGYoz @ippr

  13. BevR

    RT @leftfootfwd: The home secretary is oversimplifying article 8 of the Human Rights Act //t.co/YE2cgxRF

  14. TheLawMap

    The home secretary is oversimplifying article 8 of the Human Rights Act //t.co/VW1inMSW

  15. Cryton Chikoko

    The home secretary is oversimplifying article 8 of the Human Rights Act //t.co/8g9rdQc7

  16. Brian Tomkinson

    RT @leftfootfwd: The home secretary is oversimplifying article 8 of the Human Rights Act //t.co/YE2cgxRF

  17. Moonbootica

    RT @leftfootfwd: The home secretary is oversimplifying article 8 of the Human Rights Act //t.co/fwmmVMJr

  18. Anonymous

    In a lot of cases they’re not citizens of another country.

    You want to burden the UK with tens of thousands of parentless kids who CAN’T leave.

  19. Anonymous

    Ah yes, you attack precedent, the basis of our common law system. No surprise there!

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