British Home Secretary Theresa May has accused judges of making the country a more dangerous by ignoring Parliament and rules aimed at deporting more foreign criminals.
Last year, MPs approved new immigration guidance for judges making clear a criminal’s right to a family life had limits.
The Mail on Sunday now reports Mrs May now wants to introduce a law to require most foreigners guilty of serious crimes to be deported without recourse to Human Rights laws in particular Article 8’s ‘right to a family life’.
In a classic three way tussle between the executive, Parliament and the Judiciary, May said that judges were choosing to “ignore parliament’s wishes”.
The Home Office (Parliament and the executive) guidance was designed to put an end to the ‘right to a family life’, as set out in Article 8 of the European Convention on Human Rights, being used by lawyers to justify granting foreign criminals the right to remain in the UK, rather than being deported.
Figures obtained Home Office by Conservative MP Charlie Elphicke, revealed that 177 foreign criminals avoided deportation in the year 2011 to 2012 after convincing judges of their Article 8 right to a family life in Britain.
The opposition Labour party has questioned whether the guidance, which is not necessarily based on the Law, would be sufficient to override the legal precedent set by earlier cases, but said it would support primary legislation.
In her newspaper article the Home Secretary directly blamed judges who had “got it into their heads that the ECHR Article Eight ‘right to family life’ could not be curbed”.
“Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules, as evidence that Parliament actually wants to see those new rules implemented,” she wrote.
She noted that one judge had justified his decision on the basis that the new guidance had been subject only to “a weak form of Parliamentary scrutiny”.
May continued: “It is essential to democracy that the elected representatives of the people make the laws that govern this country – and not the judges.
“Yet some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion.”
The Home Secretary said she was determined to bring forward a new law making it clear the deportation should be the norm in everything but “extraordinary circumstances”, but warned the delay in getting that onto the statute book would inevitably mean “more victims of violent crimes committed by foreigners in this country”.
May stressed there was not a dispute about respect for human rights, which she said she agreed was “an essential part of any decent legal system”.
“It is about how to balance rights against each other: in particular, the individual’s right to family life, the right of the individual to be free from violent crime, and the right of society to protect itself against foreign criminals,” she said.
Despite her criticism of the freedom of the judiciary, which she said was aimed at a minority of judges, Mrs May insisted that she was “a great admirer of most of the judges in Britain”.
She accepted the need for the power of government ministers and the executive to be “reviewed and restrained” by the judiciary.
But she emphasised that UK laws are “made by the elected representatives of the people in Parliament”, adding: “Our democracy is subverted when judges decide to take on that role for themselves”.
Eminent human rights lawyer and Labour peer Baroness Kennedy QC described Mrs May’s position as a “populist bit of politicking”.
Speaking on the BBC’s Andrew Marr Show, the Barrister said the number of cases that would be affected by the new law was “minuscule”.
“This depresses me,” Baroness Kennedy said. “It’s a common story with home secretaries that this is what they end up doing.
“We’ve got to remember that this is about the independence of the judiciary and why that’s so important.
“It’s absolutely imperative that judges are not under the thumb of home secretaries, and it can be frustrating for home secretaries of course, but it is not good to see this kind of vocal attack on the judges, and I am sad that she has done this.”
It was the job of the criminal courts to decide how best to protect the community from offenders by imposing custodial sentences, and subsequent judgements on whether to deport a foreign criminal on their release from prison could be “very difficult, subtle decisions”, she said.
Another human rights lawyer, Geoffrey Robinson told the BBC that “Mrs May had made an attack on the judges” and added that she was “wasting her time”.
Immigration Matters would point out that human rights laws are not, as the tabloid press would have you believe, just there to protect foreign criminals and terrorists.
In a country with no written constitution, human rights laws, Judicial Reviews, the ECHR and independent judges protect all citizens against the excesses of Government and the executive, who are setting the agenda.
Who do you trust more, politicians or judges?
Immigration Law Practitioner Cynthia Barker noted that the government are not just getting tough on hard core criminals.
“It is not just foreign criminals and terror suspects who are being targeted for removal and deportation, which the public would largely support.
“New guidance has also been introduced by the UK Border Agency last year to refuse further leave to remain applications for migrants who have received a minor conviction (e.g. a for not paying the correct fare on the train) or minor caution from the police and even a County Court Judgment (CCJ) for an unpaid debt.
“I am seeing a lot more clients who have been refused visa extensions, indefinite leave to remain and British Citizenship for one small slip up in the last 5 years.”
“The harsh refusal decisions by the UK Border Agency are leading to more appeals in the First and Upper Tier Tribunals, as well as Judicial Reviews.
“We recently won a human rights appeal, in which a Filipino care manager, who had been in the UK on a work permit for 5 years, and her three children were issued with removal orders by the UKBA following a refusal based on a minor conviction for an Oyster card offence.
“In his determination, the judge allowed the appeal on human rights grounds and proportionality rather than on the Immigration Rules.”
Some migrants who find themselves under arrest are coerced into signing a Police caution for an offence, for which they have not been prosecuted and convicted for in a court of law, without realising that it could affect their immigration status further down the line.
The caution will stay on your record and be treated in a similar way to a full conviction by the UKBA, unless you later apply to have it set aside.
If you are arrested and detained for any alleged offence you are entitled to legal advice. DO NOT sign any forms, removal documents, Police cautions without first seeking advice.
If you are a visa overstayer, have been detained, or need any immigration advic,e or are worried about the new immigration rules or need help with Sponsorship or Tier 2, Tier 4, applying for university if your college has closed down, Visa, ILR, Settlement, Citizenship, Dependant Visa or an appeal against a UK Border Agency or British Embassy refusal, or if you have been waiting for a reply from the Home Office for longer than a year, please email: