The row over human rights between the executive and the judiciary escalates as the UK’s most senior immigration judge has defies the Home Secretary by insisting that Parliament’s attempt to get tough on human rights abuses by foreign criminals is outweighed by the European Court.
In a key ruling, the head of the immigration courts said measures introduced by Mrs May last summer to stop criminals claiming the “right to family life” were overridden by judges’ previous decisions on such cases at the European Court of Human Rights in Strasbourg.
Mr Justice Blake added that “little weight” should be given to Mrs May’s immigration rules in cases involving criminals with children because they were overruled by international agreements and a previous law passed by the Labour government.
As reported by Immigration Matters last week, Mrs May will introduce laws to strengthen existing measures over concerns that judges were not taking them seriously, which are supported by The Daily Telegraph’s “End the Human Rights Farce” campaign.
The judge made his criticisms of Mrs May’s laws in a ruling which allowed a criminal with 30 convictions to stay in Britain, even though the Home Office had tried to deport him.
The decision is a “reported determination”, which means other immigration judges will have to follow its example when deciding other similar appeals.
Olufisayo Ogundimu, a former drug dealer from south London, persuaded the court that he should not be removed to Nigeria, where he was born, because he had fathered a child here and has a baby on the way with another woman.
Mr Justice Blake said in his ruling on Ogundimu’s case that the immigration rules “did not affect the circumstance” when considering the right to family life, which is guaranteed by Article Eight of the Human Rights Act.
In such cases he said that the way to interpret Article Eight was not to consider Mrs May’s rules as most important, despite them being passed with cross-party support by Parliament.
Specifically regarding one of Mrs May’s rules which was designed to mean that having a child in Britain would not strengthen a criminal’s case against being deported, the judge said: “Little weight should be attached to this rule when consideration is being given to the assessment of proportionality under Article Eight.”
Instead, he said the United Nations Convention on the Rights of the Child and part of an immigration Act passed by Labour in 2009 took precedence.
Dominic Raab, the Tory MP who has campaigned for tougher rules, said: “This chronic judicial legislation has undermined public protection and usurped the democratic will of Parliament.
“We now have around 200 Article Eight cases a year, so it is vital and urgent that Parliament amends the law to mandate deportation and brush aside these spurious challenges to the rule of law.”
Ogundimu, 28, arrived in the UK 22 years ago. Tracked down by The Telegraph at his girlfriend’s flat in Chislehurst, south-east London, he said that he was pleased at the decision made by the Immigration and Asylum Upper Tribunal.
“It’s totally wrong to send people back like that because their family lives are here,” he said. “If people are a danger to the public and doing serious offences then send them back, but with me, yeah, I’ve got a criminal record but did not do anything serious.”
He came to Britain aged six in 1991 with his family. Ogundimu first appeared in front of the juvenile courts aged 14 for obtaining property by deception.
He has 30 offences on his criminal record, including an eight-month prison term for possession of cannabis with intent to supply, in 2008.
In 2010, the Home Secretary decided that Ogundimu should be sent to Nigeria to protect the public. Ogundimu fathered a son with a British woman in 2004 and the court heard that he looks after the boy occasionally.
It also heard that Ogundimu is now in a relationship with the mother’s cousin, who is expecting his baby, which was conceived after deportation proceedings began.
The Home Office argued that Ogundimu was not in a “genuine and subsisting relationship” with his son or his girlfriend and that his removal would not breach Article Eight.
He was arrested for possession of cannabis in October 2012, for which he received a caution, but now claims he is trying to lead a blameless life.
Ogundimu moved back in with the mother of his child in June 2010 after being in prison. The judge said that he admitted doing so to convince immigration authorities that he had a genuine family life. He left her for his new girlfriend a year later.
After hearing evidence from Ogundimu’s current partner, the court decided that they were in a genuine relationship and the criminal was also playing a beneficial role in the upbringing of a nine-year-old step-daughter.
Mr Justice Blake’s ruling also indicated that the new rules on applying Article Eight should not be imposed retrospectively, even though Mrs May set out that they should.
The immigration rules say a criminal should not be deported if he or she has a British child and “there is no other family member who is able to care for the child in the UK”.
The judge undermined this by saying: “We doubt whether it is in any child’s best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them.”
A Home Office spokesman said: “The Government has made clear its intention to bring forward primary legislation to prevent foreign nationals remaining in the UK through abuse of the Human Rights Act.” Source: The Telegraph.
Human rights lawyer, Geoffrey Robinson told the BBC last week 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 unfair rules.
Immigration Law Practitioner Cynthia Barker noted that the government are not just getting tough on hard criminals, but on all immigration cases involving human rights issues or even minor convictions, cautions or CCJ’s for debts.
“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: