A senior British Immigration Judge has been ordered to scrap a ruling which allowed a foreign killer to stay in Britain on human rights grounds.
The Court of Appeal judges quashed the ruling in which Mr Justice Blake and a colleague allowed Rocky Gurung, from Nepal, to remain in the UK.
They said the original judgment suffered from an “error of approach” and looked like “a search for reasons for not deporting him”.
The decision landed Mr Justice Blake in a second controversy, only days after he was criticised for permitting an Indian male nurse to remain in Britain following a jail term for indecently assaulting a woman patient.
It is expected to increase pressure on immigration judges amid growing concerns over how criminals are exploiting human rights laws.
David Cameron, the Prime Minister, has expressed alarm at the way human rights are preventing dangerous offenders and terrorists such as Abu Qatada from being deported.
Damian Green, the immigration minister, last night joined relatives of Gurung’s victim in welcoming the Court of Appeal’s decision. It means the case will now have to be heard again by the Upper Tribunal Immigration and Asylum Chamber, of which Mr Justice Blake is president.
Gurung came to Britain in 2005, just three years before he committed the crime.
The victim of his attack, Bishal Gurung (no relation), was a hard-working waiter whose father Cpl Khem Barsad Gurung served with the Gurkhas for 16 years.
In April 2008 Bishal was working at a Nepalese restaurant in Esher, Surrey, when he came to London to celebrate Nepalese new year.
After leaving a party on a boat on the Thames in the early hours he was chased along the Embankment by 10 to 15 men including Rocky Gurung.
The Old Bailey heard the gang falsely accused Bishal of hitting another man, Kemik Thakali, with a bottle.
One witness told the court that Bishal was “on his hands and knees” being kicked or beaten by seven or eight men and was then thrown into the river by Rocky Gurung and Thakali, from Morden, south-west London.
Bishal’s body was in the Thames for two weeks before it was found.
Rocky Gurung and Thakali were both jailed for three years for manslaughter.
The law says offenders jailed for 12 months or more are subject to “automatic deportation” but there is an exemption if removing them would breach their human rights.
At the end of his sentence Rocky Gurung, also a Gurkha’s son, appealed against the Home Office’s decision to deport him, and lost.
He then appealed again to the Upper Tribunal – the case overseen by Mr Justice Blake.
He claimed that deporting him to Nepal would breach his “right to family life” even though he was single, had no children and lived with his parents.
In a judgment first disclosed in January last year, the court ruled in the killer’s favour that deporting him would be “disproportionate”.
The Home Office later appealed to the Court of Appeal and a panel led by Lord Justice Rix concluded Mr Justice Blake’s decision was faulty.
“It appears to us that there has been an error of approach on the part of the Upper Tribunal,” ruled the three appeal judges.
They said they were “troubled” by the conclusion of Mr Justice Blake that the “nature and seriousness” of the offence did not in themselves justify interference with Rocky Gurung’s human rights through deportation. Such an argument “misplaces the emphasis”, said the panel.
“Much of the determination has the appearance of a search for reasons for not deporting him rather than – as in our view it ought to have been – an inquiry into whether, despite the statutory policy of automatic deportation, article 8 of the Convention would be violated by its implementation,” they said.
Bishal’s sister Karuna, 29, from north London, said: “The previous decision was completely wrong. I am extremely happy it has been thrown out. I would like to see Bishal’s killer deported.”
Ian Macdonald QC, the chairman of the Immigration Law Practitioners’ Association, said: “I’m sure Mr Justice Blake will be feeling like he’s been rapped on the knuckles, but that is how the law works. This is why we have an appellate system.”
The case also illustrates the tortuous legal process faced by the government to deport serious foreign criminals, with the cost of the Gurung case thought to run into tens of thousands of pounds.
Mr Justice Blake, as Nicholas Blake QC, was previously a human rights barrister at Matrix Chambers, which is most closely associated with Cherie Blair, the wife of former prime minister Tony Blair.
He was knighted in 2008 and appointed president of the Upper Tribunal Immigration and Asylum Chamber in 2010.
Previously he co-authored the legal textbook Immigration, Asylum and Human Rights.
In a judgment published at the end of last week, Mr Justice Blake allowed Milind Sanade, a male nurse from India, to remain in Britain despite being convicted of indecently assaulting a pregnant 21-year-old patient and asking “Does this feel good?”
The Home Office tried to remove Sanade at the end of his prison sentence under automatic deportation rules but Mr Justice Blake and a colleague upheld his second appeal under Article 8 of the European Convention on Human Rights, which enshrines in law the right to a private or family life.
Sanade, of Chelmsford, is married with two children born in England. Yesterday his family were not at home, and neighbours said they had gone away.
Because Sanade has now been now struck off the nursing register and is under other restrictions which prevent him working unsupervised with women, the judges said: “He is more regulated in his future conduct in the United Kingdom than he would be in India.
“Whilst we recognise that this was an offence involving gross breach of trust this is not criminal conduct at the higher end of the range of seriousness.”
Sanade, 36, said last night: “I’m just glad to put my sentence behind me. I’m sorry for what happened but I’ve served the time and now I should be here in the UK with my family.”
Other similar appeals considered by Mr Justice Blake at the same time, involving two Jamaican criminals each with children holding British nationality, were rejected. Source: The Telegraph.
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