Home Secretary Theresa May is heading for a showdown with the judiciary over the rights of foreign prisoners and visa overstayers to avoid deportation on Human Rights grounds.
May said she would bring in primary legislation if judges failed to implement new rules and guidelines expected to be introduced.
The Home Office will be seeking the backing of Parliament to give priority to deportation above the right to family life enshrined in article 8 of the European Convention on Human Rights (ECHR).
MPs are to be asked in the next few weeks to approve a Commons motion advising the judges that the right to family life is not absolute and should be overridden if doing so is in the national interest.
A major overhaul of the rules on family migration will be outlined later today which will mean UK citizens earning less than £18,600, depending on the number of children involved, will not be allowed to bring a foreign husband, wife or partner into Britain to live with them.
The gross income threshold is lower than the minimum £25,700 figure that May tried to persuade coalition partner Nick Clegg to accept, according to a letter leaked in March. The Conservative Home Secretary said a minimum gross income of £24,800 would be needed if there were two children involved, with a further £2,200 for each extra child. It is believed that as many as 25,000 families a year could be affected by the changes.
Critics say British citizens will face a choice of exile or splitting up their families, and warned that it would lead to a string of legal challenges under article 8.
The home secretary first promised action over article 8 at the Tory party conference last year, when she cited the case of a Bolivian man and his pet cat.
On Sunday she told the BBC she was now prepared to bring in legislation if the judges ignored the will of parliament in redefining the right to family life.
“This is not an absolute right. So in the interests of the economy or of controlling migration or of public order – those sorts of issues – the state has a right to qualify this right to a family life,” she said.
“What I am going to do is actually set out the rules and say this is what parliament, this is what the public believe is how you balance the public interest against an individual’s interest. We are going to ask parliament to vote on this to say very clearly what constitutes the right to a family life. I would expect that judges will look at what parliament has said.
“If they don’t then we will have to look at other measures and that could include primary legislation.”
But leading human rights lawyers warned that ministers could not use secondary legislation such as the immigration rules to dictate to judges or trump their interpretation of article 8.
“Parliament cannot predetermine the results of individual cases, which all depend on careful and compassionate assessment of very different facts. However merciless Mrs May may be, hard cases make bad law and politicians make bad judges,” Geoffrey Robertson QC told the Sunday Times.
Sir Geoffrey Bindman said: “Any change is ineffective because ultimately what controls the situation is article 8 as interpreted by the court of human rights and the domestic courts.
“The legal position is that in so far as the immigration rules are incompatible with the human rights convention then the convention prevails.”
Home Office figures show that 185 foreign prisoners successfully appealed against deportation last year after citing article 8. Under the new rules, foreign prisoners sentenced to between 12 months and four years would be deported in the public interest unless they had been resident in the UK for 20 years or had a foreign child who had lived here for seven years. Criminals given shorter sentences who have caused “serious harm” or who are persistent offenders would also be deported.
Visa overstayers will also find it more difficult to remain in the UK based on a relationship or a child in the UK.
The UK Border Agency recently announced that a clause in the Crime and Courts Bill will take away the full right of appeal for those applying to enter the UK as a family visitor.
If you need any immigration advice, have been served with a removal or deportation order, or need advice on an appeal against a refusal please email: