“We will change the immigration rules to ensure that the misinterpretation of Article 8 of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here.”
Theresa May, 4 October 2011
The Conservative conference is traditionally a showcase for new government policies seemingly designed to appeal to the party faithful, and this year has been no exception.
The home secretary said she’d like to scrap the human rights act (HRA), a piece of legislation she blamed for the fact that ministers are “constrained from removing foreign nationals who, in all sanity, should have no right to be here”.
Tearing up the HRA doesn’t appear to be a political possibility, though. Justice Secretary Ken Clarke and Deputy PM Nick Clegg are though to be implacably opposed to such a move.
What does Mrs May propose to do to make sure foreign criminals don’t get to hide behind human rights law, and is there any justification for such a move?
Foreigners fighting deportation tend to rely on two parts of the European Convention on Human Rights (ECHR), which is now enshrined in British law by the Human Rights Act.
Article 3 provides a defence for people who fear they will be tortured if they are sent back to their country of birth.
Article 8 – the bit that annoys Theresa May so much – is designed to protect a person’s family life.
As she herself pointed out in her speech, Article 8 doesn’t provide a way out for every criminal with a family. It obliges the tribunal to weigh the potential breach of the individual’s rights against other factors including national security, public safety and “the prevention of disorder or crime”.
But the Home Secretary appears to think that the courts are failing to find the proper balance, as she illustrates with some examples that have already hit the headlines.
Mrs May said: “We all know the stories about the human rights act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend.
“The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.”
Despite Mrs May’s protestations, the cat story was such a big whopper that we felt it deserved its own FactCheck.
What about the other examples?
There’s no dispute that the “violent drug dealer” Mrs May mentions was certainly both of those things.
The Trinidad-born man, know only as AP, was convicted of common assault in 2006 (when he was 18). And he was later given a community sentence for battery against his partner and admitted possessing cocaine with intent to supply, an offence that got him 18 months in a young offender’s institution.
But it’s not the job of the immigration tribunal to deport someone as an additional punishment.
The tribunal decided to let AP stay in the country – against the wishes of the then-Home Secretary Jacqui Smith, because he’d been living in the UK since the age of four, most of his family live here, and he was “a good and caring father” to his baby daughter.
There are fewer details available about the second case, which we presume is the widely reported story of a 22-year-Sri Lankan allowed to stay despite being given 15 months for robbery.
What we do know is that the convicted man had been living in Britain since the age of 13, had been given exceptional leave to remain, and had been involved in a relationship for five years.
The third case had very little to do with a cat and nothing to do with the human rights act, as we have seen.
The point about all these cases is that they were complicated. There were a host of facts specific to each situation that the judges had to weigh up before coming to their decision. No news story could do justice to the wealth of detail the court was obliged to consider.
A tribunal has to decide whether it’s right to send a “foreign criminal” back to a country where they no longer have a home or any family connections, and they have to take into account the effect on the convicted person’s immediate family.
There are numerous examples of tribunals rejecting applications made by foreign criminals, deciding that their family ties in the UK were weak, and sending them packing.
So if it’s not helpful to dwell on a few headline-grabbing cases, what do the statistics tell us about the overall picture?
The figures, as reported this week by the Press Association and the websites of the Guardian and Evening Standard among others, certainly suggest that appeals using Article 8 are commonplace.
All those news outlets reported that there were 233 appeals against deportation last year, 149 of which were successful on human rights grounds – 102 of them citing Article 8 alone.
That’s a worringly large proportion. There’s only one small problem. The numbers are completely wrong.
They were revealed by the Ministry of Justice in response to a Freedom of Information request made by the Conservative MP Dominic Raab.
The Ministry later put out the correct figures, though these unfortunately weren’t as widely reported as the wrong ones.
In fact, during 2010, there were 850 appeals against deportation heard. Of those, 233 were allowed and 617 were dismissed. Of the 233 allowed, 102 were successful by Article 8 alone and a further 12 were allowed because of potential breaches of Articles 3 and 8.
So on those figures, only about 12 per cent of the appeals were upheld last year because of a potential breach of Article 8.
What can the government do?
It’s not clear exactly what Mrs May proposes to do to stop the ECHR being used as a potential source of appeals.
Leading human rights lawyers told FactCheck that any change in immigration rules would still be inferior to the human rights act, which enshrined the convention rights in domestic law.
So while the home secretary could, for example, put a stronger obligation on the immigration authorities to try to deport more criminals, the tribunals hearing the cases would still have to bear in mind the same balance of factors.
Professor Francesca Klug from the London School of Economics said such a change in the rules “would not have any strength in law unless there was an act of parliament”.
“Constitutionally speaking, it is window dressing. The courts are not bound by it.”
And even if Mrs May overcame opposition from Mr Clarke and Nick Clegg and scrapped the human rights act, that would not be the end of appeals under Article 8 of the convention.
Britain signed up to the ECHR in the aftermath of World War Two and British courts would still be subject to appeals in Strasbourg if their decisions were found to contravene its principles.
Sir Geoffrey Bindman, founder of the human rights law firm Geoffrey Bindman, told FactCheck Mrs May was being disingenuous by talking about tearing up the HRA.
He said: “It can’t really be done, because we are bound by the convention. We would have to pull out of Europe altogether. This is a convention which we are bound by and have been bound by since 1950 – and which of course was largely drafted by Tory lawyers.”
He goes further: “Whether the courts decide rightly or wrongly, there is always going to be this kind of balanced judgement. You can’t exclude family life, even if we were not in the Convention, any reasonable system would not make deportation an absolute requirement in every case.”
The statistical evidence – sadly still being widely reported in its uncorrected form – doesn’t point to a wholesale abuse of human rights law.
And legal experts can’t see how anything Mrs May does can force the courts to change the balance they already have to strike, no matter how much controversy some of the decisions provoke.
The Home Secretary remains defiant, saying: “Our opponents will say it can’t be done, that they will fight us every step of the way. But they said that about the cap on economic migration, and we did it.”
Until we see exactly what she has up her sleeve, the needle’s going to stay in Fiction territory.
By Patrick Worrall