Posted on Dec 15, 2021
The UK government noted in a consultation document published on Tuesday: “Since 2000, human rights claims have been brought by many people who have themselves showed a flagrant disregard for the rights of others. We have seen, for example, the right to respect for a family and private life used to avoid deportation by foreign offenders who have committed serious crimes.” (Ministry of Justice, December 2021).
It is high time for the law to be overhauled and updated for the modern era. It has been far too open to exploitation by those with no right to be in the UK. For example, two thirds of successful appeals against deportation relate to Article 8, the right to family life. Some potentially dangerous foreign criminals have been able to seize on parts of the European Convention on Human Rights – enshrined in UK law by the Human Rights Act – as means of remaining here when it was in the clear public interest that they be removed. This has greatly undermined public safety. Any reform to inject common sense into the operation of human rights law is welcome. We also need to reduce the pull factors that encourage migrants to come here illegally, both in cross-Channel boat trips and hidden in vehicles, from safe countries such as France. Making it easier to remove people who have been refused asylum would ensure that attempts at clandestine and irregular immigration are much less desirable. Major reform is also needed to clarify how judges should interpret Article 3 – originally intended to prohibit torture - in a way that respects the public interest. This too has seen too many instances of abuse.
Violent criminals allowed to remain in the UK on 'human rights' grounds.
In 2018, a Turkish national was convicted of an offence of grievous bodily harm and sentenced to 54 months’ imprisonment. In September 2019, the First Tier Tribunal allowed his appeal against deportation, on human rights grounds. After protracted litigation, relying on his period of lawful residence and marriage to a UK national, the Upper Tribunal allowed the appeal on Article 8 Convention grounds.
In 2016, a Nigerian national was convicted at trial of two counts of the possession of Class A drugs, namely crack cocaine and heroin, with the intention to supply, and the concealment or conversion of criminal property. He was sentenced to a total term of imprisonment of four years. In 2017, he pleaded guilty to two offences of violence; assault occasioning actual bodily harm and battery. He was sentenced to a total of eight months’ imprisonment, to run concurrently with the four-year sentence he was already serving for his earlier convictions. In 2020, the First Tier Tribunal allowed his appeal against deportation on Article 8 grounds. Before the Upper Tribunal, the Home Secretary argued that insufficient weight had been given to the public interest in deportation and that the findings that very significant obstacles would be encountered in integrating in Nigeria were not made out. The Upper Tribunal upheld the findings relying on his ‘very significant obstacles’ to integrating back in Nigeria.
Public protection: foreign national offenders (FNOs).
The Strasbourg Court and UK courts have incrementally expanded the restrictions on deporting serious foreign offenders under Articles 3, 6 and 8. In particular, since the Human Rights Act, the UK courts have expanded the scope for challenging deportation orders under Article 8, the right to family life.
Home Office internal data shows that, from April 2008 to June 2021, 21,521 appeals against deportation were lodged by FNOs. Of these, 6,042 FNOs had their deportation appeal allowed at the First Tier Tribunal, with around 40% (2,392) of them doing so on human rights grounds.
Furthermore, a review of a sample of recent cases indicates that a high proportion of successful human rights appeals at First Tier Tribunal are on Article 8 grounds. In the period 1 April 2016 to 8 November 2021, of 1,011 appeals against deportation by FNOs that were allowed on human rights grounds at First Tier Tribunal, an estimated 70% were allowed solely on Article 8 grounds.
These figures do not include those foreign national offenders who, after case law has been relatively well established on points related to the right to family life, are not served with deportation orders at all.
The expanding human rights restrictions on the government’s ability to deport serious foreign offenders engages the government in costly litigation, and puts the public at additional risk by enabling dangerous criminals to frustrate the process.
Some progress has been made in confronting the use of the Human Rights Act to prevent deportation of FNOs, most notably through the changes in the Immigration Act 2014, but serious problems arising from the Human Rights Act remain.
Compensation for prisoners denied access to drugs.
Between 2005 and 2011, the Prison Service in England and Wales faced successful claims from over 600 prisoners who claimed that their human rights were breached by the failure to provide them with methadone, Valium or other particular forms of treatment for their drug addictions.
The Prison Service has settled claims alleging a combination of negligence, inhuman and degrading treatment (under Article 3), the violation of the right to a privacy (under Article 8) and discrimination (under Article 14). This has cost the taxpayer around £7 million, including compensation paid out and legal costs.
The full consultation document is available here.
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