The truth about our human rights laws, by the Secret Barrister

Few cases raise more hackles than foreign nationals breaching our criminal law, only for the govern­ment’s attempts at deporting them to be frustrated.

An extract from Fake Law: The Truth About Justice in an Age of Lies by the Secret Barrister


A vow to repeal the Human Rights Act and replace it with ‘a modern British Bill of rights’ has been renewed at regular electoral intervals, although is still – nearly a decade after the Conservative Party re-entered government – to come to fruition. The anger towards the Human Rights Act nevertheless shows no signs of subsiding. Justice Minister Edward Argar suggested in 2019 that scrapping the Human Rights Act would still very much be on the government’s agenda once the United Kingdom had left the European Union, and Dominic Cummings, the architect of the Vote Leave campaign in the EU Referendum and subse­quently senior advisor to Prime Minister Boris Johnson, has promised, ‘We’re leaving the EU . . . Then we’ll be coming for the ECHR.’

But this, as we have seen, is the same legislation that delivered justice to rape victims who would otherwise have been left high and dry by the good ol’ British justice system. So what is the truth about our human-rights laws? And why might the government be so eager to take the Human Rights Act away from you?

[…]

I fear that we are too often thrown off track from measured and informed debate over the nature of our protected rights by selected examples of human-rights cases presented as egregious distortions of what the law actually says. Some of the most famous stories are simply lies. The front page of the Daily Mail on 15 December 2017 carried the headline ‘Another human rights fiasco!’ above a story claiming that a ‘suspected Iraqi insur­gent’ who was ‘caught red-handed with a bomb’ had ‘won £33,000 – because our soldiers kept him in custody too long’. The front page carried a rented quote from Colonel Richard Kemp decrying the ‘insanity’ of ‘courts decid[ing] the human rights of terrorist suspects are more important than the human rights of potential victims’. The truth was that the Iraqi man in question, Abd Al-Waheed, was neither an insurgent nor a terrorist (as the court awarding compensation confirmed), had not been caught ‘red handed with a bomb’ (described by the same court as ‘pure fiction’) and had only been awarded £3,300 for being unlawfully detained, the balance representing compensation for inhuman treatment (breach of Article 3) after Mr Al-Waheed was beaten with rifle butts, punched in the face, and subjected to abuse and sleep and sensory deprivation by British soldiers while in custody. Follow­ing a ruling by the Independent Press Standards Organisation (IPSO), the Mail was forced to issue a full-page correction.

[…]

Perhaps the most potent bane of the tabloid press is Article 8, the right to respect for a private and family life, and its interac­tion with immigration law. Few cases raise more hackles than foreign nationals breaching our criminal law, only for the govern­ment’s attempts at deporting them to be frustrated. It is why Theresa May as Home Secretary told Parliament in 2013 that ‘some judges have [. . .] chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public’. And why, that same year, she put her name to a Mail on Sunday piece entitled, ‘It’s MY job to deport foreigners who commit crime – and I’ll fight any judge who stands in my way’.

And make no mistake – this is a valid public concern. The expectation that a foreign national committing a serious offence should forfeit the privilege of remaining in their host country is enacted in legal systems across the world, and I expect many people would agree with the broad principle. However, it will inevitably be subject to limits. One arises from Article 3 – the prohibition on torture. We don’t deport people, however undesir­able, where there is a risk of the receiving state subjecting them to that sort of harm, in the same way that we don’t send people to their deaths at the hands of foreign executioners. To do so would make us complicit; blood would be on our hands, even if the axe, noose or syringe were wielded by a Saudi, Iranian or American official.

Article 8 is different. It is, as we’ve seen, a qualified right. It is absolutely not, as the Sun on Sunday columnist Tony Parsons claims, ‘better than a British passport’. But it is something that courts have to take into account when balancing the public inter­est in deporting criminals with the individual’s rights.

Space prevents a full analysis of the workings of immigration law, but the statistics show that a small minority of appeals by foreign nationals facing deportation – 14 per cent in the year that Mrs May was bobbing up and down in the ring and issuing smack talk to judges – actually succeed on Article 8 grounds. There is a legal presumption that any foreign national sentenced to a prison sentence of twelve months or more will be liable for deportation, and the courts have made clear – again, in the same year as Mrs May’s open challenge – that ‘it is only excep­tionally that such foreign criminals will succeed in showing that their rights under Article 8(1) trump the public interest in their deportation . . . The scales are heavily weighted in favour of deportation and something very compelling (which will be “exceptional”) is required to outweigh the public interest in removal.’

But occasionally, in that minority which somehow find their way from the Home Office to the editor’s desk, the courts will rule that, even though an individual has committed a serious criminal offence, to deport them would constitute such a grave interference with their family life – would have such far-reaching and severe consequences – that the balance tips in favour of allowing them to stay.

One of the difficulties in aiding public understanding is that most such decisions are made by immigration judges sitting in the First-tier Tribunal, whose judgments are not easily accessible by the public. It is only when cases are appealed to the Upper Tri­bunal (Immigration and Asylum Chamber) or beyond that judgments are routinely published. But what we can see in the reported cases is that, where Article 8 arguments succeed, the courts explain at great length how the competing interests have been balanced, and how cases meet the ‘exceptional’ circum­stances requirement. It is never, as Mr Parsons thoughtfully told his readers, as simple as a court allowing an Article 8 argument because a ‘foreign felon has knocked up some local slapper’.

Often, it will not be the right of the foreign national which informs the decision as much as the right of his children, whose interests, you will recall from earlier, play a primary role in court decision-making. It is possible for people who have done dreadful things to nevertheless be caring and doting parents, without whose love and support a family unit might crumble. If a non-UK national has lived here for many years and has a British partner and young British children who know nothing of life outside this country, the parent’s threatened removal poses a horrific, insolu­ble dilemma. Do they rip the children out of school, away from friends and family, and move them thousands of miles away to a land they have never known, where they might not even speak the language, so that the family unit remains intact? Or does the family attempt remote parenting – a permanent, long-distance relationship kept afloat by annual visits and buffering Skype chats? In some cases, imposing such a burden on the children cannot be avoided. But, in some, it can, and it must.

A hugely controversial case with which readers may be famil­iar is that of Mohammed Ibrahim. In 2010, the Prime Minister told the country, ‘We have an Iraqi asylum seeker who has killed a child and there is no way he can be sent back.’ Mr Ibrahim was an Iraqi national who entered the UK illegally in 2001. His asylum claim was refused, but no action was taken to effect his removal. On 24 November 2003, he was involved in a road traf­fic accident involving a twelve-year-old girl. Ibrahim fled the scene, leaving the child to die under the wheels of his vehicle. He was at the time disqualified from driving and uninsured. He was convicted and imprisoned, but when the Home Office attempted to deport him, Ibrahim successfully appealed on Article 8 grounds. The case understandably filled headlines for months. But much of the vital explanatory context was omitted.

Firstly, although described as the ‘asylum seeker death-crash driver’, Ibrahim was never prosecuted for causing the girl’s death. He was convicted instead of offences of disqualified driv­ing, having no insurance and failing to stop after an accident, which carry a total maximum of six months’ imprisonment (he was sentenced to four). While he shouldn’t have been driving, and while his conduct in fleeing the scene was cowardly and repre­hensible, the Crown Prosecution Service appeared to form the view that the evidence did not show that there was anything in the manner of Ibrahim’s driving or his behaviour that led to the tragic fatality. Nevertheless, given that he had no lawful basis for being in the UK, and was in the custody of the state as a prisoner, the Home Office could easily have taken steps to remove him in 2003. But it didn’t. Instead, it waited until 2009. In this interval, Ibrahim developed a family life. He had two children and became de facto father to his partner’s children from a previous relation­ship, who ‘spoke in glowing terms of [Ibrahim] as a father’.  The Immigration Tribunal heard evidence from his partner and the children, and ruled that this was ‘a strong family unit, which has been subjected to a number of stresses over the years and has withstood them’. The children were all British citizens and had spent their entire lives in the UK. The judge found that, having regard to the best interests of the children, the disruption and interference in their family lives would not be proportionally justified if Ibrahim were removed.

Now, you may reasonably disagree with this decision. As the Upper Tribunal noted when the Home Office appealed in 2010, Ibrahim’s general behaviour was reprehensible, and his persistent criminality ‘gives rise to deep-seated and understandable anger not only from her grieving parents but also the public more gen­erally. His presence continues to give pain to [the girl’s] family.’ You may say that the rights of the four blameless children should cede to the public interest in deporting a man with no legal right to enter the country, who went on to commit imprisonable offences. But it is simply wrong to suggest that this case – or any other – shows Article 8 providing an automatic right to remain. The court at every tier struggled with the difficult balance between the rights of those involved – applicant and his children – and the public interest in deportation. Evidence was called, witnesses were cross-examined and a fully reasoned judicial deci­sion was given, and then scrutinised and upheld on appeal.

Anger might better be directed at the Home Office, which failed to take any action to remove Ibrahim in 2003, when it had ample opportunity. As the tribunal said, ‘[T]he reason he has become entitled [under Article 8] is the Secretary of State for the Home Department’s delay in making a lawful decision in relation to his removal.’

I am of course not suggesting that, in every Article 8 case, the court strikes the right balance. There will undoubtedly be cases in which the public are right to be aggrieved, and where politi­cians feel justifiably frustrated that undesirable characters are permitted to remain. But to adopt Parsons’ Law and suggest that Article 8 is ‘better than a British passport’, and that the easy solution in every case is to ‘kick them out’, is in defiance of both reality and humanity. These are rarely simple cases. The right to a family life, although not absolute, is nevertheless important in a way we all, if we think about our own lives, immediately, instinctively understand. The Windrush scandal in 2018 was a stark, brutal demonstration of what happens when due process and human rights are subjugated to populist, kick-’em-out agen­das. President Donald Trump’s order, in 2017, to forcibly separate 2,000 children from their asylum-seeking parents at the southern border was eventually injuncted, over a year later, by a San Diego judge, but, as Lord Wilson of the UK Supreme Court told an American audience, Article 8 would mean ‘that our courts would have stopped the abuse more quickly’. Lives are overturned by these decisions. It is only right, surely, that the courts give them careful consideration.

The statistics show that successful Article 8 appeals are a minority, but the media don’t report the thousands of successful deportations of foreign offenders, nor the majority of cases in which Article 8 is unsuccessfully raised. Instead, by seizing solely on the ‘exceptional’ cases, those who so desire can misrepresent them as the norm.

And it is in the unreported cases that the everyday value of human rights is often most keenly felt.

This is an edited extract from Fake Law: The Truth About Justice in an Age of Lies by the Secret Barrister - out now from Picador and available in hardback, eBook and audiobook formats. 
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The Secret Barrister

Best-selling author of The Secret Barrister: Stories of the Law and How It's Broken (Picador: 2018), and Independent Blogger of the Year (2017 and 2016 Comment Awards), the Secret Barrister is a junior barrister specialising in criminal law and blogs at thesecretbarrister.com. Fake Law: the Truth About Justice in an Age of Lies by the Secret Barrister was published by Picador on 3 September 2020.