One of the common criticisms levelled against the Human Rights Act is that it restricts our ability to deport dangerous foreign criminals who are a risk to public safety. In particular, the media have fixated on cases where deportation appeals have succeeded because of Article 8, the right to a family life.
But is this the whole picture?
The full picture is somewhat more complicated. Anyone convicted of a criminal offence who has been sentenced to more than 12 months in prison, and who is not a British citizen, faces deportation. This is the presumption no matter the gravity of their crime or the strength of their connection to the UK.
The Human Rights Act is a safeguard which ensures that some degree of consideration is given to individuals who have lived in the UK since childhood, or who have a partner or child in this country who would find it difficult to follow a family member if that member were removed.
Although relevant statistics are hard to come by, the London School of Economics has estimated that only between 2 and 8% of deportation appeals were allowed on family life grounds in 2010.
In a detailed post, the Free Movement Blog reviewed the data and concluded that it was fairly unreliable, but overall, “contrary to popular belief, the era of the Human Rights Act has actually seen a massive downgrading of protection against deportation for foreign criminals”.
Has it always been like this?
No. Before 2006, the relevant legislation was the Immigration Act 1971. This said that anyone who is not a British citizen could be deported from the UK in two scenarios:
- if the Secretary of State deemed this to be ‘conducive to the public good’; or
- if a court recommended deportation in the case of an adult who had been convicted of an offence punishable with imprisonment.
However, the public interest in deportation had to be balanced against any compassionate circumstances in the case, including the person’s strength of connections with the UK and how long they had lived there. This system continued uninterrupted when the Human Rights Act came into force in 2000; no foreign criminal needed to rely on this new legislation as the immigration rules offered better protection.
So what changed?
Following a media outcry in 2006, the law changed. It was revealed that the Home Office had been wrongly releasing a number of foreign criminals without considering whether the public interest required their deportation. In response to this controversy the UK Borders Act 2007 introduced a legal obligation on the Home Office to pursue deportation against every foreign national sentenced to more than 12 months in prison (although it included exceptions for certain EU, human rights and refugee cases).
What has now happened is that that the old approach to deportation – which was flexible and live to the particular circumstances of an individual’s case – has been replaced by a blanket presumption that non-UK citizens who have been convicted of crimes should be removed. The Human Rights Act simply provides a low-level floor below which rights cannot be further reduced, ensuring that some cursory regard be paid to individual circumstances if these are exceptionally compelling.
What are the consequences of the change of law?
The human cost of this shift in legislation is considerable, not only on the individuals themselves but also on their UK-based family, friends and employers. It is important to tell the stories of the people who are sent back.
Luke de Noronha has written a remarkable account for Lacuna magazine based on lengthy WhatsApp conversations with Chris, a friend of his who was deported to Jamaica in his late twenties after serving time for low level drugs offences, leaving behind family in the UK including two young children. The conversations describe how Chris moved to the UK in childhood, and how Jamaica was only a distant memory for him..
An interesting feature of Chris’ case is that the court argued that his children were so young that he would not yet have had time to bond with them. Simultaneously, it made the point that he would be able to continue these family relationships over modern technologies such as Skype anyway. Such arguments are increasingly being used in these cases, yet examining how Chris’ relationships have deteriorated post deportation shows how flimsy these assumptions are.
In my view…
Far from being in the public interest, an automatic presumption in favour of deportation is a blunt tool and can do damage to the lives of British citizens. Returning to the previous system would result in less human suffering, and a fairer assessment of the merits of specific cases so that the interests of the individual and the public could be balanced.
Read our post on why the right to respect for private and family life matters.