Duncan Lewis

Shepherds Bush Office

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Immigrating , Family and Housing

Home office to appeal against the case of MF

Date: (21 February 2013)    |    

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Further to the row which has erupted between Theresa May and some immigration judges over the deportation of foreign criminals the government is planning to appeal against the case of MF.
The home secretary is all confidence personified that her arguments would be well received in the Court of Appeal, though it went against the Home Office in the Upper Tribunal (Immigration and Asylum Chamber).
Issue of deportation of foreign criminals as believed by some was a disagreement between senior judges and their more activist juniors rather than a clash between different arms of government. Theresa May’s team had been at pains to point out that the majority of senior judges supported her case and to support their argument they even quoted a High Court judge in her article published in Mail on Sunday.
The judge was cited quoting that the “new rules were unquestionably valid laws, democratically enacted under a procedure which was necessary for the efficient practical functioning of Parliament”.
Mr Justice Mostyn wrote those words in a recent judgment on an application for the judicial review of an immigration case. There Mostyn was responding to a minor point raised by the immigration solicitor of the claimant who had made a challenge to the democratic testimony of the rules as a whole which Mostyn had rejected.
But the argument of democratic legitimacy of the rules has no bearing in the present row. As the judges have quoted in Times that even though rules has democratic content the question was whether Article 8 a relevant piece of primary legislation in the present disputes could be overridden. The general view on this issue was the rules did not supersede the Human Rights Act and that it was inappropriate for the Home Secretary to interfere.
If the changes to the rules were not giving desired results then the government has promised to introduce primary legislation. One such legislation could be the formula adopted in the UK Borders Act (2007). It includes a presumption of deportation for those foreign nationals who have been sentenced to a year or more.
Therefore though the courts never had any problem with the presumption because deportations still had to be consistent with the ECHR the government will have to draft legislation which would override Article 8 whilst still comply with the ECHR.
Government’s case is based on the fact that the Article 8 is not absolute and that restrictions necessary in democratic society could be applied in accordance with the law.
The government says, not unreasonably, that deportation is one such necessity in certain cases to protect public safety and economic interests as it concerns with illegal immigrants such as fraudsters and thieves as much as rapists and murderers.
The government’s challenge seems to be daunting, but it is not impossible and the government seems to be confident that it can work out a solution.
The Home Secretary’s intention this time round seems to limit judicial independence by making judges follows the clear immigration rules as per the ‘wishes of parliament which has not gone well with so many judges and lawyers. They attacked the notion of “wishes of parliament” with reference to the unassailable position of the Human Rights Act and the ECHR.

 

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