Announced barely a month ago, new immigration rules on family migration have come into effect. Alongside changes including a new income requirement of £18,600 for people wanting to sponsor a partner to come to the UK, and an extended probationary period of five years (it currently stands at two) before spouses and partners can apply for settlement, the amended rules also set out how Article 8 of the European Convention on Human Rights – the right to respect for private and family life – should be applied by the UK Border Agency and courts in immigration cases, including deportation cases.
Trailing the new rules on deportation in an interview with the Sunday Telegraph back in April, Theresa May said that they were necessary to end the ‘abuse’ of Article 8 by foreign nationals convicted of criminal offences; announcing them to the House of Commons last month, she insisted that they would ‘put the law back on the side of the British public … not foreign criminals’.
It’s difficult to understand what the first charge leveled by the Home Secretary, that of abuse of Article 8, is based on.
As a briefing from the London School of Economics’ Human Rights Futures Project has highlighted: ‘there is a discrepancy in the figures on deportation, between those from the Court Service and those from the UK Border Agency. In 2010 there were between 102 [Court Service figures] and 425 [UKBA figures] deportations prevented on grounds of Article 8’. As it goes on, however, ‘compared to the number of deportations that took place in 2010, the number of deportations that were prevented on Article 8 grounds is relatively very small. In 2010, 5,235 foreign national prisoners were deported from the UK. Therefore, of those people who faced deportation in 2010, the proportion who won their appeal on Article 8 grounds is between 2% and 8%.’
It would, moreover, have to be a fairly extraordinary foreign national prisoner who manages to ‘abuse’ the current system, since, in spite of the Home Secretary’s concerns, it is very firmly not on their side. As I’ve written previously, immigration legal advice in prison is difficult to come by. Without this advice and assistance, foreign national prisoners, many of whom will struggle with the barrier of language, and most of whom are unlikely to have a detailed knowledge of the complexities of immigration law, are expected to prepare their own appeal against deportation. They are, additionally, supposed to manage this whilst held in prison, where there’s unlikely to be ready access to the resources they’d need to even think about doing this.
Of course, at the moment, some foreign nationals do manage to get legal advice and representation – although from April 2013, when deportation cases are taken out of scope of the legal aid scheme, this won’t be the case.
Access to a solicitor, however, hardly makes for a system that, as Theresa May’s zero-sum formulation would have it, has picked the side of ‘foreign criminals’ over the British public, and neither do the decisions of the courts on Article 8 appeals.
Cases where deportation has been found not to breach Article 8 rights include those of individuals who have lived in the UK for decades – including those who have come to the country as young children – and who have partners, children, and even grandchildren in this country.
The new rules on the application of Article 8 introduce a lofty threshold for cases to meet for deportation to be deemed disproportionate. Moreover, by setting out a ‘one size fits all’ approach, they do not ‘provide for a consistent and fair decision-making process’, as the government has claimed, but pave the way for poor decisions by refusing to allow the specific facts and circumstances of a particular case to be taken into account. Against a backdrop of increasing barriers to accessing advice and assistance for foreign nationals in prison, this should be of real concern.
Deportation is a serious sanction, and one that is imposed on people who have already, it should be remembered, served prison sentences for the offences they have committed. If it is to be used, those facing expulsion should be able to access assistance so that they can understand their situation and, if they wish, exercise the rights provided for them by law. There also needs to be careful, detailed consideration of individual cases. To ensure this is not to be on anyone’s side, or to privilege the rights of one group over another; it is, quite simply, to respect the values of fairness and justice that should be at the heart of a humane society.