Parliament expected to rally around UK immigration rules

- Posted in United Kingdom by Visa Bureauon 19 June 2012

Under current legislation, a foreign national convicted of a criminal offence will be deported unless they can prove they have genuine and legitimate grounds to remain in the country.

The grounds are usually based on Article 8 of the European Convention on Human Rights:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

However, a multitude of cases in recent years has led the Home Secretary Theresa May to claim the right is being exploited to allow violent and dangerous criminals to avoid deportation. Mrs May contends British judges are 'softer than their European counterparts' in enforcing the law.

Cases of Article 8 being used to keep violent offenders in the country include Rohan Winfield who was sentenced to three years for rape. The Barbadian national was allowed to remain in the UK after convincing the judge that separating him from his wife and three children was in breach of his human rights, despite having previously left his wife and fathering a fourth child with another woman.

Another case involved Jamaican national Gary Ellis who was convicted multiple times for supplying Class A drugs and attempted robbery. Ellis thwarted the Home Office's attempts to deport him twice on the grounds that his young daughter would benefit from having her father involved in her life, despite her mother claiming he barely maintained contact with his daughter.

Advocates for increased immigration control have frequently criticised the right as a legal loophole open to simple exploitation and called for greater scrutiny in the right's application. Sir Andrew Green, chair of immigration watchdog MigrationWatch UK said: "The courts should not accept claims to family life without closely examining the evidence".

Mrs May, who has also spoken of her frustration at the abuse of Article 8, first promised to address the issue at the Conservative Party conference last year. However, her citation of a case involving a Bolivian man who was ostensibly allowed to remain in the country due to him owning a cat was quickly proved to be false and the home secretary was widely derided.

Last week Mrs May said she would ask for parliament's backing in an effort to convince judges to give priority in such cases to deporting criminals who present a risk to public order or the economy over the right to family life.

"This is not an absolute right. So in the interests of the economy or of controlling migration or of public order, those sorts of issues, the state has a right to qualify this right to a family life," said Mrs May.

"What I am going to do is actually set out the rules and say this is what parliament, this is what the public believe is how you balance the public interest against an individual's interest. We are going to ask parliament to vote on this to say very clearly what constitutes the right to a family life. I would expect that judges will look at what parliament has said."

Mrs May said that if judges refused to consider the recommendations of the parliament, she would bring in legislation that could put her in direct contradiction with the European Court.

The Home Office was today ready to make recommendations which will come into effect next month and will ask parliament for its support. Announcing the changes, Immigration Minister Damian Green said: "For too long, foreign nationals convicted of serious offences in the UK have been able to use weak human rights claims to avoid deportation.

"Today, for the first time, parliament will set out when, in its view, the rights of the law abiding majority should outweigh a foreign criminal's human rights claims."

The changes will stipulate that any foreign national from outside the European Economic Area who is jailed for at least four years should 'almost always' face deportation and those jailed for between one and four years should normally be deported unless there are 'exceptional circumstances'.

The exceptional circumstances include being involved in a genuine and lasting relationship, having lived in the UK for at least 15 years and removal would present 'insurmountable obstacles' to the relationship.

If there are children involved, defendants would have to prove there is no other potential guardian and why it would be unreasonable for the child to leave.

Most politicians are equally frustrated at the rule's exploitation yet many are doubtful that Mrs May's changes will have a noticeable effect and have called for primary legislation to address the issue fully.

While Mrs May is expected to receive the support she is asking for, Dominic Raab MP said: "Ministers are absolutely right to target spurious claims to the right to family life by criminals to trump deportation orders.

But if we're seriously about tackling the problem we will need primary legislation."

The UK Visa Bureau is an independent UK immigration consultancy specialising in helping people prepare for their UK Ancestry Visa application.