The Human Rights Act 1998:
"An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes."
So reads the preamble to the Act of 1998. Pretty innocuous stuff really. So why has this Act provoked so many negative headlines? For examples: "Home Secretary Theresa May wants Human Rights Act axed"2, "Europe's War on British Justice."3
Very briefly, the European Convention on Human Rights and Fundamental Freedoms ("ECHR") is an international treaty, signed in 1950 by the then members of the Council of Europe4. It comprises a body of basic human rights ("Convention rights", see section 1 of Human Rights Act5 ). It may surprise the present Home Secretary to know that the United Kingdom was an original signatory to the treaty and ratified it in 1951.
Foreign criminals and the Human Rights Act
The UK Borders Act 2007 provides for the automatic deportation of foreign criminals, in the circumstances listed in section 32 (when they have committed a "serious offence", defined as a crime for which the sentence imposed is "a period of imprisonment of at least 12 months.") The exceptions to this provision are contained in section 33. A person seeking to resist deportation from the UK may succeed, in an appeal, if s/he can bring himself within an exception in section 33. Section 33 provides " (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights".
Particularly relevant, and controversial, in a deportation context, is the Convention right contained in article 8 of the ECHR. This provides that:
"(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, in order to succeed, in resisting removal/deportation, an appellant will have had to prove, to the standard of the balance of probabilities, that removal would be a disproportionate interference with their human rights. If that is established, it is then for the respondent to establish that the interference was justified. The leading case in this field is: Razgar v. Secretary of State for the Home Department  UKHL 27, where Lord Bingham described the object of the ECHR as,
"4.... the protection of fundamental human rights, not the conferment of individual advantages or benefits."
The House then went onto furnish the following guiding principles in respect of the application of article 8 to appeals against removal from the UK,
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference 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?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
The principle illustrates, inter alia that if article 8 is engaged, the Tribunal must carry out an assessment of proportionality whilst balancing two different interests: the rights to respect for family/private life, of an individual and the public interest of the state, here, in the context of deportation, protection of public order by deterrence.
Two recent cases, involving foreign criminals, have attracted substantial media attention6 and sparked fierce debate about the merits of the Human Rights Act.
Firstly, the case of Aso Ibrahim7, an Iraqi citizen who was an illegal entrant, who was sentenced to four months' imprisonment for a series of traffic offences, including failing to stop, after an accident which tragically led to the death of a 12 year old girl in 2003. The Secretary of State sought to remove him in 2008.
He successfully appealed against this decision on the basis that he had established a family life between himself and his partner, their two minor children and the partner's children by a previous relationship. It is of note that Mr. Ibrahim's offences, even although one involved the death of a child, were not such as to fall within the definition of "serious" within the meaning of the UK Borders Act 2007. The Upper Tribunal found, on appeal by the Secretary of State, that "the complaint that [the Designated Immigration Judge] failed to have proper regard to the extent of the Respondent's criminality is misconceived, because it is entirely clear from the determination that he had in mind that this was at the very heart of the case ..."8
Secondly, there was the case of Philip Omotunde, a Nigerian man, who had been granted indefinite leave to remain in the UK, and had been convicted of two counts of conspiracy to make fraudulent claims for tax credits and the transfer of criminal property (a two million pound conspiracy in which he personally accumulated over forty thousand pounds). He was sentenced to two and a half years' imprisonment.
Mr. Omotunde has a son born in the UK, and who, by the time the matter came to be heard at the Upper Tribunal9, was aged 6 years, and had become a British citizen. The Upper Tribunal weighed up all the relevant factors and accepted (as had the judge in the Crown Court) that Mr. Omotunde was his son's 'principal carer' and effectively made the arrangements for his schooling and welfare. Were Mr. Omotunde to be removed his son would either be deprived of his most substantial parental support, or alternatively be effectively required to relinquish the benefits of British citizenship. The Tribunal concluded that this rendered Mr. Omotunde's removal disproportionate. It can be inferred from the judgment that the decision would have been different if the crime had involved "... serious intentional violence or sexual misconduct; [or] an offence of importing or dealing in Class A drugs or people trafficking."10
The debate on this topic often depicts these decisions as if they were a windfall benefit to the undeserving who do not respect the rights of others and therefore deserve little consideration where their own rights are concerned. As these cases illustrate the crucial element in 'family life' cases are the rights of the other family members. Of particular importance is the impact that removal would have on the other family members – especially children and British nationals – who bear no responsibility for the situation. Nor is 'family life' a trump card that prevents removal in every case, it merely requires the Tribunal to balance the impact on those most closely affected by the decision against the interests of society as a whole.
I would argue that the Human Rights Act is not a charter for criminals but rather it is an essential piece of legislation enshrining basic human entitlements and freedoms, considered necessary for protecting by the Council of Europe, way back in 1949, and which still need protecting today. It provides an "effective remedy" under national law11 which allows the Convention rights to be directly secured in the UK. Courts in the UK undertake the thankless task of balancing competing interests of the individual and the state, and are fully conversant with an appellant's criminal history when deciding upon that person's claim to protection of their human rights. We are fortunate to live in a state where the separation of powers means that the role of deciding upon where the balance lies is entrusted to the judiciary and not to politicians nor journalists.
1.Employed barrister, Duncan Lewis Solicitors
2.BBC News 2 October 2011- accessed 20 January 2012. In the same article it is reported, "Prime Minister David Cameron said he agreed with Mrs May that the act should be scrapped and replaced with a British Bill of Rights."
3.Daily Mail, 12 January 2012, by James Slack.
4.It was founded in 1949, by Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom.
5.Section 1 provides, " The Convention Rights (1) In this Act "the Convention rights" means the rights and fundamental freedoms set out in— (a) Articles 2 to 12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention."
6.BBC News "Asylum seeker who ran over girl is allowed to stay" 16 December 2010. Also a facebook page was created "Get Aso Mohammed Ibrahim Out Of England!" . And in relation to Philip Omotunde The Telegraph 28 August 2011, "When the judges pervert the law"
7.See: IA/13542/2009. Further, an application for permission to appeal, by the Secretary of State, to the Court of Appeal was refused , notified March 2011.
8.See: IA/13542/2009, 10 December 2010, at paragraph 80.
9.See: Omotunde (best interests- Zambrano applied- Razgar) Nigeria  UKUT 00247 (IAC)
10.See: Omotunde, at 38.
11.See: Articles 1 and 13
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