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Hard cases, incompetent politicians & bad law

In July last year, the Government published a consultation document on family migration, aimed in Home Office and UKBA parlance, at reducing the ‘burden on the taxpayer, promote integration and tackle abuse’.

Yesterday Theresa May, the Home Secretary, said in a commons statement that, following the consultation, there should now be three principles on family migration – genuine relationship, that families pay their way, and that families integrate with British society.

Immigration rules are to be laid ‘shortly’, to come into effect on July 9th but in respect of foreign national prisoners it has been signalled that deportation is now to be given priority over the ‘right to family life’ enshrined in article 8 in order ‘to protect the public from foreign criminals who try to hide behind family life as a reason to stay here’.

The Home Office said 185 foreign prisoners had successfully appealed deportation last year by citing article 8. Less trumpeted was the fact that this was a success rate of less than 8% in respect of the numbers of foreign national prisoners who had sought to appeal their deportation.

Key changes proposed include;

  • Only in exceptional circumstances will the public interest in the deportation of foreign criminals sentenced to at least four years be outweighed by other factors.
  • Those with lesser sentences will normally be deported, unless they have a child and it is not reasonable for that child to leave the UK with the parent, or the child cannot be cared for by other family members in the UK, or they have been in the UK lawfully for at least 15 years and there are insurmountable obstacles to continuing family life with their partner overseas.

The Home Secretary, who perhaps does not read a great deal of caselaw, wishes to produce guidance, approved by parliament, telling judges what to make of article 8(2) which sets out in broad terms when the right to family life can be interfered with. This guidance will reiterate to presumably the illiterate part of the Tory backbench that the right to family life is not absolute but qualified – which even a first year law undergraduate let alone a Judge already knows. If they fail to take account of her guidance (as they will be bound to do as a matter of law if it departs from the jurisprudence of the Strasbourg court) then she wishes to make the interpretation of Article 8 the subject of primary legislation.

Such legislation would of course be vulnerable to a declaration of incompatibility, especially where Parliament is seeking to predetermine the results of individual cases. Insofar as she succeeds in her aim of binding the UK courts she will simply move the forum for challenge to Strasbourg and thus delay cases.  This is therefore about style not substance: talking tough and blaming the judiciary if persons remain in the UK.

A legal cliché, but no less true for it, is that ‘hard cases make bad law and politicians make bad judges’. It is equally true that headline-chasing and incompetent politicians also make bad law because – and contrary to what its various critics tend to argue – human rights legislation and the case law around article 8 do not suggest judges and courts being indignant about the idea of rules and polices; rather what they object to is often the unyielding and over-prescriptive nature of the application of the policy in question.

Judges as a rule – and the article 8 case law is a prime example of this –  like inflexible policies which permit no exceptions for individual cases even less than they like striking down executive policies. To escape the dilemma of having to choose between expediency and utility on the one hand (suggesting the inflexible application of general policies) and human rights on the other (suggesting that every case be treated as a single matter to be viewed entirely on its own terms) judges have tended to accept that – in principle – a policy is necessary, whilst at the same time stressing the need for flexibility on the part of the decision maker.  This is part of the balancing exercise required by article 8(2) and the notion of due process. It is also very different from what is often a deliberate and politically motivated misrepresentation of what rights people actually enjoy.

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