When a Home Secretary starts accusing the judiciary of subverting democracy, we should get nervous, writes Kate Blagojevic. But when new legislation designed to bypass human rights law is announced, we need to actively resist.
- Kate Blagojevic is a campaigns and communications officer at Detention Action
Theresa May wrote in the Mail on Sunday last weekend that judges are ‘subverting’ British democracy and she has vowed to bring in a law to restrict offenders’ human rights, after claiming a minority of the judiciary had decided to ‘ignore Parliament’s wishes.’ It seems to have slipped the Home Secretary’s mind that one of the key tenets of a democratic society depends on judges upholding the rule of law and maintaining independence from the Executive.
What else could evoke such passion from the Home Secretary and the Daily Mail but the issue of foreign ex-offenders’ right to family life? Theresa May hoped she could order judges to follow the new immigration rules which were introduced last July. These rules are UK Border Agency’s policies and are not binding in law. They state that foreign ex-offenders will only be able to avoid deportation because of the right to family life in ‘rare and exceptional circumstances’.
‘Those rules were debated in full and passed unanimously by the House of Commons. So it is not acceptable that some immigration judges are denying the democratic and legal validity of them. I said at the time that if the courts did not heed the changes to the rules, I would introduce primary legislation to force them to do so. That is exactly what I now intend to do.’
The new immigration rules, and potentially a new immigration Bill must be brought in because, as May said, some judges have ‘got it into their heads that Article 8 … is an absolute, unqualified right.’
This is simply untrue.
People who have lived in the UK for 20 years with their parents, brothers and sisters, partners and children in the UK routinely lose their appeals and are deported. It is absolutely preposterous to suggest that the courts are always stopping deportations based on foreign ex-offenders’ right to family life. May is effectively pushing for all of them to be deported, whilst dishonestly portraying this as a balancing exercise and accusing judges of refusing to weigh up the factors.
But May has political cover from the media who peddle the myths that back up the lies. The Daily Telegraph campaign to ‘End the Human Rights Farce’, along with the Daily Mail and the Sun, publish a flood of stories about foreign rapists and murderers supposedly roaming free, living in penthouses in Chelsea, while their lawyers invent ever more bizarre definitions of ‘family life’, which are then upheld by bleeding-heart liberal judges. But there is a stumbling block to the plan. We are a signatory to the European Convention on Human Rights, which is likely to be directly contradicted by the new legislation. While the right to family life exists in international law, it exists in the UK. This will allow people to challenge their deportation in the European Court of Human Rights, giving more opportunities for the government to feign outrage at the interference of European courts.
With the exception of some brilliant lawyers who will be challenging cases daily in the European Court, everyone else is scared of defending the rights of foreign ex-offenders. The public are afraid because they are told to be scared of the foreign murderers who are taking their houses, women and jobs; the left-wing media won’t touch it because it’s going too far away from populist sentiment; judges fear that they will find themselves named and shamed in the Daily Telegraph for following the law (see HERE); and a big swathe of civil society will stay away because it’s not strategic to campaign for such unpopular causes. Essentially, the issue is too toxic to touch.
This is all a result of the divide between good and bad migrants that has been created by politicians and peddled by the tabloid media. It is deeply entrenched and is giving politicians cover to destroy fundamental human rights (including white migrants, as the Daily Mail was horrified to discover this week). But as people working with and on behalf of migrants we must ensure that we are not also perpetuating this divide. Promoting ‘perfect’ immigrants with perfect smiles and perfect back stories who make perfect posters does not help because most people are not perfect. Celebrating perfection makes it harder for everyone else to be accepted.
To applaud the Afghan student who gets to go to Eton as an amazing bloke but remain quiet over the forced deportation of Afghans on charter flights is hypocritical and I believe detrimental to the ultimate cause of ensuring migrants are treated equally. Many on those charter flights are amazing blokes, more are just like me – pretty ordinary people. If their children are British, their wives and husbands are British, their parents passed the British citizenship test with flying colours, do they not have a right to a family and a right to love and be loved?
There are few people actively fighting for their rights; those who are must come together now to convince NGOs, MPs and the public that the right to watch one’s child grow up is intrinsic to life itself, regardless of immigration status. The right to love is a right worth fighting for.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award