I thank the shadow Minister for his intervention, which was a very elegant way of sitting on the fence again.
The problem with which the new clause and amendments would deal results from the judicial expansion of the right to family life under article 8 of the European convention, which allows serious foreign criminals to evade deportation. It is, I think, common ground that the Strasbourg Court has steadily eroded United Kingdom deportation powers over the past few decades, but the
tightest fetters have come from the UK courts as a result— rightly or wrongly—of the Human Rights Act 1998.
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Let me move away from some of the technicalities for a while, and stress that the impact on ordinary people is stark. Let us not lose sight of whom we are talking about. My campaign began in my constituency when Bishal Gurung, a waiter in Esher, was killed in a very vicious attack, and his body was dumped in the River Thames. The perpetrator, Rocky Gurung—no relation—was convicted of manslaughter. He would have been sent back to Nepal, but he scuppered the deportation process by claiming his right to family life, although—remember that this was a homicide conviction—he was a single adult with no dependants. One can imagine how Bishal’s family felt about that.
This was not an isolated case. According to the reply to a freedom of information request that I submitted, the number of successful article 8 challenges to deportations by foreign criminals ranges from 200 to 400 a year, and the latest snapshot indicates that they constitute 89% of all successful human rights challenges to deportation orders. It is necessary to study the case law of the Immigration and Asylum Tribunal to appreciate the extent to which such cases warp the moral balance of British justice, endanger the public, and, for many people outside this place, make “human rights” dirty words. That is something that I deeply regret.
Some argue—and I want to address their argument head on—that the rights of the partners and children of convicted serious criminals must be given due weight, but the crucial point is that, in reality, the application of article 8 is being expanded to protect the rights of the criminals, not those of their families. Far from safeguarding the vulnerable, it can expose them to undue pressure, if not worse, from dangerous offenders. Let me give just two examples.
In one case, a man who had been jailed for raping his partner twice relied, successfully, on his relationship and daughter with the same woman to avoid deportation. It worries me that female victims may be coerced into being reunited with violent criminals who see them as a legal lifeline enabling them to stay in this country. In another case, a drug dealer who had been convicted of beating his girlfriend, and who had been jailed twice for other brutal, barbaric attacks, successfully cited his young daughter as a ground for evading deportation, although he had never paid maintenance and had scarcely seen his daughter until lawyers explained that that might help his case, and although the mother did not want her daughter to visit him in prison. Far from protecting children, article 8 risks making them pawns, subject to coercion or worse, in criminals’ desperate struggle to resist deportation and stay in Britain.
Let us be clear about what the law, rightly or wrongly, is achieving. In 2012 the Home Secretary rightly sought to address the problem, by changing the immigration rules, but that was only a rule change, and predictably, because of the way in which sections 3 and 4 of the Human Rights Act work, it was not upheld by the courts. I say “predictably” because I think that I have explained the position in the House before; I have certainly done so publicly, and with Ministers, following consultation.
In the Izuazu case, Mr Justice Blake pointedly stated:
“'Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding...and will be followed”.
So we have tried once and that did not work; and it was clear that it would not work because of the way in which the Human Rights Act operates. I am not necessarily criticising the Act; I am merely making a point of fact.
Part 2 of the Bill seeks to reintroduce what is effectively the same balancing exercise as that in the immigration rules in order to give the factors in favour of deportation statutory force. Of course that is a step in the right direction, but the UK courts are only required to “have regard” to the factors that are listed, and that leaves the courts wide discretion. Sections 3 and 4 of the Human Rights Act clearly require such discretion to be exercised in a way that complies with existing human rights case law in this country. In short, there is a real risk that nothing would change.
Let me deal briefly with the Home Secretary’s suggestion that my new clause would risk our being involved in a huge amount of litigation. There is always a risk of litigation when the law is changed, but because the new clause is much shorter, clearer and more succinct than the wide, sophisticated, complex balancing exercise in the Bill, it is much less likely to attract the kind of satellite litigation to which the Home Secretary alluded. I therefore think that the Bill as it stands would make the position worse than it would be if my new clause were accepted.