Theresa May criticises judges for 'ignoring' deportation law

Theresa May Despite criticising some, Theresa May says she is a great admirer of most of the judges in Britain

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Home Secretary Theresa May has accused judges of making the UK more dangerous by ignoring rules aimed at deporting more foreign criminals.

Last year, MPs approved new guidance for judges making clear a criminal's right to a family life had limits.

But in the Mail on Sunday, Mrs May said she now wanted to introduce a law to require most foreigners guilty of serious crimes to be deported.

Some judges were choosing to "ignore parliament's wishes," she argued.

Last year's guidance was designed to put an end to circumstances in which the right to a family life as set out in Article 8 of the European Convention on Human Rights was used to justify granting foreign criminals the right to remain in the UK, rather than being deported.

Last year, Conservative MP Charlie Elphicke obtained Home Office figures suggesting that 177 foreign criminals avoided deportation in the year 2011 to 2012 after convincing judges of their right to a family life in Britain.

At the time, Labour questioned whether the guidance would be sufficient to override the precedent set by earlier cases and said it would support primary legislation.

Under Article 8:

  • Everyone has the right to respect for their private and family life, home and correspondence
  • Family life means the real existence of close personal ties
  • Family life must be respected as a single entity - taking into account the rights of claimants and those with whom they claim to enjoy it
  • Claimants and their families are not guaranteed the right to stay in the UK if they are able to live together elsewhere
  • Private life refers to an individual's personal identity, ability to form relationships with others and physical and moral integrity
  • Private life includes studies, employment, friendships and sexuality
  • A claimant cannot be deported if their right to respect for private life would be completely nullified or denied in their destination country

* Source: Home Office

The home secretary, in her newspaper article, blamed judges who had "got it into their heads that the ECHR Article Eight 'right to family life' could not be curbed".

"Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules, as evidence that Parliament actually wants to see those new rules implemented," she wrote.

She noted that one judge had justified his decision on the basis that the new guidance had been subject only to "a weak form of Parliamentary scrutiny".

Mrs May went on: "It is essential to democracy that the elected representatives of the people make the laws that govern this country - and not the judges.

"Yet some judges seem to believe that they can ignore Parliament's wishes if they think that the procedures for parliamentary scrutiny have been 'weak'. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion."

Foreign criminals allowed to stay

  • Aso Mohammed Ibrahim, an Iraqi Kurd, killed a 12-year-old girl in a hit-and-run in Lancashire. He was jailed for four months in 2003 and allowed to remain in the UK with his family on his release. Ibrahim's lawyers argued human rights laws permitted him to stay in the UK, because of his family.
  • Italian citizen Learco Chindamo was jailed for life after killing headteacher Philip Lawrence in 1995. Chindamo's lawyers successfully argued deporting him would be illegal as he was from a European Union country and had already lived in the UK for 10 years at the time of the attack.
  • A Jamaican drug dealer was allowed to stay in the UK with his family after his release. The High Court blocked the Home Office's decision to deport him saying it had not sufficiently looked at the effect his absence would have on his nine-year-old son who suffers from attention deficit hyperactive disorder.

The home secretary said she was determined to bring forward a new law making it clear the deportation should be the norm in everything but "extraordinary circumstances".

However, she warned the delay in getting that onto the statute book would inevitably mean "more victims of violent crimes committed by foreigners in this country".

The home secretary stressed there was not a dispute about respect for human rights, which she said she agreed was "an essential part of any decent legal system".

"It is about how to balance rights against each other: in particular, the individual's right to family life, the right of the individual to be free from violent crime, and the right of society to protect itself against foreign criminals," she said.

Despite her criticisms of what she said was a minority among the judiciary, Mrs May insisted that she was "a great admirer of most of the judges in Britain".

And she accepted the need for the power of government ministers to be "reviewed and restrained" by the judiciary.

However, she stressed that UK laws are "made by the elected representatives of the people in Parliament", adding: "Our democracy is subverted when judges decide to take on that role for themselves".

Lawyer Baroness Kennedy says picking fights with judges is "bad for the rule of law"

Human rights lawyer and Labour peer Baroness Kennedy described Mrs May's position as a "populist bit of politicking".

On the BBC's Andrew Marr Show, she said the number of cases that would be affected by the new law was "minuscule".

"This depresses me," Baroness Kennedy said. "It's a common story with home secretaries that this is what they end up doing.

"We've got to remember that this is about the independence of the judiciary and why that's so important.

"It's absolutely imperative that judges are not under the thumb of home secretaries, and it can be frustrating for home secretaries of course, but it is not good to see this kind of vocal attack on the judges, and I am sad that she has done this."

It was the job of the criminal courts to decide how best to protect the community from offenders by imposing custodial sentences, and subsequent judgements on whether to deport a foreign criminal on their release from prison could be "very difficult, subtle decisions", she said.

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