There has been a slew of headlines in recent months stating that foreign criminals have been allowed to stay in the UK following successful human rights challenges to deportations in court, on apparently spurious grounds.
The Daily Telegraph, which is campaigning on the issue, has reported many such cases: "Albanian criminal's deportation halted over son's distaste for chicken nuggets"; "Iranian criminal spared deportation so he can cut his son's hair"; "Psychotic Nigerian robber can stay in UK because he believes he is 'possessed'". These cases have sparked widespread criticism, particularly from the Right, and fresh discussions about the role played by human rights law and the European Convention on Human Rights (ECHR)
What do the critics say?
The most forceful would argue that such cases show that the ECHR, and the Strasbourg Court that interprets it, are not fit for purpose: that they were not designed to cope with mass migration, that they are exploited by criminals and naive human rights lawyers, and that they simply make it too hard and costly to control illegal migration.
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Reform UK's Nigel Farage says his first act as prime minister would be to leave the ECHR. The Tory leader Kemi Badenoch says that if the Convention continues to stop UK governments acting in the country's national interest, the UK would "probably have to leave". Robert Jenrick, the shadow justice secretary, has called the ECHR a "criminals' charter".
What does the law actually say?
The Home Office is required to deport any foreign national sentenced to 12 months or more. However, the criminal can resist deportation under the ECHR, most commonly on two grounds under Article 8, the right to respect for private and family life. (These are now written into British immigration law.)
The first is that there would be "very significant obstacles to integration" if they were sent to the country in question. The obstacles must be more than the usual challenges of moving to a new country. The second ground is that the effect of deportation on a criminal's child or partner would be "unduly harsh", meaning "a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent". If the person has been sentenced to four or more years, the bar is raised higher, and there must be "very compelling circumstances" to prevent them being deported.
The tests are fairly stringent. Anyone making a claim on the first ground must have been lawfully resident in the UK for most of their life, and be "socially and culturally integrated" (so these are not, for instance, recent boat migrants).
What’s going wrong?
Some argue that the issue is less with human rights law than a "politicised judiciary" failing to interpret those laws correctly, particularly in the lower of the two "tiers" of British immigration tribunals. Judges are required to balance the criminals' rights against the public interest, in controlling migration and removing dangerous criminals. One barrister told The Times that judges were "overly sympathetic to the individual in front of them, and not enough to the public".
Some cases would certainly support this theory. In February, a Pakistani man convicted of child sex offences was allowed to stay in the UK, on the grounds that his deportation would be "unduly harsh" on his daughters – though his access to them was restricted by law. On appeal, a tribunal judge set aside the ruling, calling it "contrary to the evidence, plainly wrong and rationally insupportable"; the case was sent back and is ongoing. In the "chicken nugget" case, an upper tribunal judge also set the judgment aside and sent it back, saying that the nugget argument did not "anywhere near" meet the legal test.
So does the system correct itself?
Its defenders say that, by and large, it does; a few anecdotes about chicken nuggets are being blown up out of proportion. The number of people making human rights-based appeals is actually relatively small, and most appeals fail. From 2008 to 2021, 21,521 appeals were made; and only 2,392 succeeded. (However, the government reports that the number of Article 8 cases has "substantially increased" recently, and there is a big backlog in immigration appeals, standing at 41,987 in December.)
Human rights lawyers argue that the ECHR is being unfairly blamed for wider immigration issues: the very high rate of legal net migration; the arrival of larger numbers of asylum seekers on small boats; the many difficulties involved in deporting illegal migrants.
Do other nations complain about the ECHR?
Yes. Nine signatories of the Convention have written a letter accusing the Strasbourg Court of tying national lawmakers' hands, with regard to migration issues in particular. The letter said that the court was making it difficult to "make political decisions in our own democracies", and that the ECHR ought to be interpreted in ways that better reflect the "challenges" of modern irregular migration.
What is the government doing?
Home Secretary Yvette Cooper has announced a review into Article 8 immigration cases. The recent white paper on migration stated that "an overly high proportion" of such cases are now decided on the basis that they are "exceptional" to the rules, rather than in accordance with them; the government will clarify the law and make it easier to deport foreign criminals.
Some £5 million will be spent on specialist prison staff in England and Wales to speed up such deportations. In April, the government also stated that anyone placed on the sex offenders register would be unable to claim asylum. However, the PM's spokesman stated that "Britain will unequivocally remain a member of the ECHR".
