Deportation, human rights and the Immigration Rules

By Simon Hetherington, of Halsbury’s Law Exchange:

By Simon Hetherington

David Cameron

A couple of weeks ago, we commented on the ruling by the European Court of Human Rights against the deportation after prison of a rapist who, during his fight against deportation, had built up a family life capable of being protected under Article 8 of the Convention. At the same time we noted the interim advice on the reform of that Court, issued by the Commission on a Bill of Rights.

Roll forward a fortnight, with the party conference season reaching its climax, and as if by magic the government is flagging up its intention to do something about (1) making it easier for us to deport criminals and suspected terrorists, and (2) replacing the Human Rights Act with a Bill of Rights for Britain.

Such a move is pretty much guaranteed a warm welcome at a Conservative Party conference. Even so it has to be admitted that the government is stepping with care: the whole subject of human rights and related matters, if not exactly taboo, is a source of strain between the coalition partners.

The line chosen by the Prime Minister and the Home Secretary is therefore a deliberately fine one: deal with the deportation question by amending the Immigration Rules, rather than making it an Human Rights Act issue and colliding with the Liberal Democrats; and continue the approach to repealing the Human Rights Act by way of the independent commission.

This does not feel right. Whether or not the situation in relation to deportation is something that needs fixing, it is inextricably linked to the right to a family life within the terms of the Convention. It follows that if change is needed, such change impacts upon human rights. To effect it by way of Immigration Rules is questionable.

The Immigration Rules are not quite like the general body of delegated legislation. Although under the general scrutiny of Parliament, their status is imprecise. They are described and regarded variously as rules of law, rules of practice, unlike other delegated legislation, not forming a precise code, and by the House of Lords in 2009 in Odeola as mere statements of administrative policy. The Rules are changed by way of Statements of Changes, which, not being statutory instruments, certainly constitute a vehicle for the rapid implementation of evolving policy. The combined effect of these factors is that, subject to Parliamentary approval, there is little technical inhibition on the Secretary of State changing the Immigration Rules.

BUT: we come back to the overarching intended effect of the Human Rights Act, under which all legislation is meant to be drafted, interpreted and implemented in conformity with the Convention. While the Act is in force, and absent a British Bill of Rights (which for the time being remains a vague prospect), the Home Secretary should be writing her changes to the rules in accordance with it, not with a view to circumventing it altogether.

A couple of weeks ago, we commented on the ruling by the European Court of Human Rights against the deportation after prison of a rapist who, during his fight against deportation, had built up a family life capable of being protected under Article 8 of the Convention. At the same time we noted the interim advice on the reform of that Court, issued by the Commission on a Bill of Rights.

Roll forward a fortnight, with the party conference season reaching its climax, and as if by magic the government is flagging up its intention to do something about (1) making it easier for us to deport criminals and suspected terrorists, and (2) replacing the Human Rights Act with a Bill of Rights for Britain.

Such a move is pretty much guaranteed a warm welcome at a Conservative Party conference. Even so it has to be admitted that the government is stepping with care: the whole subject of human rights and related matters, if not exactly taboo, is a source of strain between the coalition partners.

The line chosen by the Prime Minister and the Home Secretary is therefore a deliberately fine one: deal with the deportation question by amending the Immigration Rules, rather than making it an Human Rights Act issue and colliding with the Liberal Democrats; and continue the approach to repealing the Human Rights Act by way of the independent commission.

This does not feel right. Whether or not the situation in relation to deportation is something that needs fixing, it is inextricably linked to the right to a family life within the terms of the Convention. It follows that if change is needed, such change impacts upon human rights. To effect it by way of Immigration Rules is questionable.

The Immigration Rules are not quite like the general body of delegated legislation. Although under the general scrutiny of Parliament, their status is imprecise. They are described and regarded variously as rules of law, rules of practice, unlike other delegated legislation, not forming a precise code, and by the House of Lords in 2009 in Odeola as mere statements of administrative policy. The Rules are changed by way of Statements of Changes, which, not being statutory instruments, certainly constitute a vehicle for the rapid implementation of evolving policy. The combined effect of these factors is that, subject to Parliamentary approval, there is little technical inhibition on the Secretary of State changing the Immigration Rules.

BUT: we come back to the overarching intended effect of the Human Rights Act, under which all legislation is meant to be drafted, interpreted and implemented in conformity with the Convention. While the Act is in force, and absent a British Bill of Rights (which for the time being remains a vague prospect), the Home Secretary should be writing her changes to the rules in accordance with it, not with a view to circumventing it altogether.

 

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