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What does the Human Rights Act consultation say about migrants’ rights?


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The government has published its proposals for changing the Human Rights Act 1998. Not all the consultation questions will be of professional interest to immigration lawyers — for instance, there are sections on free speech and trial by jury — but some are specifically aimed at making it easier to deport people in spite of their Article 8 right to respect for private and family life.

The consultation document is shot through with complaints about the human rights of foreign criminals, notwithstanding the restrictions brought in by the Immigration Act 2014. The “discretion left to the courts” has been “used to dilute the intended impact” of that clampdown, the government complains. It adds that “a number of cases since 2014 help to demonstrate this”, but cites only two. 

The first is AD (Turkey), which concerned a man with a conviction for grievous bodily harm. The case study does not mention that he had been married to a British citizen for 31 years and that the judge described it as a “rare and exceptional” case.

The second is OO (Nigeria), which concerned a man with serious drug and assault convictions. The case study does not mention that OO was born in the UK and hadn’t so much as visited Nigeria, the country of proposed deportation, since he was nine. Even then, it seems to have been a finely balanced decision and the judgment concludes with a warning that any further offending would likely see him deported.

There are also some statistics on appeals which are not amenable to a hot-take analysis, partly because the Home Office does not routinely publish proper stats on deportation appeals specifically, but it is worth noting that immigration appeals in general are way down, even pre-pandemic.

The consultation questions specific to immigration are:

Question 24: How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options, below, do you believe would be the best way to achieve this objective? Please provide reasons.

Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment.

Option 2: Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights.

Option 3: Provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.

Question 25: While respecting our international obligations, how could we more effectively address, at both the domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration?

A consolidated list of all 29 consultation questions appears at page 107 of the document. The deadline for responses is 8 March 2022.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.