Theresa May's tough immigration rules defied by top judge
By David Barrett, Home Affairs Correspondent
Telegraph UK., Saturday, February 23, 2013
The country's most senior immigration judge has openly defied the Home Secretary by insisting that Parliament’s attempt to get tough on human rights abuses by foreign criminals is outweighed by the European Court.
Telegraph UK., Saturday, February 23, 2013
The country's most senior immigration judge has openly defied the Home Secretary by insisting that Parliament’s attempt to get tough on human rights abuses by foreign criminals is outweighed by the European Court.
In a key ruling, the head of the immigration courts said measures introduced
by Mrs May last summer to stop criminals claiming the “right to family life” were overridden by
judges’ previous decisions on such cases at the European Court of Human Rights
in Strasbourg.
Mr Justice Blake also said that “little
weight” should be given to Mrs May’s immigration rules in cases involving
criminals with children because they were overruled by international agreements
and a previous law passed by the Labour government.
As reported by The Telegraph last week,
Mrs May is due to introduce laws to strengthen existing measures over concerns
that judges were not taking them seriously. The measures are supported by The
Telegraph’s “End the Human Rights Farce” campaign.
The judge made his criticisms of Mrs May’s laws in a ruling which allowed a
criminal with 30 convictions to stay in Britain, even though the Home Office had
tried to deport him.
The case was written as a “reported determination”, meaning that other
immigration judges will have to follow its example when deciding other similar
appeals.
Olufisayo Ogundimu, a former drug dealer from south London, persuaded the court that he should not be removed to Nigeria, where he was born, because he had fathered a child here and has a baby on the way with another woman.
Mr Justice Blake said in his ruling on Ogundimu’s case that the immigration rules “did not affect the circumstance” when considering the right to family life, which is guaranteed by Article Eight of the Human Rights Act.
In such cases he said that the way to interpret Article Eight was not to consider Mrs May’s rules as most important, despite them being passed with cross-party support by Parliament.
Specifically regarding one of Mrs May’s rules which was designed to mean that having a child in Britain would not strengthen a criminal’s case against being deported, the judge said: “Little weight should be attached to this rule when consideration is being given to the assessment of proportionality under Article Eight.”
Instead, he said the United Nations Convention on the Rights of the Child and part of an immigration Act passed by Labour in 2009 took precedence.
Dominic Raab, the Tory MP who has campaigned for tougher rules, said: “This chronic judicial legislation has undermined public protection and usurped the democratic will of Parliament.
“We now have around 200 Article Eight cases a year, so it is vital and urgent that Parliament amends the law to mandate deportation and brush aside these spurious challenges to the rule of law.”
Ogundimu, 28, arrived in the UK 22 years ago. Tracked down by The Telegraph at his girlfriend’s flat in Chislehurst, south-east London, he said that he was pleased at the decision made by the Immigration and Asylum Upper Tribunal.
“It’s totally wrong to send people back like that because their family lives are here,” he said. “If people are a danger to the public and doing serious offences then send them back, but with me, yeah, I’ve got a criminal record but did not do anything serious.”
He came to Britain aged six in 1991 with his family. Ogundimu first appeared in front of the juvenile courts aged 14 for obtaining property by deception.
He has 30 offences on his criminal record, including an eight-month prison term for possession of cannabis with intent to supply, in 2008.
In 2010, the Home Secretary decided that Ogundimu should be sent to Nigeria to protect the public. Ogundimu fathered a son with a British woman in 2004 and the court heard that he looks after the boy occasionally.
It also heard that Ogundimu is now in a relationship with the mother’s cousin, who is expecting his baby, which was conceived after deportation proceedings began.
The Home Office argued that Ogundimu was not in a “genuine and subsisting relationship” with his son or his girlfriend and that his removal would not breach Article Eight.
He was arrested for possession of cannabis in October 2012, for which he received a caution, but now claims he is trying to lead a blameless life.
Ogundimu moved back in with the mother of his child in June 2010 after being in prison. The judge said that he admitted doing so to convince immigration authorities that he had a genuine family life. He left her for his new girlfriend a year later.
After hearing evidence from Ogundimu’s current partner, the court decided that they were in a genuine relationship and the criminal was also playing a beneficial role in the upbringing of a nine-year-old step-daughter.
Mr Justice Blake’s ruling also indicated that the new rules on applying Article Eight should not be imposed retrospectively, even though Mrs May set out that they should.
The immigration rules say a criminal should not be deported if he or she has a British child and “there is no other family member who is able to care for the child in the UK”.
The judge undermined this by saying: “We doubt whether it is in any child’s best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them.”
A Home Office spokesman said: “The Government has made clear its intention to bring forward primary legislation to prevent foreign nationals remaining in the UK through abuse of the Human Rights Act.”
Olufisayo Ogundimu, a former drug dealer from south London, persuaded the court that he should not be removed to Nigeria, where he was born, because he had fathered a child here and has a baby on the way with another woman.
Mr Justice Blake said in his ruling on Ogundimu’s case that the immigration rules “did not affect the circumstance” when considering the right to family life, which is guaranteed by Article Eight of the Human Rights Act.
In such cases he said that the way to interpret Article Eight was not to consider Mrs May’s rules as most important, despite them being passed with cross-party support by Parliament.
Specifically regarding one of Mrs May’s rules which was designed to mean that having a child in Britain would not strengthen a criminal’s case against being deported, the judge said: “Little weight should be attached to this rule when consideration is being given to the assessment of proportionality under Article Eight.”
Instead, he said the United Nations Convention on the Rights of the Child and part of an immigration Act passed by Labour in 2009 took precedence.
Dominic Raab, the Tory MP who has campaigned for tougher rules, said: “This chronic judicial legislation has undermined public protection and usurped the democratic will of Parliament.
“We now have around 200 Article Eight cases a year, so it is vital and urgent that Parliament amends the law to mandate deportation and brush aside these spurious challenges to the rule of law.”
Ogundimu, 28, arrived in the UK 22 years ago. Tracked down by The Telegraph at his girlfriend’s flat in Chislehurst, south-east London, he said that he was pleased at the decision made by the Immigration and Asylum Upper Tribunal.
“It’s totally wrong to send people back like that because their family lives are here,” he said. “If people are a danger to the public and doing serious offences then send them back, but with me, yeah, I’ve got a criminal record but did not do anything serious.”
He came to Britain aged six in 1991 with his family. Ogundimu first appeared in front of the juvenile courts aged 14 for obtaining property by deception.
He has 30 offences on his criminal record, including an eight-month prison term for possession of cannabis with intent to supply, in 2008.
In 2010, the Home Secretary decided that Ogundimu should be sent to Nigeria to protect the public. Ogundimu fathered a son with a British woman in 2004 and the court heard that he looks after the boy occasionally.
It also heard that Ogundimu is now in a relationship with the mother’s cousin, who is expecting his baby, which was conceived after deportation proceedings began.
The Home Office argued that Ogundimu was not in a “genuine and subsisting relationship” with his son or his girlfriend and that his removal would not breach Article Eight.
He was arrested for possession of cannabis in October 2012, for which he received a caution, but now claims he is trying to lead a blameless life.
Ogundimu moved back in with the mother of his child in June 2010 after being in prison. The judge said that he admitted doing so to convince immigration authorities that he had a genuine family life. He left her for his new girlfriend a year later.
After hearing evidence from Ogundimu’s current partner, the court decided that they were in a genuine relationship and the criminal was also playing a beneficial role in the upbringing of a nine-year-old step-daughter.
Mr Justice Blake’s ruling also indicated that the new rules on applying Article Eight should not be imposed retrospectively, even though Mrs May set out that they should.
The immigration rules say a criminal should not be deported if he or she has a British child and “there is no other family member who is able to care for the child in the UK”.
The judge undermined this by saying: “We doubt whether it is in any child’s best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them.”
A Home Office spokesman said: “The Government has made clear its intention to bring forward primary legislation to prevent foreign nationals remaining in the UK through abuse of the Human Rights Act.”
Comments