With the stated aim of government policy now being to ‘create a really hostile environment for illegal migrants’,1 greater focus on the rights of migrants is essential. People whom the government describes as ‘illegal migrants’ are, in their eyes, deserving of hostility by ‘abusing our hospitality’. Alongside this perception is the charge that human rights campaigners have in the past suppressed discussion of immigration.
In my experience, there has seldom been a time when immigration has not been high, if not the highest issue on the political agenda, a fact reflected by the introduction of immigration legislation on a regular basis since 1987.2 Much of this legislation was introduced as an attempt to appease media and public demands for ‘something to be done’ about the number of immigrants coming to the UK. Each piece of legislation was viewed by successive governments as inadequate, thus requiring ever more draconian legislation.
The focus of public outrage has alternated between asylum seekers (particularly when numbers of claimants increased under the Conservatives in the early 1990s [32,300 in 1992 compared to 19,500 in 20153]) and ‘foreign national criminals’ – particularly since 1,023 were released under the Labour government in 2006 without being deported.
Before the introduction of the Human Rights Act in 1998, individuals could make applications to remain in the UK based on ‘compassionate grounds’ or for ‘exceptional reasons’. Rights of appeal were restricted, and the challenge to a refusal was often focused on a claim for judicial review, arguing that the Secretary of State’s decision was so unreasonable that no decision-maker in their right mind would make such a decision. The assessment of what was fair or reasonable was often a common-sense notion of what is fair and just in a civilized society. When the Labour government introduced the Human Rights Act (alongside a right to apply for legal aid for asylum and human rights appeals), the formulation of Home Office decisions saw a change in tone and approach. Instead of refusals concluding that the basis of an application was ‘not sufficiently compassionate or exceptional’, this was extended to read ‘not sufficiently compassionate or exceptional as to result in a breach of human rights’. Within a few months, this was replaced to read ‘not a violation of human rights’. The test became more severe, requiring a breach of a person’s fundamental rights before the government would be forced not to refuse their claim to remain.
When foreign nationals began to win their human rights claims, a rhetoric soon developed that ‘blamed’ human rights for people remaining in the UK. It has been impossible to compare the numbers of people who won their claims to remain on ‘compassionate or exceptional grounds’ prior to the introduction of the Human Rights Act with the numbers of people who won their cases following the introduction of the Act. The government did not, and still does not, disclose statistics on the numbers of immigration cases settled before going to full hearing and the reasons for such settlement.
The Conservative government places blame on the Human Rights Act for the decisions made by judges to allow certain people whom it wishes to deport to remain in the UK. The number of people with criminal convictions who won their Article 8 (‘the right to a family or private life’) appeals was recorded in 2011 as being 99 out of 551 appeals.4 In attempting to cut access to people making claims for judicial review in immigration cases, and to cut legal aid for such claims, the Ministry of Justice’s December 2012 consultation document, ‘Judicial Review: Proposals for Reform’,5 focused attention on the numbers of people who take challenges for judicial review that are then rejected (overlooking the fact that these challenges are often made without the help of legal advice). At the same time, they failed to acknowledge that many judicial review claims are settled because the Home Office granted the claimant permission to remain prior to the court hearing.
The UK Borders Act 2007 provides for automatic deportation for any foreign national with a criminal conviction of twelve months or longer. It is easy for a politician to say crime is bad. It is easy to say that people who commit crimes deserve to be punished. But it has become even easier for politicians and the media to argue that foreigners who commit crimes are the worst of the worst, since they abuse our hospitality as ‘guests’ in the UK. They are taking advantage of the UK and deserve detention, deportation and effective permanent punishment through their exclusion from the UK and from Europe. As Theresa May said when arguing in support of the creation of a ‘hostile environment’ for migrants, ‘What we don’t want is a situation where people think they can come over here and overstay because they’re able to access everything they need’.6
But the reality is that for the many who face deportation from the UK and an exclusion that cannot be reversed for ten years or more, their family life will be permanently destroyed, their private life and their personal life within the only culture they may know will be permanently ended. Of course, because foreign ‘criminals’ seem to be labelled permanently as such, without having any other kind of identity, there is nothing but public support for the deportation of these criminal ‘guests’ and ‘overstayers’.
Under pressure not to be perceived as acting softly, and following the enactment of the Human Rights Act that allowed people to make claims to remain in the UK based on their private or family life, the previous Labour government responded by enacting two pieces of legislation that changed immigration policy. Section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 introduced new criminal offences of entering the UK without a passport, with a maximum sentence of twelve months in prison. In the first fifteen years of my career in immigration law, between 1989 and 2004, I met only one man who had been charged with the crime of illegal entry.7 He was convicted and given a £40 fine with a recommendation for deportation.
Following the introduction of the Act, however, people began to be prosecuted for false document crimes more consistently and the mass criminalization of immigrants began. The Migration Observatory reported that, ‘Since 1999, British immigration law has added 84 new types of immigration offences, compared with only 70 that were introduced between 1905 and 1998’, and ‘prosecutions and convictions of immigration offenders increased in both magistrates and crown courts between 2000 and 2005’.8 It is now normal for us to see sentences of twelve months or more for people convicted of immigration-related criminal offences.
When the government talks about criminals in immigration detention, it is not simply talking about murderers and rapists, but also about people who have been convicted of immigration offences. There was public outrage at the fact that 1,023 people who had completed criminal offences had been released between 1999 and 2006, without their deportation cases or immigration status being resolved. But of the 1,023 the media focused on, there were five people who went on to reoffend and commit more serious crimes.9 The impression given at the time was that hundreds, if not thousands of dangerous criminals had been let loose on the streets of the UK, that the government had lost control, and that consequent risk to public safety was extreme.
It is this demonization of foreign nationals who have committed criminal offences, many of which never existed before 2004, and the accompanying rhetoric that is of real concern. An analogous situation was the way asylum seekers were demonized in the 1990s. At that time, the government’s response to rising numbers of asylum seekers was to target perceived incentives to asylum, including abolishing income support for people applying for asylum after they had entered the UK. Subsequent legal challenges resulted in local authorities being obliged to support asylum seekers under the National Assistance Act 1948. Further, local authorities at ports such as Dover were obliged to house and support asylum seekers who applied on arrival. That resulted in increased media and public anger in those areas. There followed the Immigration and Asylum Act 1999, which introduced asylum support and was accompanied by arrangements to disperse asylum seekers around the country. Campaigners warned that the removal of income support and the dispersal of asylum seekers would leave people at risk as their identities as asylum seekers would be made evident since they were obliged to use food vouchers in supermarkets and were placed in housing made available specifically to them. The warnings were borne out. An asylum seeker was murdered in Glasgow in 200110 and asylum seekers were attacked in other areas around the country to which they were dispersed.
The policies relating to removing income support and reducing support to below the poverty level have been aimed at reducing numbers of asylum seekers, people whom the media identified as economic migrants simply seeking a better life and not fleeing persecution. The criminalization of migrants in the UK without proper documents, and the punishment of migrants via the use of immigration law is, however, used as justification for the erosion of the human rights of people who have committed such criminal offences.
When the Universal Declaration of Human Rights (now accepted by states and the majority of members of the United Nations as customary international law), the United Nations Covenant on Civil and Political Rights and the European Convention on Human Rights (ECHR) were introduced, they included concepts about fundamental rights that applied both to those innocent of criminal offences and to those found guilty of offences. While some rights are qualified, the general approach to such rights (including the right to a family life or a private life) has been to weigh issues in the balance and to allow courts of law to consider evidence before deciding what is proportionate and fair.
The Conservative government has been under tremendous public pressure to stop or cut immigration dramatically. It has come under pressure from right-wing newspapers such as the Daily Telegraph, which led its ‘End the Human Rights Farce’ campaign and acted to ensure that the human rights of people who have committed crimes would be extremely restricted, even where children’s welfare is at stake.11
It is perhaps no wonder therefore that there has been a subsequent acceptance of long-term detention for immigration detainees, and an acceptance of or a refusal to acknowledge the suffering caused to individuals, families and children by deportation. When it comes to anyone associated with a person who has been convicted of a criminal offence, whether they are a child or an adult, the public has had enough of being compassionate. This can be seen with the introduction of the Immigration Act 2014, which provides that foreign nationals who have been sentenced to over one year in prison can be deported unless to do so would be ‘unduly harsh’. Home Office policy at paragraph 2.5.2 of Chapter 13 of the Immigration Directorate Instructions defines ‘unduly’ as meaning ‘excessively’, and ‘harsh’ as meaning ‘cruel’.12 So while you can be ‘cruel’, you cannot be excessively cruel to the person facing deportation, their partner or their child.13
The political purpose of deporting people now has greater weight than the rights of those whose suffering is not ‘excessively cruel’. Rehabilitation is said to be relevant to whether or not a person presents a risk of harm or of reoffending, and therefore whether they should be detained or granted bail. But less so to deportation, where it might be a factor but where the political purpose of deporting people who have committed crimes remains paramount.14
This impression that foreign nationals are somehow ‘guests’ in the UK is at odds with Bail for Immigration Detainees (BID)’s experience. Our clients include a large number of people who were either born in the UK or brought here as babies or when very young. Some have ended up in care or their parents have, for various reasons, failed to apply for them to become British nationals. Such deportees sometimes believe they are British, and only find out they are not after they have been arrested or served with a deportation order.
But the government has done its best to ensure that individuals facing deportation are unable to put forward their case properly. Legal aid was withdrawn for deportation cases in 2012, and the power to deport people who have an Article 8 human rights claim before they can appeal in the UK was introduced under the 2014 Immigration Act.15 So without any legal qualifications, and sometimes with very little education, individuals have to articulate their arguments to remain, dealing with highly complex issues, from outside the UK. If they fight their deportation while in the UK, they risk being kept in detention. If they are deported, they will find it more difficult to argue their case and they risk never being allowed to return.
Of course, being hard on offenders is a popular thing to do. Politicians do not want to risk the wrath of the media by being perceived to be other than unbending when it comes to criminals. But the situation has reached the point where some politicians and campaigners were willing to compromise and support an amendment to the recently passed Immigration Act 2016 that sought to exclude persons convicted of criminal offences from proposed (but rejected) provisions entitling immigration detainees to an automatic bail hearing every twenty-eight days. Such acquiescence is the result of public pressure and the perception that the human rights of those found guilty of criminal offences should remain qualified even after they have completed their criminal sentences. It reflects a willingness to undermine the fundamental right of all individuals to legal protection from arbitrary detention, and it is a development that we must fight against.
Alan Travis, ‘Immigration Bill: Theresa May Defends Plans to Create “Hostile Environment”‘, The Guardian (10 October 2013), http://bit.ly/1kpKqJa.
For example: The Carrier’s Liability Act 1987, Immigration Act 1988, Asylum and Immigration Appeals Act 1993, Asylum and Immigration Act 1996, Special Immigration Appeals Commission Act 1997, Crime (Sentences) Act 1997, Human Rights Act 1998, Immigration and Asylum Act 1999, British Overseas Territories Act 1999, Nationality, Immigration and Asylum Act 2002, Asylum and Immigration Act 2004, Immigration, Asylum and Nationality Act 2006, UK Borders Act 2007, Tribunal, Courts and Enforcement Act 2007, Criminal Justice and Immigration Act 2008, Borders, Citizenship and Immigration Act 2009, Immigration Act 2014, Immigration Act 2016.
George Arnett and Carlo Zapponi, ‘Syria Crisis Pushes EU Asylum Claims Past 1992 Record’, The Guardian (15 October 2015), http://bit.ly/1G7nrzO.
Home Office, UK Visas and Immigration and Immigration Enforcement, ‘Immigration and Asylum Appeals Allowed under Articles 3 and 8 of the European Convention on Human Rights’, 13 July 2011, http://bit.ly/2dgYqJ6.
See Ministry of Justice, ‘Judicial Review: Proposals for Reform’, December 2012, http://bit.ly/1YhBBov.
Alan Travis, ‘Immigration Bill Will Require Identity Checks for All, Home Secretary Is Warned’, The Guardian (10 October 2013), http://bit.ly/1POt4r7.
See section 24 of the Immigration Act 1971, ‘Illegal Entry and Similar Offences’.
See Migration Observatory, ‘Immigration Offences: Trends in Legislation and Criminal and Civil Enforcement’, 9 July 2013, http://bit.ly/2rciErN.
For an example, see the Daily Telegraph’s somewhat triumphant article, ‘Theresa May: I’ll Bring in New Law to End Human Rights Farce’, 16 February 2013, http://bit.ly/1sylR44.
Article 8 ECHR cases. See ‘Chapter 13: Criminality Guidance in Article 8 ECHR Cases’, Version 5.0, Immigration Directorate Instructions, UK Visas and Immigration, last updated 20 October 2014, http://bit.ly/1V99xUB.
The Upper Tribunal in MAB (para 399; ‘unduly harsh’)  United Kingdom Upper Tribunal 435 (Immigration and Asylum Chamber), held that ‘the consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are “inordinately” or excessively harsh taking into account all the circumstances of the individual’.
See, for example, the case of Bakary Danso  England and Wales Court of Appeal Civ 596, where the Court of Appeal stated at paragraph 20: ‘… I should not wish to diminish the importance of rehabilitation … It must be borne in mind, however, that the protection of the public from harm by way of future offending is only one of the factors that makes it conducive to the public good to deport criminals. Other factors include the need to mark the public’s revulsion at the offender’s conduct and the need to deter others from acting in a similar way. Fortunately, rehabilitation of the kind exhibited by the appellant in this case is not uncommon and cannot in my view contribute greatly to the existence of the very compelling circumstances required to outweigh the public interest in deportation’.
See Part 2 of the Immigration Action Act 2014, including section 15, which describes the grounds upon which an appeal can be based (essential on asylum or human rights grounds) and section 17(3), which introduces section 94B in the Nationality, Immigration and Asylum Act 2002, allowing the Secretary of State to issue a certificate obliging a deportee who has made an Article 8 human rights claim to leave the UK before or while an appeal is pending (as long as this will not result in a violation of Article 3 of the ECHR).