Thursday, October 6, 2011

Who Needs Human Rights? Part I - #CatFlap

Boy this CatGate / CatFlap thing has really gotten out of hand, hasn't it? In case you hadn't heard, a quick recap: Two days ago (4th October), the Home Secretary Theresa (I am not making this up) May gave a speech at the Conservative Party Conference in Manchester in which she criticised the Human Rights Act because of the difficulties that can arise from it when the Home Office wishes to deport someone. In this speech she made the following claim (emphasis mine):
"We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat."
The final example turns out to be one of the oft recycled myths propagated by opponents of the Human Rights Act, as Adam Wagner of The Guardian explains. Another person who realised that the Home Secretary's statement had no basis in fact was Justice Secretary Ken Clarke, who told the Nottingham Post that same day:
"It's not only the judges that all get furious when the home secretary makes a parody of a court judgment – our commission who are helping us form our view on this are not going to be entertained by laughable, child-like examples being given."
This has predictably erupted into a political row between the two ministers, one of whom has been forced to apologise. That one unfortunately is the one who, as it turns out, was correct. The deportation of this individual was not disallowed because of his relationship with a cat, but because of his strong cohabiting relationship with a British citizen, evidence of which was only partly made up of their joint ownership of a cat. The unnamed appellant in this immigration case was represented by solicitor Barry O'Leary of Wesley Gryk Solicitors LLK, who felt impelled to issue a press release today clarifying the case. In his release, O'Leary states that his client was "not a foreign national prisoner nor had he been charged with or convicted of any offence." It turns out that ultimately the appellant was granted exceptional leave to remain in the United Kingdom against the objections of the Home Office because that office failed to apply a policy that had been withdrawn but which was in effect for the period of time under consideration in the case. That policy is DP3/96 of the UK Border Agency, which as O'Leary describes it stated that "individuals who had been in a relationship with a settled person for in excess of two years, and no immigration enforcement action had been take against them, could be granted exceptional leave".

It is true that the first appeal to the Asylum and Immigration Tribunal of the Home Office consideration was on Article 8 grounds (right to family life) and heard much evidence of the strong family ties of the appellant with his partner and that this evidence included some mention of their jointly owned cat; however, that fact alone was not the reason for the successful appeal. In the original decision by Immigration Judge Mr J R Devittie, he states in paragraph 12 (emphasis mine, hat tip to for the PDF of the judgement):
12. I do not consider that it would be reasonable for the appellant’s partner to move to Bolivia to live with him. There are several considerations that justify this conclusion. The appellant’s counsel addressed these matters in his submissions. The most important perhaps is the condition of the appellant’s partner’s father. The evidence of this appellant’s partner and his siblings is that their father is in a condition that he is not expected to recover from. They stated that a family decision has been taken to give their father collective support as a family and that support that the appellant’s partner would give is an integral part of that effort. It would be distressing to the appellant’s partner’s [sic] if he were to have to leave the United Kingdom having regard to his father’s condition.

The original appeal was granted on Article 8 grounds (ECHR as reflected in the Human Rights Act); however, in paragraph 17 the judge goes on to "take into account that the appellant appears to meet the requirements of policy DP3/96. In particular, his relationship and cohabitation predates enforcement action by two years."

The original appeal was granted on Article 8 grounds, however the case was ultimately decided by Senior Immigration Judge Gleeson in a further appeal. In his three page decision (ht David Allen Green), Judge Gleeson found that Devittie had acted properly in allowing the appeal because contrary to the arguments presented by the Secretary of State, DP3/96 did in fact apply, a position that was accepted by the Home Office Presenting Officer. Gleeson's decision supersedes Devittie's and so the Human Rights Act, though initially cited, played no part in the granting of leave to the appellant.

Why is this case important? It is important because it is only one of a number of cases that have been misreported in the media and by politicians in recent years with the aim of disparaging the Human Rights Act, as I shall explore in Part II.

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