Our Response to the Human Rights Act Consultation

Late last year, the Justice Secretary, Dominic Raab, announced a review of the Human Rights Act (1998), that threatens to literally rewrite the rules in order to strengthen the power of the state against the rights of the individual.

The Justice Secretary’s plans are particularly alarming for people seeking asylum, those of dual nationality and those who have settled in the UK, who have already suffered repeated attacks on their rights by this Government and who would undoubtedly be robbed of even more freedoms and protections if the changes are made.

Ahead of its review, Raab’s Ministry of Justice has run a heavily biased consultation, with questions phrased to prop up the Government’s ideological attack on our human rights. Here, you can find our response.

1. The Human Rights Act is a modern Bill of Rights which was passed with cross party support in 1998, following decades of work by Conservative, Labour and Liberal Democrat politicians to incorporate the European Convention on Human Rights in to UK law. By turn the European Convention on Human Rights was drafted in large part by British lawyers translating Sir Winston Churchill’s vision of the “enthronement of human rights” into law in the aftermath of the horrors of World War II. The intention was to secure adherence to fundamental rights and the Rule of Law across the Council of Europe. As Russia launches an aggressive war in Europe, it has never been more important for the UK to stand wholeheartedly behind the Convention and its direct incorporation into UK law.
2. Since it was passed, the Act has fared extraordinarily well, responding to various attacks on the Rule of Law and fundamental rights by successive Governments while continuing to preserve our constitutional order and ensuring that Parliament remains sovereign. However, almost since its inception there has been a small group of Conservative politicians, led by the now Justice Secretary Dominic Raab, who have been ideologically opposed to the Act and to the application of certain rights to certain groups – in particular foreign nationals – and who have campaigned for its repeal.
3. In addition to a small group of politicians who are vocally opposed to the Act, several newspapers have openly campaigned against it, with the former editor of the Daily Mail, Paul Dacre, openly admitting that this campaign is a self-interested one, motivated by the way in which the Act can restrict tabloid “kiss and tell” profits as a result of Article 8 Private and Family Life protections.
4. The result is this consultation paper. In a healthy democracy, it is to be expected that a constitutional Bill of Rights like the Human Rights Act will challenge the Government from time to time and that judicial decisions will irritate and sometimes frustrate. That is a necessary side-effect of accountability. However, Governments in liberal democracies are usually mature enough to understand this and to allow the judiciary and their Bill of Rights instruments to operate and to hold them to account.
5. Boris Johnson’s Government is, however, unable to accept this. So it is proposing to rip up the Human Rights Act and to replace it with something significantly weaker, which will undermine the ability of ordinary people to uphold their rights and to ensure Government accountability. This is the first time in history that a modern democratic Government is proposing to repeal a fundamental human rights statute and replace it with something substantively much weaker. This is a democratic norm-breaking consultation.

6. The consultation paper at times attempts to dress up the proposals as “reinforcing” rights, giving the impression that there may be a strengthening of rights or some net gains for rights protection. But the proposals overwhelmingly propose to decrease substantially the scope of human rights protection available to people within the UK’s jurisdiction.
7. In our response we will focus on the commentary provided regarding Article 8 of the ECHR, as incorporated by the HRA and the proposals to restrict the application of Article 8 in deportation cases. The paper asks whether a new Bill of Rights should be stripped of the ability to prevent deportation for a certain “category of individual”; limit the operate of deportation restrictions to a “legislative scheme expressly designed to balance the strong public interest in deportation” or provide that a deportation decision cannot be overturned unless it is “obviously flawed”. All of these proposals are dangerous, discriminatory and wrong-headed.
8. The consultation paper makes sweeping and unsubstantiated claims about the operation of Article 8. As Bail for Immigration Detainees (BiD) has observed in a letter from their Legal Director, Pierre Makhlouf, to the Justice Secretary on 3rd March, (and which we co-signed) that the Article 8/deportation case studies used are highly selective and misleading. By example OO (Nigeria) fails to make reference to the fact that OO was born in the UK and had known only life in the UK. Similarly, the commentary on the case of AD (Turkey) fails to mention that “the appellant’s “actions in committing the index offence were very much out of character and he has expressed remorse; that he was a model prisoner and was on unconditional bail; that he has lived in the UK for over 30 years and is socially and culturally integrated in the UK; that he has no ties with Turkey and would have to start anew if sent there; that he has a genuine and subsisting relationship with his wife” of 31 years, a British Citizen with no ties to Turkey who suffered anxiety and depression and had undergone repeated surgeries for cancer, for whom relocation to Turkey would be unduly harsh. Nor is there any reference to the facts found by the Tribunals “that the claimant’s adult son, R, is unwell with Crohn’s disease and is reliant on his father for assistance” and accepted expert evidence showing that the appellant (a permanent resident since 1994) posed a low risk of reoffending and ran a company employing others”.

    

9. That these two cases are the most egregious examples that civil servants could find of Article 8’s supposed generosity to those appealing deportation, says much about how the Article 8/deportation system is already heavily weighted against appellants.
10. The consultation document goes on to assert that “the government believes that the confidence of the wider public in our human rights framework is eroded when foreign criminals and others who present a serious threat to our society – including those linked with terrorist activity – can evade deportation, because their human rights are given greater weight than the safety and security of the public”. This is misleading and disingenuous on a number of levels. First, the Conservative party leadership has spent the past 15 years making this false claim to the public and thereby giving a misleading impression that the Human Rights Act undermines safety and /or common sense. Theresa May’s infamous “cat-gate” party conference speech was the high water mark; so misleading that it necessitated a robust corrective from the judiciary. But consistently at every Conservative party conference since 2006, this claim has been a political centrepiece, either absent of evidence or by making use of highly selective and misleading evidence, as per the consultation case studies and the subject of the BiD letter.
11. Secondly, Article 8 deportation cases are principally presented to the public by the media outlets who acknowledge a vested financial interest in campaigning against Article 8 and who, like Government ministers, present partial and misleading facts about particular cases. If public confidence in the system is the primary concern then Government should focus on explaining how the system really works rather than scaremongering and stoking resentment and fear.
12. Third, when the public is asked for its view on our current deportation laws, there is significant public support for the “automatic deportation” system to be abandoned and for a much more nuanced approach to deportation which allows those born here or brought here as children, or those with children in the UK or who have lived here most of their lives, or at least for decades, to be allowed to remain.
13. Detention Action commissioned ComRes to conduct polling on this issue in July 2020.[1] ComRes asked the public when, if ever, the Home Office should seek the removal of residents that have received a custodial sentence of 12 months or more. For those who were born in the UK, only 10% of the public agreed that they should always be sought for deportation, with 72% believing that this group should either never, rarely or only sometimes be sought for deportation. For those brought to the UK as children, 11% believed that they should always be sought for deportation, while 67% believed that this should never happen or only happen rarely or sometimes. For those who came to the UK as adults and have a genuine and subsisting relationship with a British child, only 13% believed they should always be sought for deportation with 63% believing that they should only sometimes, rarely or never be sought for deportation. To claim therefore that there is evidence of public dissatisfaction with Article 8 in the deportation context is a fallacy. If anything this polling demonstrates that the public would prefer a much more person-centred and family-oriented approached that abolishes automatic deportation and returns to exceptionality and discretion-based decision-making.
14. The consultation document asserts that the Strasbourg and UK courts have incrementally expanded the restrictions on deporting serious “foreign offenders” under Article 8. There is no evidence to substantiate this claim. Instead the consultation paper references the fact that between 2008 – 2021, 21,521 appeals were lodged against deportation with 2,392 appeals being allowed on human rights grounds. The consultation paper further notes that between April 2016 and November 2021 of 1,011 appeals against deportation allowed on human rights grounds, 70% were allowed solely on Article 8 grounds.
15. There has been no “expansion of restrictions” on Article 8 deportations. In fact the reverse is true. Yet, strikingly, no mention is made of the fact that the UK Borders Act 2007 hugely expanded the use of deportation orders and meant that for the first time in the UK law, any non-national with a criminal custodial sentence of 12 months or more is automatically considered and pursued for deportation. Indeed there is a duty on the Home Secretary to do so unless a narrow restriction applies. It is this legislative provision that has increased the use of Article 8 in the deportation context. Before this legislation was enacted, Executive-issued deportation orders were wholly discretionary and will have been the exception rather than the norm. It is misleading and dishonest to discuss the use of Article 8 in deportation cases without reference to this sweeping legislative change.
16. When considering the broader context it’s also vital to note that citizenship and immigration law has continuously eroded the rights of people born or resident in the UK with migration in their heritage. For example, following the 1981 Nationality Act, birthright citizenship was abolished. As these vital safeguards have been eroded, reliance on Article 8, as a last line of defence against injustice in the immigration sphere, has increased. In 2018, the former Home Secretary Savid Javid commissioned Stephen Shaw to undertake a review of immigration detention. One of Shaw’s key recommendations was that those who were born in the UK or who arrived here as young children should no longer be subjected to the 2007 automatic deportation regime. This recommendation has been entirely ignored by the Government, but serves as a telling evidence of our how deportation laws have become inhumanely skewed.
17. The statistics presented concerning deportation appeals are again partial and selective. The total number of deportation appeals is presented without the corresponding context of the total number of deportation orders issued between 2008 – 2021. We know from publicly available statistics that tens of thousands of deportation orders were made in this period. For example, between 2009 – 2021, 65, 253 deportations were executed[2]. This means that deportations were appealed in less than a third of all cases, at least.
18. That 21,521 people appealed their deportation is no bad thing for a country that is supposed to believe in access to justice and the Rule of Law. In fact, and as we examined further below, more worrying is that more appeals were not made, given how draconian automatic deportation is in its impact, sweeping up as it does people who have lived in the UK for decades, and even those born in the UK.
19. It should be entirely acceptable to Government that those affected by deportation have the opportunity to challenge such a decision. Deportation is after all one of the most far-reaching decisions that a Government can make concerning a resident, presenting one of the greatest potential infringements on human rights. It leads to semi-permanent banishment and, as widely documented, frequently results in people being sent to countries that they have no link to or any recollection of, leaving people vulnerable to exploitation, destitution and death, not to mention being permanently separated from their family and support network.
20. Against this context it is surprising that appeals were lodged only in a fraction of cases. But we know from our work that this may be largely due to the removal of legal aid in most immigration cases. The LASPO reforms of 2013 removed legal aid for Article 8 cases and badly undermined access to justice. People served with deportation orders will frequently be released into the community, following the end of a custodial sentence and be prohibited from working as a condition of their immigration bail. This means that they are unable to earn money to support their families and to pay legal fees for a deportation appeal which may commonly cost around £10, 000 for solicitor fees and expert reports. The Exceptional Case Funding (ECF) scheme for Article 8 claims is available for those who meet three separate tests – a financial, merits and human rights test. The financial test requires that individuals earn less than £733 per month and have less than £3000 in savings, but the income of a spouse or partner will be taken into account. In our experience this removes a significant proportion of people from eligibility for legal aid in circumstances where there is no money available for a deport appeal once basic housing and food costs for the family have been met.
21. Perhaps most shocking about the consultation document’s treatment of the Article 8/deportation issue is the total absence of any reference to the rights of family members, especially innocent children, in the policy discussion. Family members of those facing deportation are also Article 8 rights holders, whose rights would be hugely affected by the proposals in the document. The consultation makes fleeting reference to the legislation passed by Theresa May in 2014, which tightly restricts the application of Article 8 in deportation cases, but fails to explain how the law now works. To explain, it is now the case that even where a court determines that the impact of a parent’s deportation on a British child would be “harsh” or “cruel” this is insufficient justification to prevent deportation. Instead a threshold of “unduly” harsh or “excessively” cruel impact must be reached. An even higher threshold of harm is required in cases where a parent has received a custodial sentence of four years or more.
22. Disturbingly, the Government does not record the number of children resident in the UK that have been deprived of a parent as a result of deportation. Based on our casework and given that 65, 253 people have been deported since 2009, we believe that it is reasonable to suggest that tens of thousands of children have been deprived of a parent in this way, with all of the corresponding impacts on child welfare and life chances. Given this, it is curious that the consultation paper makes no reference to family separation and the public policy implications of this. Doesn’t this Government consider it a public policy goal to keep children supported by both loving parents and to allow families to remain together wherever possible? Why is it assumed that the public interest will always be served best by a deportation? What about the psychological and emotional impact on the children and partners who are left behind? Surely a responsible Government would factor in the human cost as well as the knock-on impact this has on society and the public interest?
23. The emotional and psychological impact on children whose parent is deported is all but ignored by this government. We know from our work that children who are forcibly separated from a parent as a result of a deportation, may experience this as a loss equivalent to a parental death – albeit a highly traumatic separation for which the State is responsible. Children can revert to bed-wetting, become withdrawn, self-harm, attempt suicide and run away. Deep and significant trauma is routinely experienced, which can result in PTSD and mental health consequences that will affect a child for the rest of their lives and have wide-ranging consequences for their life chances. We have regularly come across situations where children would be taken into care if a parent was deported and yet the Home Office is either unaware or unconcerned by this, until a last ditch appeal is made. At the most extreme end, we have worked with a family who believe that their son’s death was a direct result of his father’s deportation – leading him to be preyed on and groomed into criminal activity as a minor and ultimately killed aged 14 years old.
24. Under the strict thresholds created by the Immigration Act 2014 these deeply harmful, and often foreseeable, consequences will be frequently insufficient in and of themselves to prevent a deportation. As well as the trauma to those directly affected, these consequences will have a long term detrimental affect on society. Bizarrely the 2014 Act dictates that the public interest will always be served by deportation. Clearly, frequently, the reverse is true and these deeply significant consequences should form part of a broader and more realistic “public interest” assessment.
25. Even worse, in a significant number of cases, a child’s interests are either not represented at all, or not given adequate consideration in a deportation case. Whether or not a child’s interests are considered fully or at all will depend on a variety of factors completely outside of a child’s control including (a) whether a child’s parent makes representations about why he/she should not be deported or appeals a decision to refuse a human rights claim; (b) whether a child is notified that the Home Secretary intends to deport their parent; (c) whether a child qualifies for legal aid having regard to the need for there to be a financial assessment of the parents’ resources; (d) whether their parent can afford to appeal a decision, made in consequence of a deportation order if there is no access to legal aid; (e) whether in that scenario the parents can afford the costs of commissioning expert evidence assessing the child; (f) whether a parent wants to involve a child in the nerve-wracking and painful deportation decision-making process; and (g) whether a child is given an opportunity as part of their parent’s human rights appeal to make their views known. Even where there is an appeal, the extent to which children play an active role in the proceedings will vary widely since there is no mechanism to formally require or permit this. Rather than further restrict the ability of marginalised children to resist the forced separation of a parent, the Ministry of Justice should be consulting on how to ensure that children are centred in this process and supported to give their own evidence as to where their best interests lie.
26. Another societal cost, entirely overlooked by the consultation and by Government policy making in this area is the economic impact of deportation. Detention and deportation costs millions of pounds every year, but the hidden costs of leaving families without the economic support of a parent are completely unknown. In our experience the partners of people who are deported are predominantly low-paid keyworkers – nurses, supermarket workers, carers, nursery practitioners – who have been keeping the country going throughout the pandemic. When their partner is deported this will often remove either financial or childcare support, forcing these women to either take on multiple jobs or to move out of work and onto benefits with the consequent impact on the public purse.
27. Seemingly unconcerned with the impact of existing Article 8/deportation law on a generation of traumatised children, the consultation document prefers to complain about the cost of defending litigation, brought by the minority of appellants who are able to fundraise for their case or receive exceptional case funding. The overall cost of this litigation is rooted in the perversity of a system which makes deportation automatic rather than discretionary. If you are going to try and deport people who were born here, have lived here for decades, are fully integrated in UK society and have extensive family connections then it follows that appeals will be brought. If you instead reserve deportation for exceptional cases where people do not have such well-established lives in the UK then the costs would dramatically decrease.
28. The consultation document cynically claims that Article 8 puts public at risk by allowing “dangerous” criminals to frustrate the process. As with all offenders in the prison system, non-nationals are subject to risk assessment and probation and monitoring arrangements as necessary. Many will be assessed as posing no risk to the public and those that do can be managed in the same way as a British citizen would be managed. The Government does not claim that British citizens who have served their sentence and are subject to ongoing criminal justice probation or monitoring pose an unacceptable risk to the public and there is no reason why foreign nationals should be deemed any different. To suggest otherwise is xenophobic scare-mongering.
29. The automatic deportation regime and the corresponding system for Article 8 appeals visits the racial discrimination present in the criminal justice system on children who have a Black parent facing deportation. While the Home Office does not publish a breakdown of the types of offences for which deportation orders have been served, our experience indicates that a significant proportion, if not half, relate to drugs offences. By way of example, sentencing statistics for 2020 show that the number of Black people convicted for drug offences is 405.7% higher than White people relative to the ethnic proportions of the UK population. Any moves to further increase deportations and restrict the availability of Article 8 will likely further exacerbate this institutional racism that is already baked into the system.

Below is testimony from one of our Families for Justice mothers who has been living with the impact of deportation on her and her two sons since her childhood sweetheart was deported in 2019:

Since the deportation of my partner in 2019 I have felt hopeless and helpless. As I was going through the most emotional time of my life. I started suffering from depression and this is when Families for Justice came in to our life and showed me some light. Without their help I don’t think I would be in a hopeful place. My partners exit from our lives has made a very negative impact on myself and my two boys. This impact is still here till this day as my sons are missing their father being in their life physically on daily basis. My 5-year-old son has become very isolated and unsociable. He asks about his father every day and I have now run out of answers. My 14-year-old boy Jonah has become emotionally distracted and isolated, he used to make friends easily and was a very sociable young boy and this has since changed. My younger son Kaye aged 4, he has since become very anxious when I leave for work and at times I have to distract him so I can leave the house, Kaye no longer feels comfortable talking to new people and keeps a distance from others as though he is afraid to get too attached. My younger son Kaye is struggling to understand why this has happened to us as a family he sometimes believes his father abandoned him for another family. I really worry for my children and the emotional impacts this has had on them, sometimes Kaye sees his dad when he is not there, I feel helpless when they are feeling angry or confused about the situation that they have been put in through unfair deportation of their dad who had always been in their lives.

As for these impacts, I myself cannot do what their father used to do when he was here. They miss all the activities which they used to do. Both my sons love their father so much that they don’t understand why all this has happened. I’m in a very difficult situation of having to be their mum and dad at the same time. I am trying my best to be both but they still need their dad in their lives as they are growing up.

I feel the way deportation works is unfair as it not only takes away a parent but is also breaking up a family and pushing innocent children into unhealthy circumstances. There should be consideration when it comes to someone like Ruben who has a disability he has a family with young children who miss him immensely.