As part of an ‘overhaul’ of the Human Rights Act, the government intends to make it impossible for any foreign national who commits any ‘imprisonable offence’ (no matter how minor) to challenge deportation on the basis of the strength of their family life or connection to the UK.
Many people in the UK are not British citizens. The government’s announcement is a clear message to those people – your presence here is entirely precarious. You have to tread a narrow tight-rope where there is no room for mistakes, and zero chance of rehabilitation. These changes will punish children forced to grow up without a parent, and people who grew up in the UK, went to school here, are deeply embedded in British communities, and face deportation.
This takes the trend of increasingly harsh deportation law to a sinister extreme. For a proposal that claims to be about restoring ‘common sense’ and punishing serious offenders, this proposal does neither. It will remove the ability for judges or the Home Office to factor in all the particular circumstances in an individual’s case, and it will largely affect minor offenders – more serious offenders are already generally punished by the existing legislative framework.
The evidence base for this policy change is threadbare. Raab criticised the ‘nonsense’ of deportation appeals he cited only one case – seemingly a case that was decided under the previous deportation regime, before sweeping changes were made to deportation law in 2012 and 2014. Equally, the government states that 70% of successful human rights challenges are brought by foreign offenders who “cite a right to family life”. It is unclear what the category of ‘human rights challenge’ includes (are asylum appeals included?), or whether it means that these cases succeeded on family life grounds, or merely ‘cited’ them. In any case, high volumes of successful deportation appeals demonstrates the necessity of this safeguard as a bulwark against flawed Home Office decision-making.
Nor do these changes account for the widely known and accepted structurally racist outcomes in our Criminal Justice System, that draw people of colour disproportionately into the criminal justice system, where they are more likely to receive prison sentences than their white counterparts.
To understand and to resist this it must be placed in context. This is part of a broader attack on the rights of non-citizens unleashed by the Nationality and Borders Bill. Equally it fits into the broader cross-government effort to put the government beyond the reach of challenge, scrutiny or protest. It is vital that we refuse to be overwhelmed by the tornado of hostile legislation being pushed through by the government, including the Judicial Review and Courts Bill, the Policing, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill, and now this.
No matter what the government throws at us, we will still be here, fighting. Join us.
Current deportation law:
UK deportation law is already excessively harsh. In 2007, the government introduced automatic deportation, under which the Secretary of State must make a deportation order against any foreign national who receives a 12-month custodial sentence. This applies to all foreign nationals, including those who have indefinite leave to remain and families in the UK, and those who grew up and went to school in the country, are deeply embedded in British communities, and could have been eligible for British Citizenship (which is difficult and expensive to apply for). Until cuts introduced in 2013, however, those individuals had a right to legal aid to argue that deportation would be disproportionate to the private and family life that they had established.
Changes to the Immigration Rules in 2012 and the Immigration Act 2014 introduced additional hurdles to those seeking to challenge deportation on the basis of the strength of family or private life in the UK. To succeed in a deportation appeal on the basis of your parental relationship, it is necessary to show that deportation would be ‘unduly harsh’ to the child, which has been interpreted by the courts to mean ‘excessively cruel’. That is to say, UK law sanctions cruelty to children as long as it is not excessive. Equally, existing deportation law requires the deportation of people who grew up in the UK or were even born here, went to British schools, are deeply embedded in British communities and are essentially British in all but paperwork and may once have been entitled to British citizenship. BID has long argued and published research to demonstrate that successive legislative changes have made deportation law excessively punitive, and that the system is in urgent need of reform. To make the existing system yet more draconian would be absurd. But as it is, the Government’s proposals will allow it to deport people even where this would be, within its own current definition, ‘excessively cruel’ to children or partners, whether British or born overseas. It must be opposed.