In short, the answer has got to be no.
Theresa May – who is known for advocating withdrawal from the European Convention on Human Rights and from the jurisdiction of its court – is taking too much from what is really the limited significance of all this. What looks to be taking place is that she is using the deportation as a political football under the cover of the handy cross-party unity over whether it was – broadly defined – “a good thing”.
Let’s take each of her claims in turn.
Article 8 and the nebulous concept of “family life” is keeping too many deportees in the UK for too long.
That may be (personally, I don’t think so), but that is a separate issue that arises nowhere in the series of decisions that blocked Abu Qatada’s (Omar Othman’s) expulsion.
What HM Government had been suggesting, when members of it said that they wanted to ignore the rules and send Mr Othman back to Jordan, is not that they didn’t think his family life was sufficiently important to justify keeping him here. What they were saying was, instead, that they wanted to send him back to a place where the likelihood was that he would prosecuted and tried by a court using evidence obtained through torture. This is something our legal system, rightly, baulks at. And, following the intervention of the European Court of Human Rights, where there is a risk of a “flagrant denial of justice”, a person may not be sent or expelled to such a place.
It is important to keep that in mind. Mr Othman was, to some extent, standing on his rights. And legitimately so. That that was so is suggested most strongly by the fact that once adequate safeguards were in place he agreed to return to Jordan to face the charges. A victory for human rights!
There are too many “layers” of appeals and deportees abuse them.
This proposition is totally contrary to how the system works.
In every case, deportees normally get a right of appeal to a Tribunal – whether that be the First-tier Tribunal (Immigration and Asylum Chamber) or the Special Immigration Appeals Commission (“SIAC”). That body will review the material presented to it and will make findings of fact. They will defer, in general terms, to the Secretary of State’s assessment of the necessity of deportation. The main grounds of review, in most cases involving serious (alleged) crime (due to the automatic deportation regime for custodial sentences over 12 months) will be based in human rights.
I’m sure most would agree that a single layer of fact-finding review is an important check on the executive power to send individuals back to places where they may face ill-treatment – even torture.
Only if the first tier decision involves a material error of law will an appeal be allowed. Where such an error is arguable, it is likely that permission to appeal will be given. Again, that is an important safeguard – this time to ensure that the laws are applied fairly and properly. The appeal court will not review the facts, except where the factual findings are perverse (quite tough to show…).
Mr Othman’s case was an abnormality. Most cases do not go as far and as long as his did. And the only reason his did go so far, and take so long, is due to the involvement of what was essentially a “test issue”. The question that took the case to the Supreme Court, and then on to the European Court of Human Rights, was the issue of whether a violation of fair trial rights by the “receiving state” could prevent deportation. The Supreme Court said that it couldn’t. The European Court disagreed.
Consequently, because of those legal findings, the case returned to the first-instance fact-finding body – SIAC – to apply the correct legal test.
Then the Home Office appealed – largely, I think, due to the high politics involved (the case itself turned on facts – and it was fairly obvious that Mitting J, who presiding in the SIAC – applied the right test). That appeal was probably unnecessary as the legal test had been clarified. The Home Office then sought permission – unsuccessfully – to appeal to the Supreme Court. Again, an enormous waste of time and money.
Only then – as Keith Vaz MP picked up – did the Home Office realise it had the option of a mutual legal assistance treaty with Jordan.
For those reasons, Ms May is wrong to say that this case showcases the worst flaws of the justice system.
Over £600,000 was spent in legal aid fees.
True. But over £1 million was spent on Government legal fees. Why? Well at least the final trip to the Court of Appeal and the application to the Supreme Court could have been avoided. It is also worth remembering that the Home Office instructed three QCs (senior barristers), at great expense, to represent it during the later stages of proceedings.
At that price, the legal aid bill sounds like pretty good value. And most other cases will not cost this much (indeed, cannot cost this much – much of the immigration legal aid work is subject to a fixed fee regime, keeping costs below £1,000).
So, again, Ms May is getting worked up over nothing.
The question is why? The reason? Fairly clear: she just doesn’t like human rights and appears to dislike – non-convicted, innocent – criminals even more. This is just another great opportunity to repeat it.