Does the long-delayed deportation of Abu Qatada force the human-rights law rethink that Theresa May wants?

Theresa-May_1716248cby Joseph Markus

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.

  1. John D said:

    I think your conclusion is not altogether correct. The fact is that all front bench politicians want to stay on the “good” side of their backbenchers and party activists. May has just been throwing red meat their way – at public expense – to buttress her position as a frontbencher. The principal stumbling block to the deportation of Qatada was always the situation in Jordan. As you rightly say, this case has forced the Jordanian administration to upgrade their own standards of justice – an all round gain for human rights globally. What is the likelihood of another person now being successfully deported to Jordan? Very much greater now, so a change in the existing law is now unnecessary. The prevailing climate within the Conservatives is predominantly anti-European and fearful of UKIP’s electoral clout. We can expect these same kinds of ridiculous statements from May and other embattled frontbenchers right the way through to the next general election. After that, it should all simmer down, back to where we were at the start of this whole pantomime.

    • josephmarkus said:

      I hope you’re right – that it is just pantomime. My fear is that if the Tories win the next – or possibly any other – election, the pantomime may become reality.

  2. John D said:

    Short of some unprecedented event, I anticipate that we may well be embarking upon a long period of coalition governments. I think it is possible that Labour will be the larger party after 2015 but I believe they will need to rely upon support from what remains of the Lib Dems and nationalist parties to get legislation through. The Tories have got UKIP clutching them by the throat but they cannot divorce Nigel – ah!

    • senex72 said:

      – Well it may not be so simple to win this argument! On what is reognition of rights based? Rousseau seems at first to see them as somehow universal on account of the Noble Savage idea, as existing without society or States. This was possible after French explorers discovered an apparently idyllic existence on South Sea Islands, seen as yet “unspoiled” by the ills of civilisation. However when one tribe was found to have completely exterminated another the idea lost its staying power. Rousseau then seems to have rooted rights in the implied Social Contract. So they become civic rights within the Sovereignty involved. The citizens make commitments and so rights grow out of the terms of the People’s exercise of their sovereignty. It would seem hard to establish them in a “free float” so to speak.

      The Republic, in a Constitution agreed by referendum, (and defended to the death by the Conspiracy of Equals) would welcome all men in to the new France committed to its aims – in effect to popular revolutionary soveregnty – but certainly not admit aristos, priests, or Jesuits fanatically determined to restore the hold of superstition against the Enthronement of Reason so solemnly celebrated in Notre Dame. So rights are to be seen as Civil Rights, extending to the boundaries of the Republic and to those who enter to add support to its Social Contract. Subsequently the Napoleonic Code removed the host of independent Courts and judicial powers stemming from custom and feudal obligation, and also established the Inquisatorial procedures so much superior (I suggest) to our own English system whith its relics of trial by combat and villagers’ compurgations.

      It is hard to see were the supposed independent power of the Courts to rule on rights can be defended. Contrary to the views of Lord Justice Justice the Courts would seem to exceed their proper power if they challenge the expressed will of the Sovereign People within the civil code, and could certainly have their decisions overturned in such a case. Because where else except from within the Civic Rights of citizens duly enrolled can the binding power arise?

      Where administrators have admitted within the boundares of the modern State
      those who deny the modern right to individuality within the civic code, they are undermining that State’s existence and are possibly guilty of treason. That is they are undermining the right of modern men not to associate as well as to asssociate with any sect or belief; the right to leave and renounce it unscathed according to one’s own(properly unaccountable) existentialist decision. Access to civil rights it might be argued rests on one’s agreement to join in the civil contract of the modern democratic State in which they are rooted; in firm acceptance and recognition of individuality of choice – and demonstrating in practice a determination not to undermine it; whether such subversion is attempted by secret whisperings, open propaganda or threatened violence. All attempts to subject the free citizens to a cultish,superstitious or religious domination from which they cannot freely escape would justify summary exile and/or punishment on the simple production of inquisatorial evidence, and can not be challenged by claims from any Courts to defy popular sovereignty or the outcome of free election, which is the foundation of anypower the Courts might be granted.

      I am sorry if these observations raise problems, or are unnecessarily protracted or obscure, but they do appear to give pause for thought.

  3. senex72 said:

    I have my ndoubts about the ease with which these views may be sustained!

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