UK Court of Appeal judges have rejected cases brought by two men against the use of a tough new law brought in to curb the rights of foreigners convicted of criminal offences to challenge deportation orders — the so called “deport first, appeal later” system.
The judgment is a strong endorsement of the new system in an early legal test of the new Section 94B of the Nationality, Immigration and Asylum Act. However, the judges have criticised “misleading” guidance on using the new provision issued by the Home Secretary, Theresa May.
Kevin Kinyanjui Kiarie, born in Kenya, and Courtney Aloysius Byndloss, a Jamaican, have hit the headlines as they challenged the provision that requires some of those facing deportation to leave Britain and make their appeals against deportation from their country of origin.
According to Section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted in 2014 by the new Immigration Act — see provision below) this procedure should occur if the continued presence of the individual in Britain is considered “not conducive to the public good”.
Under the new provision the Secretary of State would certify this to be the case, and that the individuals’ ECHR Article 6 rights (to a fair hearing at court) would not be harmed by pursuing an appeal against deportation “out of country”. Certification can only occur if the the individual would not “face a real risk of serious irreversible harm if removed to the country or territory to which [the person] is proposed to be removed”.
Filed under Analysis, Criminal law, ECHR, European Convention on Human Rights, Human rights, Immigration law, Law, Media, Politics, Public law, UK Law, UK Politics
The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.
Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.
Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.
He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”
No amnesty for the IRA 187! That was the (apparently) tough message from Northern Ireland Secretary Theresa Villiers in response to the revelation that many potential suspects of crimes during the Troubles had received “letters of comfort” suggesting they would not be prosecuted.
These have been called “get out of jail” cards by critics of the scheme, initiated under the Labour Government in the context of Northern Ireland peace negotiations. Angry Loyalists, Conservatives and others believe it amounts to an unconstitutional amnesty, never agreed by the UK Parliament. They are particularly outraged that in the case of John Downey one of the letters, sent to him by the Northern Irish police in error, caused the collapse of the Hyde Park bombing trial. His lawyers had successfully claimed abuse of process before Mr Justice Sweeney in the High Court.
So no wonder Villiers had to talk tough. But is she actually saying anything tough? Actually, no. Her speech in effect signs up to the scheme and suggests the Tories in the Government may huff and puff but will quietly leave it alone. Her statement says nothing new and changes nothing. Her main contention is this:
“They [the letters] will not protect you from arrest or from prosecution and if the police can gather sufficient evidence, you will be subject to all the due processes of law, just like anybody else.”
That’s not new, tough anti-IRA bomber policy – that’s just a description of the status of the letters. They were sent to “on the runs” (OTRs) – potential suspects of often serious terrorist crimes who had moved outside UK jurisdiction. Under the Northern Ireland peace deal those convicted offenders already in prison would be due for early release – they would serve no more than two more years for their offences. But it was difficult to know how such a principle would affect those who had evaded justice – and weren’t likely to want to rush home and put themselves on trial even if two years was the maximum likely sentence.