Theresa May to give judges new deportation guidance

Home Secretary Theresa May says a right to a family life is not "absolute"

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Judges are to be given new guidelines aimed at ensuring fewer foreign criminals avoid being deported.

The move focuses on those using Article 8 of the European Convention on Human Rights to argue their right to a family life would be breached by deportation.

Home Secretary Theresa May said this right was not "absolute" and could be overridden in the national interest.

Parliament will hold a debate and vote later in June on whether the guidelines should apply, Mrs May told MPs.

Several leading barristers have questioned the need for new guidance, saying the meaning of Article 8 is already clear and judges understand it.

Normal procedure

Deportation should become routine for any foreign criminals jailed for at least 12 months, the government has said, and those sentenced to more than four years should only be allowed to remain in the "most exceptional circumstances".

Under Article 8:

  • Everyone has the right to respect for their private and family life, home and correspondence
  • Family life means the real existence of close personal ties
  • Family life must be respected as a single entity - taking into account the rights of claimants and those with whom they claim to enjoy it
  • Claimants and their families are not guaranteed the right to stay in the UK if they are able to live together elsewhere
  • Private life refers to an individual's personal identity, ability to form relationships with others and physical and moral integrity
  • Private life includes studies, employment, friendships and sexuality
  • A claimant cannot be deported if their right to respect for private life would be completely nullified or denied in their destination country

* Source: Home Office

The home secretary first signalled that the government wanted to alter the way courts interpret Article 8 - the right to a family life - at last year's Conservative Party conference.

She said the meaning of Article 8 had been "perverted" and used to prevent the removal of foreign national prisoners and illegal immigrants.

However, the example she used in her speech, of a Bolivian man who she claimed had been allowed to stay in Britain because he had a pet cat, was widely criticised for being inaccurate.

In the past, judges have interpreted Article 8 through the development of case law.

Speaking on Sunday, Mrs May said the UK was "entitled" to set out its views on the subject and to make clear its belief that all aspects of Article 8 - including when other considerations could take precedence - should be taken into account in rulings.

"This is not an absolute right [to family life]," she told BBC One's Andrew Marr show. "In the interests of the economy, or controlling migration or public order, those sort of issues, the state has a right to qualify the right to a family life."

Mrs May said she wanted MPs to set out "very clearly" their view on what "constituted the right to family life" and how "we balance the public interest against the individual's interest".

She said she would expect judges to "follow and take into account" the views of Parliament, adding "if they don't we will have to look at other measures and that could include primary legislation".

Border 'failings'

Start Quote

The home secretary is far better reviewing immigration rules than bashing the Human Rights Act or the judiciary”

End Quote Shami Chakrabarti Liberty

The Joint Council for the Welfare of Immigrants said that in 2010 only between 2% and 8% of foreign prisoners facing deportation won appeals on Article 8 grounds.

And civil rights group Liberty said the right to family life was already qualified, allowing "considerable latitude over immigration control and the economic well-being of the nation".

"The home secretary is far better reviewing immigration rules than bashing the human rights act or the judiciary," said its director Shami Chakrabarti.

For Labour, shadow home secretary Yvette Cooper said the number of foreign criminals being deported had fallen since 2010 and new guidelines, while a "sensible" move, were no alternative to "serious action" on enforcement.

"The Borders Inspector's report has made clear that failings in administration and enforcement within the Border Agency are preventing hundreds of foreign criminals being deported," she said.

Separately, the home secretary also outlined plans to introduce minimum income requirements for people seeking to bring foreign spouses or children into the country.

From next year, an immigrant from outside the European Union will have to earn at least £18,600 a year to enable their spouse to join them. For those with one child, the level will be £22,400, rising by £2,400 for each additional child.

Migrants seeking to settle will also have to be able to speak and understand English and pass a "Britishness" test, demonstrating an understanding of life in the UK.

Mrs May also announced there will be a minimum probationary period of five years for settlement to deter sham marriages.

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