In the Media

We can and should deport foreign criminals, never mind their family ties | Ryszard Piotrowicz

PUBLISHED October 11, 2011

Human rights are crucial, but British courts' timid interpretation of the law should be challenged. A change in legislation may help There is a widespread belief that a foreigner with family ties in the UK who commits a serious offence here cannot be deported. It is a myth , albeit a powerful one, perpetuated by the timidity of British judges who are showing excessive deference to the European court of human rights. It is time to challenge the way the British courts, and for that matter the European court, interpret the right to family life, which is protected by article 8 of the European convention on human rights. Human rights are crucial in our society because they help to redress the power imbalance between the state and the citizen. But while these rights limit the state's authority and the manner in which it is exercised, they are not intended to deny the state's power. All of us have an interest in the government being able to run the country effectively. However, the deference of British courts in interpreting the right to family life to prevent deportation of foreign criminals with family ties in the UK is wrong. It can, and should, be challenged. This can be achieved without unreasonable interference with the right to family life. The legitimate interest of the state in deporting foreign criminals works for the benefit of all. Some rights, like the prohibition on torture , are absolute. It is never permitted to torture. However, the right to family life is not absolute. After all, we do not usually spare convicted criminals from a prison sentence just because they will be separated from their relatives. Nevertheless the right to family life must be respected by the state and protected by the courts. Despite this, the courts should not feel constrained always to allow foreign criminals to remain in the UK. If family ties are so important, the person being deported could take their relatives with them. There is a balance to be achieved and this does not require that the family ties of the individual must always trump the interest of the state in protecting itself and its citizens. Rather, it should become the norm that foreign nationals who commit serious offences can be deported even if they have close family ties in the UK, and that should not be a human rights violation. The position is more complex where there are children involved. It is right and proper that their welfare must be assured. However, there are situations where, bluntly, the best interests of the children would be to have their relative deported while they remain in the UK. There is no inherent reason why the right to family life by itself or in combination with an assessment of the best interests of children should require the courts to allow to remain those whose criminal activities make them a threat to society. National courts have a margin of appreciation, which allows some discretion in how they apply the European convention. British courts should take advantage of this and be more willing to resist challenges to deportation orders for those who have committed serious offences. If the individual is unhappy they can then test the matter at the European court. The government, quite properly, cannot force the courts to interpret the right to family life in one way or another. If the government wants things to change ? and if the courts persist with their current interpretation ? it will have to change the law and run the risk of being overruled in Strasbourg. This might be the best way forward. It would allow the UK to challenge the right in the courts; to make the argument that the legitimate interest of the state in deporting foreign offenders ? and it is a legitimate interest ? is being denied by a much too wide interpretation of the right to family life. Human rights Prisons and probation European court of human rights UK criminal justice Ryszard Piotrowicz © 2011 Guardian News and Media Limited or its affiliated companies. All rights reserved. | Use of this content is subject to our Terms & Conditions | More Feeds