28 November 2013

Human Rights' Public Image

There is a problem with human rights law's representation in the media. 'Human right to make a killing: Damning dossier reveals taxpayers' bill for European court payouts to murderers, terrorists and traitors' and 'Human rights ‘farce’ let 300 criminals stay in UK' are examples of claims that human rights are used to compensate or protect criminals. Adam Wagner, in 'Too little too late as Daily Mail “corrects” bogus human rights splash', explains how human rights' compensation assertions are irreconcilable with the truth. The judiciary recognises the potential to abuse human rights protections. This post examines a judicial response to that abuse.

PK v SSHD demonstrates how the judiciary vocally abhor the idea that criminals may abuse human rights: if an appellant's claim is proper, fair enough; but if the appellant has no chance to succeed but appeals interminably to delay his or her punishment, the judiciary will destroy the claim.

(This excludes the extreme where death row convicts appeal--to delay their execution and secure more time to live. But that situation is special because the death penalty itself breaches the human right to life, which renders such appeals well-founded.)

Court of Appeal (Civil Division)

[2013] EWCA Civ 1500

27 November 2013

PK (Congo) = Appellant
Secretary of State for the Home Department = Respondent

Lords Justices Longmore and McFarlane, and Sir Stanley Burton

2. What Happened?

After a series of criminal convictions the appellant, PK, was denied British citizenship. Eventually the SSHD ordered his deportation, which he disputed and appealed against.

The case arrived in the Court of Appeal (Civil Division) (CA) on 27 November 2013--seven years after the SSHD's order. The CA was furious because the appellant repeatedly abused the British justice system's respect for human rights as a delaying strategy to avoid deportation and remain in the UK.

3. On Which Human Rights Did PK Rely?

PK claimed that a return to his homeland, the Democratic Republic of Congo, would result in inhumane or degrading treatment or punishment, or his torture. The UK has a positive obligation under European Convention on Human Rights (ECHR) Article 3 not to deport if such fears are accurate.

PK also claimed his removal would separate him from his child and partner. The UK has a qualified duty to respect individuals' rights to family life under ECHR Article 8. Deportation and separation, argued PK, would breach his right to respect for family life.

The CA held both claims were unsubstantiated: there was no risk of Article 3's violation; and if Article 8 was interfered with, it would not be a violation because Article 8's second paragraph's qualifications would be satisfied.
  • The SSHD relied upon immigration and asylum law that aims to protect individuals from criminals.
  • Such protection is necessary in a democratic society.
  • Deportation is proportionate to the legitimate aim to protect against criminals.

4. The Judiciary's Righteous Manifestation

The CA judged the deportation order legitimate.

PK argued the criteria that Wilson LJ collected in OH (Serbia) v SSHD should be applied in every immigration and asylum case. He asserted OH (Serbia) was improperly applied to his case. He therefore suggested the judiciary's early approach to his case inadequately examined the SSHD's order. So any action based on the lower courts' judgments would be wrong.

The CA reiterated OH (Serbia)'s importance but decided its steps need not be applied 'mechanistically' (at [24]). After this, it was simple to admonish the appellant and the system for allowing him to abuse human rights' procedures for his nefarious gain:
the delays and multiple applications and appeals made by the appellant demonstrate (…) the legislation, and perhaps the lack of adequate resources in the UKBA and the Tribunals, create too many opportunities for litigation and delays. The decision of the Asylum and Immigration Tribunal in 2007 was clear and was not and could not have been successfully challenged. It is difficult to see why the appellant was not removed soon after he was arrested in June 2007 following his absconding. Delay in removal inevitably gives rise to a strengthened article 8 claim to remain in this country (Per Sir Stanley Burnton at [22]).
I (…) agree (…) it is utterly mystifying that the appellant was not deported in 2007. It must be depressing for immigration and asylum judges, when they take great care over their decisions, to find that their decisions are not acted on for several years and sometimes, not at all (Per Longmore LJ at [26]).

5. Conclusion

You may notice the second link in this post supports the contention that human rights are attacked in the media and agrees with PK (Congo) that Article 8 claims are often spurious. The second link, then, is quite accurate in its accusation against many Article 8 claims. But that does not mean the judiciary silently accept the situation.

The problem, however, is not the attempt to use human rights to protect family life. Rather, the problem is a few individuals' attempts to claim Article 8's protection, even though fully aware their claims will fail. The media should be more responsible when reporting on human rights: it is simply inaccurate to represent the judiciary as apathetic towards criminal behaviour--whether a physical armed robbery, or litigation that seeks to avoid the consequences of armed robberies.

Rather than criticising the European Court of Human Rights for protecting individuals' interests and the British judiciary for upholding similar ideals, the media should better focus its attention. The government's/legislature's prescribed frameworks for dealing with deportation allows criminals to abuse human rights. The media should ensure that politicians--the legislators--are held accountable for domestic legal procedures, rather than attacking judicial organs' attempts to protect basic freedoms. That way, the democratically elected law makers may be forced (shamed) into creating effective laws. And the rest of us need not relinquish our fundamental liberties.

To link this essay with the learning law theme, students should be aware that media law articles require critical examination before referencing in assessments.

Created: 27 November 2013. Version 1.0.

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