Cats and Dogs and Smoke and Mirrors: What’s Really at Stake in the Government’s ‘Overhaul’ of the Human Rights Act?
This Human Rights Day, Professor Nicola Barker considers who is most at risk in the forthcoming 'overhaul' of the Human Rights Act and reviews the fake or misleading stories of immigrants used to stroke racist outrage.
Ten years after Theresa May’s infamous ‘catgate’ speech, in which she referred to ‘the illegal immigrant who cannot be deported because, and I am not making this up, he had a pet cat’, this anecdote, which was in fact made up, was once again shared this week by a Conservative MP, Scott Benton, on BBC’s Politics Live (7th December 2021). It appears to be based on an immigration appeal, IA/14578/2008, decided on 10 December 2008.
In this case, a Bolivian man sought to remain in the UK on the basis of his relationship with a British partner and part of the evidence that they presented as to the existence of their relationship was that they had a cat together. The Secretary of State had initially refused leave to remain and the Immigration Tribunal allowed the man’s appeal on the basis that he was in a relationship with a person present and settled in the UK. The Secretary of State appealed, claiming that the Tribunal placed inappropriate weight on the relationship, including their joint cat. Already, it is highly misleading to claim that a cat alone was the reason the Tribunal overturned the Secretary of State’s decision. However, when we turn to the Secretary of State’s appeal against the Tribunal’s decision, the case has even less to do with either the cat or the Human Rights Act. The appeal decision makes it clear that the government had failed to follow para 53.4.1 of the UK Border Agency enforcement instructions and guidance. In other words, the appeal was allowed on the basis that the government had failed to follow its own guidance in refusing leave to remain. Not only was this decision not based on a cat, it was not even based on the Human Rights Act. In the final paragraph of her decision, Senior Immigration Judge Gleeson makes the wry remark that ‘The Immigration Judge’s determination is upheld and the cat, [ ], need no longer fear having to adapt to Bolivian mice’ (para 7). This is a short 7 paragraph decision and it would surely not have been beyond the Conservative Ministers and MPs citing it to have actually read it. However, Scott Benton MP introduced further hyperbole to the misleading anecdote this week when he claimed on Politics Live that ‘What we have seen is asylum seekers quote that they have a cat or dog at home and that constitutes their family life and as a consequence of this their removal from this country should be halted.’ For the removal of any doubt that his remarks are based on May’s speech, he goes to say: ‘Theresa May when she was Prime Minister [sic] highlighted this….’ And when challenged by another guest who notes that May had misrepresented that case, he insisted that ‘the fundamentals of the case were correct.’ This case is not so much a warning about the excesses of the Human Rights Act as it is about the dangers of judicial levity being co-opted into political hyperbole and misrepresentation.
The widespread debunking of this anecdote has not prevented its repetition by Benton, nor similarly misleading claims by other Conservatives: the current Justice Secretary Dominic Raab also recently claimed that the right to family life prevented the deportation of a drug dealer who had not paid maintenance for his daughter. This was another anecdote taken from May’s speech and fails to acknowledge that the law has since changed to make it much harder for ‘foreign criminals’ to resist deportation through claiming their right to family life, including those who, like the young man in Raab’s example, had grown up in the UK since early childhood.
On this Human Rights day, we might reflect on the limited usefulness of the Human Rights Act to those who have a family life in the UK but whom the government nevertheless seek to remove. We might talk about the racism inherent in assertions that ‘foreign criminals’ ought to be punished twice, first by imprisonment for their crime and then on their release by being separated from their family through deportation. For example, RA had travelled to the UK from Iraq at the age of 14 in 2007. His asylum claim was rejected but he was granted limited leave to remain in 2016 based on his relationship with his British wife and child. A few months after this was granted, his mother in Iraq sent him a false passport so he could visit her, and he was subsequently convicted of possessing or controlling a false or improperly obtained identity document. He was sentenced to 12 months in prison and served with a decision to deport. His daughter speaks very little Kurdish and his wife’s family live near their home in Yorkshire, assisting with childcare. The judgment acknowledges that his imprisonment had ‘impacted badly’ on his young daughter. Nevertheless, the court took the view that it would not be unduly harsh on his wife and child to relocate to Iraq with him, or to remain in the UK and have a long-distance relationship with him via Skype and occasional visits. While accepting that RA’s deportation would have ‘serious adverse effects’ on his daughter, his deportation was not considered to be a disproportionate interference with the family’s Article 8 rights, either individually or together. This case is much more representative of the types of decisions that are currently being made about the right to family life of foreign nationals at risk of being deported from the UK than those highlighted by Benton and Raab. The bar for invoking Article 8 rights in these cases is very high and would almost certainly not be met by either a pet or a child where the parent is not actively involved in their life.
The effectiveness of the Human Rights Act in protecting the family lives of ‘foreign criminals’ has already been undermined by a 2014 amendment to the Nationality, Immigration and Asylum Act 2002 that emphasises that deportation will not violate the right to family life unless it is ‘unduly harsh’. However, the keenness of the government to water down the Human Rights Act even further, and their willingness to misrepresent cases involving migrants and asylum seekers in order to convince the public to allow them to do so, underlines how useful the Act has been in holding the government to account and challenging discriminatory laws. For example, in the last 3 years there have been 135 cases seeking to uphold or advance women’s rights and 71 did so successfully. These included: a case that successfully challenged the exclusion of unmarried couples from the widowed parent’s allowance and another that successfully challenged the exclusion of unmarried partners from a survivor’s pension under the Local Government Pension Scheme unless they had been nominated as a beneficiary; a case in which the Metropolitan Police were held to account for their failure to undertake an effective investigation in rape cases; and a case in which the Secretary of State had failed to provide adequate safeguards to protect against violations of Article 8 during strip searches of prisoners.
The Human Rights Act is not perfect and protects some types of rights more effectively than others but it is clear that without the Act, the rights of women and those of minority sexes, genders and sexual orientations in particular are at risk from Dominic Raab’s intention to focus on what he considers to be ‘core fundamental rights’. He has made it clear in his earlier writing on the subject (in his book The Assault on Liberty: What Went Wrong with Rights) that he regrets ‘the expansion of new human rights’, particularly those that impose positive obligations on the government: ‘claimants can now select from an arsenal of new rights to command receipt of a range of diverse public services – including police protective services, NHS healthcare, social services and even environmental protection’ (p.124). These rights are particularly important for women, who have had to rely on the Human Rights Act when the police failed to properly investigate rape complaints in the Worbuys case (above), enabling him to commit hundreds of offences before he was eventually caught, as well as other cases, such as that brought against the Police Service of Northern Ireland after they failed to conduct a proper investigation in the rape case of a vulnerable young woman with Asperger’s Syndrome. The HRA has been used to require a coroner to conduct an Article 2 inquest into alleged failures by the police in their investigation of a woman’s murder by her partner. It has also been used to require a local authority to provide a school education for the child of a woman who had fled the family home due to domestic violence and who was unable to educate her child at home due to being profoundly deaf and illiterate. And it has been used to challenge the refusal to provide criminal injuries compensation to a woman who had been sexually assaulted and raped by her step-father on the basis of eligibility criteria that excluded crimes committed by those living under the same roof.
While the government seek to stoke racist outrage by pointing to fake or misleading stories of immigrants ‘abusing’ the Human Rights Act, it is actually women’s rights, as exemplified in these cases, that are most at risk in the forthcoming ‘overhaul’ of the Human Rights Act.
Professor Nicola Barker’s research on the Human Rights Act was funded by a British Academy mid-career fellowship. In February 2021, she is co-hosting a workshop with Feminist Legal Studies at the University of Liverpool and online: A Feminist Review of the Human Rights Act. Register here: https://www.eventbrite.co.uk/e/postponed-a-feminist-review-of-the-human-rights-act-tickets-186707335667