Judge hung out to dry

Free Movement — 

As we have previously argued on this blog here and here, attacks by newspapers on judges for following and applying the law are unwarranted and dangerous in a healthy democracy.

In one recent such attack article, the Daily Mail named a particular immigration judge and published a paparazzi-style photograph of him in a personal capacity. The newspaper, which clearly had a copy of the decision in question, stated of a man fighting removal from the UK that ‘a judge ruled it would breach his human rights to deport him’ and went on to assert that the judge ‘allowed the 28-year-old to remain in Britain’.

Free Movement has obtained a copy of the determination in question. It transpires that the Home Office official responsible for presenting the case in fact conceded on behalf of the Home Office that the appeal must be allowed on human rights grounds. The established case law clearly demanded this outcome. The judge went on to consider whether the man would also retain his refugee status while remaining, but the decision to allow the man to stay was that of the Home Office. There was no attempt at an appeal by the Home Office, unsurprisingly.

Aside from the issue of the wisdom of attacking judges at all, the Daily Mail is quite simply incorrect in its assertions: the appeal was conceded by the Home Office, not allowed by the judge.

It is, then, somewhat surprising that the UK Border Agency and an aide to Home Secretary Mrs May were so keen to blame the judiciary for the outcome of the case. The Daily Mail closed the article with these words:

Last night the Government admitted it was powerless in the face of the tribunal’s decision, with an aide to Mrs May stressing there was nothing the Home Secretary could do. ‘We are at the mercy of the courts,’ they said.

The UK Border Agency said: ‘We do not believe this individual needs or deserves refuge in this country.’

Judges are unable to defend themselves. By any stretch of the imagination, this is abominable, dishonest behaviour by the UK Border Agency and by the unnamed aide to Mrs May.

Free Movement

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

10 responses to Judge hung out to dry

  1. Fully agree with you FM, also “we are at the mercy of the courts”, what’s that supposed to mean in a democracy based on the rule of law? In former communist countries for example judges had reasons to deliver verdicts which pleased those in power. For a government of a democracy based on the rule of law to be at the mercy of courts is a worrying statement.

  2. This makes me angry. I’ve written to my MP about this to ask him to confront T May about it. Though my MP isn’t the most supportive on immigration issues, he is Labour… I’ll post if I get an answer.

  3. Can we not all do something about this? It’s great to see FM defending the judges who have been so viciously and unjusifiably attacked, but on this blog… it’s surely preaching to the converted? Could we not all sign a letter addressed to the papers in question, for example? We may not change everyone’s mind about immigration but at least the facts could be corrected and the judge’s reputation defended?

  4. Can we not all do something about this?

    I agree! There are so many of us who want to do something about this BUT we are all in different sections and different websites, we all need some kind of mutual organisation or website we can co-operate and do things like “sign a letter addressed to the papers in question!” etc

  5. Agree with Frances M, is there anything we can do? This is a witch hunt! the UT Judges at Field House are not softies. The Daily Mail reporter should be sent back to school to learn how to read properly!

  6. Julian Wells

    Yet another attack on Judges. The comments attached to the article just confirm that the article was nothing more than rabble rousing.

    Looking at the case dispassionately, yes the offence was very serious and would normally justify deportation. The Secretary of State appears to have failed to address the Article 3 risk adequately in light of existing caselaw that says that people from his tribe are at risk and cannot reasonably relocate and failed to address the risk to the community issue that could justify revocation of refugee status.

    The comments by Theresa May’s office were shocking and clearly indicate a complete disregard for the separation of powers.

    Theresa May’s office is not powerless in the face of the courts as she could have lodged an appeal with the appellate court. The truth of the matter is that they are powerless because they have no grounds to appeal.

    Publishing a photograph of SIJ Perkins alongside an article crafted to inflame anger in the minds of ordinary citizens who do not appreciate or comprehend the legal issues, is inviting trouble.

    I have to disagree with the conclusion that Ms Holmes conceded the case. My reading of the determination does not indicate that that was the case at all. Paragraph 20 is a typical judicial sandwich ‘a la’ SIJ Perkins.

    The reasoning of the Judges in this case is clear and well founded and I would not have sought to appeal this further to the court of appeal. The fact remains that the government does not want to spend the necessary resources to deconstruct the appellant’s arguments and establish that he was a continuing risk to the community and that he was not longer at risk in Sudan. The fact that the government failed to put forward a case that could justify deportation is not the fault of the courts but the failure of the executive to do its job properly. The comments by Theresa May’s office are disingenuous, dangerous and demonstrate a clear lack of understanding of the department’s duties.

    Personally I would have sought permission to concede the case given the caselaw and circumstances. There was no way in which the case could have succeeded without clear evidence on risk on return and risk to the community.

    • Free Movement 20 July 2012 at 1:57 pm

      The case was conceded by the Home Office at an earlier hearing – see para 2.

  7. Julian Wells

    Thanks Colin I stand corrected. Missed that part :(

    Given that concession, there was not much that could have been argued against the appeal being allowed. There was no indication as far as I could see that the Secretary of State had sought to withdraw the concession as having been given improperly. It makes the comments by the government even more disingenuous.

    The concession was properly given in light of the caselaw and circumstances so it is really unacceptable that the Home Office turns around and says that it has nothing to do with them and that they are at the mercy of the courts.

Trackbacks and Pingbacks:

  1. Bad reporting, human rights and criticising judges | applyingforlaw - 31 July 2012

    […] Here’s an interesting post from the Free Movement blog, concerning a recent story in the Daily Mail. The story concerned a tribunal decision about whether human rights law prevented the deportation of an asylum-seeker convicted of raping a 12 year old girl. […]