Raab Amendment Entirely Consistent with Community Law

Dominic Raab’s proposed amendment to the Immigration Bill seeks to substantially restrict the ability of convicted criminals to rely upon their family ties in the UK to avoid deportation. While this amendment has received considerable support from across the house, there have been numerous suggestions that such an amendment breaches the ECHR – which it possibly does – as well as breaching the EU treaties – which it certainly does not.

The UK Borders Act 2007 provides for the automatic deportation of  “foreign criminals” (that is to say,  anyone who is not a British citizen who is: convicted in the United Kingdom of an offence and sentenced to at least 12 months in prison, or;  convicted of an offence prescribed by the Secretary of State under 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 for which they are sentenced to a period of imprisonment). This automatic deportation is subject to a number of exceptions, contained within s33.

The first exception is where such a deportation would breach “a person’s Convention rights”. Dominic Raab’s amendment replaces the words “Convention rights” with “rights under Articles 2 or 3 of the Convention.” Article 2 provides for the right to life, while Article 3 provides for freedom from torture and inhumane punishment. The clear intention of this substitution is to remove Article 8 – which provides for the right to respect for private and family life – from this exemption. Raab’s amendment, however, mitigates this somewhat by providing an exception where

“removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would cause such manifest and overwhelming harm to his children”.

It is important to note that the exemption applies where such a deportation breach “a person’s” rights, and not necessarily the rights of the foreign criminal. In most cases, the substantive question at issue is not whether such a deportation would breach the foreign criminal’s rights, but rather whether such a deportation would breach the rights of a person who is dependant on that foreign criminal. While it is arguable that such a deportation would not, in fact, be a breach of Article 8 – it is clear that the intention of this set of amendments is to mandate for the automatic deportation of foreign criminals even where it would be a breach of Article 8. I am not a Human Rights lawyer, however, the Diceyan in me sees little that is legally (as opposed to politically) problematic in legislating to this effect. Of greater concern, from my perspective, is that argument that this amendments breaches EU Law.

At yesterday’s Questions to the Prime Minister, Mark Lazarowicz derided David Cameron’s backbenchers for supporting “an amendment to the Immigration Bill which everyone knows to be totally incompatible with the European treaties”. Notwithstanding the fact that the amendment is supported by dozens of Labour MPs, Lazarowicz’ claim that the amendment breaches EU Law is utterly without foundation.

The Raab amendment leaves intact the exemption contained within s33(4) of the Act which prohibits deportation where it would “breach rights of the foreign criminal under the Community treaties.” It is worthwhile noting that the Community Law exemption only appears to apply to the rights of “the foreign criminal” and not “a person” – suggesting that the Community rights of dependents of the foreign criminal shall not have any bearing. However, the supremacy of Community Law still applies, and the deportation of a foreign criminal would still be subject to the rights under Community Law of any EU citizen who was dependent upon the foreign criminal.

Following the decision in Zambrano, the basic rule of Community Law is that a state cannot deport a non-EU citizen where that deportation would result in an EU citizen who was dependent upon that non-EU citizen being forced to leave the territory of the EU. It therefore requires a degree of actual dependancy upon the non-EU citizen that does beyond a mere familial connection. The narrowness of the category of persons to whom this rule applies has been made clear in subsequent decisions in McCarthy and Dereci.

A situation of the sort which the Raab amendment envisages was considered by the< High Court of Ireland last year: Smith v. Minister for Justice [2012] IEHC 113. Mr Smith was a Nigerian national who arrived in Ireland with his partner in January 2002. Having been refused asylum, Mrs Smith gave birth in Ireland a few days later. Several months later, Mr Smith travelled to the United Kingdom, where he was subsequently arrested for, charged with, and convicted of various drug trafficking offences, and sentenced to seven years in prison. In 2005, Mr Smith was deported from the UK to Nigeria.

During the years that followed, Mrs Smith was granted a right of residency parasitic upon their son, an Irish citizen. In June 2006, Mrs Smith gives birth to a second child who is – perhaps miraculously – the child of her and Mr Smith (previously in prison in UK, now in Nigeria). As this child was born after 2004 act, the child is not an Irish citizen, but nonetheless enjoys a right of residence parasitic upon its mother’s right of residence. A further child appeared in Ireland in 2006, and in late 2006 Mr Smith illegally re-entered Ireland with another child.

The Minister for Justice subsequently sought Mr Smith’s deportation. Though Mr Smith challenged this decision, in particular in light of the decision in Zambrano, the Minister contended that the issue of Mr Smith were not dependent upon him and therefore that Zambrano did not apply.

The High Court, in 2012, refused Smith’s application for judicial review. The court saw the logic in the arguments of the Minister for Justice, principally – that there is an inherent illogic in the claim that a child is dependent upon a person when that person has, through their own actions, caused themselves to be incarcerated:

“It is clear that while Mr. Smith was, purportedly, in Ireland seeking to place reliance on whatever legal rights he might have in the context of the Irish immigration system, he had in fact, again, travelled to England. On the facts of this case, there is, therefore, no reality to the asserted position of Mr. Smith in respect of his family. He has repeatedly left the jurisdiction and not tended to the needs of his family. The failure is, therefore, directly connected with the very rights now sought to be asserted.”

The rationale behind Smith is entirely consistent with Zambrano. In order for a deportation order to breach the rights of an EU citizen under the treaties, that citizen must be so dependent upon the non-Citizen that they would be forced to leave the territory of the EU with them. It is difficult to argue, in most circumstances, that a child is dependent upon an incarcerated parent. It is extremely difficult to argue that their continued residence within the EU is dependant on an incarcerated parent.

The decision in Smith broadly corresponds with the intended aim of the Raab amendment. It is, in my opinion, entirely reasonable to conclude that where someone has been sent to prison for a considerable period of time, their children are no longer dependent upon them. Therefore, notwithstanding ECHR issues, it appears that Dominic Raab’s amendments to the Immigration Bill are entirely consistent with Community Law.