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Government’s new Bill of Rights proposes major changes to human rights laws, including making it easier to deport foreign criminals

Summary:

More legislation impacting immigration law has been published today

Date of Publication:
22 June 2022

Government’s new Bill of Rights proposes major changes to human rights laws, including making it easier to deport foreign criminals

22 June 2022
EIN

The Government's new Bill of Rights, which proposes major changes to the UK's human rights laws, has been published today. You can access it here.

Justice statueThe Government announced last month in the background notes to the Queen's Speech: "We will introduce a Bill of Rights to ensure there is a proper balance between the rights of individuals, our vital national security and effective government, strengthening freedom of speech, our common law traditions and reducing reliance on Strasbourg case law."

In a press release published this morning, the Secretary of State for Justice and the Ministry of Justice (MoJ) highlighted some of the changes that can be excepted for immigration law. The press release states: "The Bill of Rights will make it easier to deport foreign criminals by allowing future laws to restrict the circumstances in which their right to family life would trump public safety and the need to remove them. It will mean that under future immigration laws, to evade removal a foreign criminal would have to prove that a child or dependent would come to overwhelming, unavoidable harm if they were deported."

The section of the Bill dealing with deportation states:

8 Article 8 of the Convention: deportation

(1) This section applies where a court is considering, in relation to a decision of the Secretary of State to make a deportation order in respect of a foreign criminal ("P"), the question whether any provision of primary or subordinate legislation relating to deportation (a "deportation provision") is incompatible with the right to respect for private and family life.

(2) No deportation provision may be found to be incompatible with the right to respect for private and family life unless the court considers that the provision requires a public authority to act in respect of P in a way that would result in manifest harm to a qualifying member of P's family that is so extreme that the harm would override the otherwise paramount public interest in removing P from or requiring P to leave the United Kingdom.

(3) For the purposes of subsection (2), harm is "extreme" only if—

(a) it is exceptional and overwhelming, and 

(b) it is incapable of being mitigated to any significant extent or is otherwise irreversible.

(4) For the purposes of subsection (2), it is in only the most compelling circumstances that—

(a) the court could consider that removing P from or requiring P to leave the United Kingdom would cause extreme harm to a member of P's family other than a qualifying child, and

(b) the court could not reasonably conclude that the strong public interest in removing P from or requiring P to leave the United Kingdom outweighs harm to a member of P's family other than a qualifying child.

(5) In this section—
"deportation provision" has the meaning given in subsection (1);
"qualifying child", in relation to P, means a person—

(a) who is under the age of 18,

(b) with whom P has always had and continues to have a genuine and subsisting parental relationship, and

(c) who is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more;

"qualifying member of P's family" means a member of P's family—

(a) who is a qualifying child, or

(b) who is otherwise dependent on P and is a British citizen or is settled in the United Kingdom within the meaning of the Immigration Act 1971 (see section 33(2A) of that Act);

"right to respect for private and family life" means the right set out in Article 8 of the Convention.

According to the MoJ, the Bill will stop "trivial human rights claims" being heard in the courts and will introduce a permission stage requiring people to demonstrate that they have "suffered a significant disadvantage" before their claim can go ahead.

The Bill will also clarify that the UK Supreme Court is the ultimate judicial decision-maker on human rights issues in the UK and that the case law of the European Court of Human Rights does not always need to be followed.

Following last week's last-minute intervention by the European Court of Human Rights preventing the first flight to remove asylum seekers to Rwanda, the MoJ adds that the Bill will confirm that interim measures from the Court under Rule 39 are not binding on UK courts.

The Government's memorandum on the Bill of Rights and the European Convention on Human Rights explains that the Bill will repeal the Human Rights Act 1998 (HRA) and replace the HRA framework. In particular, the Bill will:

  • Restate the Convention rights, described in the same terms as in the HRA and the European Convention on Human Rights;
  • Change the approach to be taken to the interpretation and application of Convention rights;
  • Alter the approach the courts should take to legislation that is incompatible when interpreted using orthodox principles of construction, such that interpretation should not be strained in order to achieve compatibility, and instead the legislation should be declared to be incompatible;
  • Require public authorities to act compatibly with the Convention rights, save where Parliament has provided otherwise through primary legislation;
  • Make provision for how a person may bring a human rights claim, and introduce a new permission stage for human rights claims to proceed;
  • Remove the ability to rely on the Convention rights under the Bill of Rights in proceedings (other than criminal proceedings) relating to breaches alleged to have taken place in connection with military operations overseas;
  • Make provision as to the courts' power to award damages for breaches of Convention rights, and prescribe factors which the courts must consider before awarding damages;
  • Limit courts' powers to allow appeals against deportation on Article 6 grounds, require disclosure of journalistic sources, grant relief affecting freedom of expression or freedom of thought, conscience and religion, and have regard to interim measures of the European Court of Human Rights;
  • Require adverse judgments of the European Court of Human Rights against the United Kingdom to be notified to Parliament, and provide for the circumstances in which remedial secondary legislation may be made;
  • Make provision for giving domestic effect to derogations and the current reservation the UK has to Article 2 of the First Protocol to the ECHR with respect to education; and
  • Make provision in connection with the United Kingdom judge to the European Court of Human Rights.

Legal commentator Joshua Rozenberg had some early analysis of the Bill based on an embargoed copy received yesterday. He noted that ignoring Rule 39 interim measures from the European Court of Human Rights would involve a breach of international law.

Rozenberg added that despite the Government's proposals, the European Court of Human Rights will remain the ultimate judicial decision-maker on human rights issues because the UK will continue to be bound by the European Convention on Human Rights and people will still be able to challenge the UK at the court.

I. Stephanie Boyce, the president of the Law Society of England and Wales, said in response to the Government's announcement: "The erosion of accountability trumpeted by the justice secretary signals a deepening of the government's disregard for the checks and balances that underpin the rule of law. The bill will create an acceptable class of human rights abuses in the United Kingdom – by introducing a bar on claims deemed not to cause 'significant disadvantage'. It is a lurch backwards for British justice."

Human Rights Watch's UK Director, Yasmine Ahmed, said: "Today is a dark day for human rights in the UK. The government is rushing through a British Bill of Rights to replace the Human Rights Act that will likely strip away fundamental protections and affect the rights of people for many years to come."

Following the Bill's publication this afternoon, Mark Elliott, Professor of Public Law at the University of Cambridge, noted that the overall strategy appears to be to marginalise the influence of the European Court of Human Rightswhile reducing domestic courts' scope to uphold Convention rights. Elliott highlighted, though, that nothing in the Bill changes the position in international law.