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Theresa May cannot dictate to judges on human rights cases, lawyers warn Theresa May cannot dictate to judges on human rights cases, lawyers warn
(40 minutes later)
Leading human rights lawyers have warned Theresa May that she cannot dictate to judges over their interpretation of the rights of foreign prisoners battling to avoid deportation.Leading human rights lawyers have warned Theresa May that she cannot dictate to judges over their interpretation of the rights of foreign prisoners battling to avoid deportation.
The home secretary signalled a renewed showdown with the courts over immigration law on Sunday by indicating that she was willing to bring in primary legislation if judges fail to implement rules giving priority to deportation over the right to family life enshrined in article 8 of the European convention on human rights.The home secretary signalled a renewed showdown with the courts over immigration law on Sunday by indicating that she was willing to bring in primary legislation if judges fail to implement rules giving priority to deportation over the right to family life enshrined in article 8 of the European convention on human rights.
MPs are to be asked in the next few weeks to approve a Commons motion advising the judges that the right to family life is not absolute and should be overridden if doing so is in the national interest.MPs are to be asked in the next few weeks to approve a Commons motion advising the judges that the right to family life is not absolute and should be overridden if doing so is in the national interest.
May said she would set out on Monday an overhaul of the rules on family migration that will mean UK citizens earning less than £18,600 will not be allowed to bring a foreign husband, wife or partner into Britain to live with them. May said she would set out on Monday an overhaul of the rules on family migration that will mean UK citizens earning less than £18,600, depending on the number of children involved, will not be allowed to bring a foreign husband, wife or partner into Britain to live with them.
The gross income threshold is lower than the minimum £25,700 figure that May tried to persuade Nick Clegg to accept, according to a letter leaked in March. The home secretary said a minimum gross income of £24,800 would be needed if there were two children involved, with a further £2,200 for each extra child.The gross income threshold is lower than the minimum £25,700 figure that May tried to persuade Nick Clegg to accept, according to a letter leaked in March. The home secretary said a minimum gross income of £24,800 would be needed if there were two children involved, with a further £2,200 for each extra child.
It is believed that as many as 25,000 families a year could be affected by the changes. Critics say British citizens will face a choice of exile or splitting up their families, and warned that it would lead to a string of legal challenges under article 8. It is believed that as many as 25,000 families a year could be affected by the changes.
The home secretary first promised action over article 8 at the Tory party conference last year when she said she cited the case of a Bolivian man and his pet cat. On Sunday she told the BBC she was now prepared to bring in legislation if the judges ignored the will of parliament in redefining the right to family life. Critics say British citizens will face a choice of exile or splitting up their families, and warned that it would lead to a string of legal challenges under article 8.
The home secretary first promised action over article 8 at the Tory party conference last year, when she cited the case of a Bolivian man and his pet cat.
On Sunday she told the BBC she was now prepared to bring in legislation if the judges ignored the will of parliament in redefining the right to family life.
"This is not an absolute right. So in the interests of the economy or of controlling migration or of public order – those sorts of issues – the state has a right to qualify this right to a family life," she said. "What I am going to do is actually set out the rules and say this is what parliament, this is what the public believe is how you balance the public interest against an individual's interest."This is not an absolute right. So in the interests of the economy or of controlling migration or of public order – those sorts of issues – the state has a right to qualify this right to a family life," she said. "What I am going to do is actually set out the rules and say this is what parliament, this is what the public believe is how you balance the public interest against an individual's interest.
"We are going to ask parliament to vote on this to say very clearly what constitutes the right to a family life. I would expect that judges will look at what parliament has said. If they don't then we will have to look at other measures and that could include primary legislation." "We are going to ask parliament to vote on this to say very clearly what constitutes the right to a family life. I would expect that judges will look at what parliament has said.
"If they don't then we will have to look at other measures and that could include primary legislation."
Lawyers warned that ministers could not use secondary legislation such as the immigration rules to dictate to judges or trump their interpretation of article 8.Lawyers warned that ministers could not use secondary legislation such as the immigration rules to dictate to judges or trump their interpretation of article 8.
"Parliament cannot predetermine the results of individual cases which all depend on careful and compassionate assessment of very different facts. However merciless Mrs May may be, hard cases make bad law and politicians make bad judges," Geoffrey Robertson QC told the Sunday Times. "Parliament cannot predetermine the results of individual cases, which all depend on careful and compassionate assessment of very different facts. However merciless Mrs May may be, hard cases make bad law and politicians make bad judges," Geoffrey Robertson QC told the Sunday Times.
Sir Geoffrey Bindman said: "Any change is ineffective because ultimately what controls the situation is article 8 as interpreted by the court of human rights and the domestic courts. The legal position is that in so far as the immigration rules are incompatible with the human rights convention then the convention prevails." Sir Geoffrey Bindman said: "Any change is ineffective because ultimately what controls the situation is article 8 as interpreted by the court of human rights and the domestic courts.
Shami Chakrabarti, director of the human rights group Liberty, told the Guardian that article 8 had always been qualified and allowed the government considerable latitude over immigration control. "The legal position is that in so far as the immigration rules are incompatible with the human rights convention then the convention prevails."
"The home secretary is far better reviewing immigration rules than bashing the Human Rights Act or the judiciary," she said. "But given the toxic nature of immigration politics in a recession, it becomes especially important to distinguish – in both rules and rhetoric – between abuse and criminality and anything that splits up genuine innocent families of British nationals." Shami Chakrabarti, director of the human rights group Liberty, told the Guardian that article 8 had always been qualified and allowed the government considerable latitude over immigration control. "The home secretary is far better reviewing immigration rules than bashing the Human Rights Act or the judiciary," she said.
"But given the toxic nature of immigration politics in a recession, it becomes especially important to distinguish – in both rules and rhetoric – between abuse and criminality and anything that splits up genuine innocent families of British nationals."