The latest Tory human rights demand is a bid to put ‘blue water’ between them and Labour – offer a way for the public to distinguish between the parties, who both have suspiciously similar policies.
Having flown a kite for repealing the Human Rights Act in order to make it easier to deport illegal immigrants, it seems Kemi Badenoch has run into resistance – so now she wants it disapplied from cases involving them.
But she hasn’t thought this through, I think; she is trying to use a sledgehammer to crack a very few small nuts. A blanket removal of human rights from illegal immigrants creates risks of conflict with international courts for two main reasons: human rights are universal – they apply to everyone including criminals, to prevent states from arbitrarily stripping away protections as Badenoch is trying to do; and a blanket “waiver” could lead to unjust outcomes like separating families for minor crimes or deporting people to unsafe countries.
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One of the biggest issues is that of people using Article 8 of the European Convention on Human Rights, which is enshrined in UK law in the Human Rights Act 1998, to avoid deportation because they have the right to family life, having met a partner and had children.
It might be argued that, by ignoring some UK laws in order to commit crimes, these people have waived their right to be protected by other UK laws. But under current international and UK human rights law, rights like Article 8 (family life) are not explicitly forfeited by unlawful behavior.
But this right is qualified, not absolute. Badenoch and her Shadow Home Secretary, Chris Philp, have made much of claims that judges in UK courts have expanded definitions of the human rights exemption (and others) “in ways that defy common sense”. Philp said: “Where you have courts just constantly expanding the definition in a way that was never contemplated at the beginning…it gets out of hand.”
Isn’t the solution, then, to nail down exactly what may provide an exemption and what may not? Instead of declaring that illegal immigrants’ universal human rights have been removed (which cannot be done, legally, in the UK or anywhere else that is signed up to the European Convention on Human Rights), the law could be reformed to severely restrict human rights claims in deportation cases involving criminality.
And it just happens that we have a Bill going through Parliament into which such changes could be inserted very easily – the Border Security, Asylum and Immigration Bill, which is currently at the committee stage.
This Bill could amend the law to state that any non-citizen convicted of a serious crime (e.g., violence, sexual offenses, drug trafficking, terrorism) is presumed to have forfeited the right to rely on Article 8 to resist deportation. Relationships formed after the individual knew they were liable for deportation could be excluded from consideration in family life claims.
It has been suggested that exceptions could be allowed, but only in extremely rare cases like that of a parent of a severely disabled child with no other caregiver – but I am not convinced about how this would work. If a person has been convicted of murder, they won’t be allowed to go back home to look after a child – they’ll be too busy serving a life sentence in prison.
Again, proportionality has to be the key and a tiered system may be the solution. So:
- Murder, terrorism and/or rape would demand automatic deportation unless deportation would violate Article 3 (torture risk – I’ll go into that elsewhere in this article). Family ties are irrelevant.
- For theft and fraud, family/child welfare arguments can be considered, but deportation is still likely unless harm to the child is extreme.
- And for minor crimes, family rights carry greater weight.
The other main abuse of human rights law involves Article 3 (prohibition of torture). Article 3 of the ECHR is absolute—deportation is prohibited if there’s a “real risk” of torture or inhuman treatment in the destination country. This applies even to serious criminals.
But the law could be changed to allow deportation under strict conditions if the individual poses a grave threat to national security, provided the UK secures legally binding assurances from the destination country (for example,monitored by independent bodies) that they will not face torture. This mirrors the approach used in the Abu Qatada case:
Qatada, a radical Islamist cleric, was described as a threat to national security and was accused of having ties to terrorist groups. He was detained in the UK for years and faced deportation to Jordan, where he was wanted for trial on terrorism charges.
He successfully argued that deporting him to Jordan would violate his right to a fair trial under Article 6 of the ECHR, as evidence obtained through torture might be used against him. His case went through multiple appeals, and he was eventually deported in 2013 after the UK secured assurances from Jordan that torture evidence would not be used.
Finally, in relation to Article 3, courts could be required to consider the severity of the individual’s crimes in the UK when assessing proportionality (a terrorist’s risk to British society v their personal risk abroad).
To prevent lengthy appeals and legal processes that delay deportation, judicial reviews for foreign national offenders (FNOS) could be fast-tracked; the number of appeals allowed in deportation cases involving serious crimes could be limited; and a requirement could be created that human rights claims must be raised at the earliest stage of immigration proceedings, not as a last-minute tactic.
The UK could borrow from systems like the U.S. “Aggravated Felony” rule, where certain convictions trigger mandatory deportation with minimal exceptions.
This would involve creating a statutory list of crimes (murder, rape, terrorism, as described above) that result in automatic loss of the right to remain in the UK, regardless of family ties. Exceptions would require approval by the Home Secretary and a higher court.
For lesser offenses, proportionality tests could be retained – but requiring courts to give greater weight to the seriousness of the crime over family life claims.
The UK could also negotiate bilateral agreements with high-risk countries to ensure safe returns – such as assurances against torture and monitored reintegration programs.
Exceptions for individuals trafficked into crime or those convicted of minor offenses such as petty theft linked to poverty should be maintained.
Vulnerable groups like children and victims of modern slavery should be protected from blanket policies.
And robust judicial oversight should be ensured, to prevent wrongful deportations to unsafe countries.
The approach outlined above would provide clarity for the courts, preventing judicial overreach and providing the shift of immigration powers from the courts to Parliament that Badenoch apparently craves.
It respects the UK’s obligations under the ECHR while prioritizing public safety.
And, crucially, it discourages criminals from exploiting human rights laws as a shield.
So how about it, Yvette Cooper?
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Tory human rights demand is a silly bid to put ‘blue water’ between them and Labour
The latest Tory human rights demand is a bid to put ‘blue water’ between them and Labour – offer a way for the public to distinguish between the parties, who both have suspiciously similar policies.
Having flown a kite for repealing the Human Rights Act in order to make it easier to deport illegal immigrants, it seems Kemi Badenoch has run into resistance – so now she wants it disapplied from cases involving them.
But she hasn’t thought this through, I think; she is trying to use a sledgehammer to crack a very few small nuts. A blanket removal of human rights from illegal immigrants creates risks of conflict with international courts for two main reasons: human rights are universal – they apply to everyone including criminals, to prevent states from arbitrarily stripping away protections as Badenoch is trying to do; and a blanket “waiver” could lead to unjust outcomes like separating families for minor crimes or deporting people to unsafe countries.
Buy Cruel Britannia in print here. Buy the Cruel Britannia ebook here. Or just click on the image!
One of the biggest issues is that of people using Article 8 of the European Convention on Human Rights, which is enshrined in UK law in the Human Rights Act 1998, to avoid deportation because they have the right to family life, having met a partner and had children.
It might be argued that, by ignoring some UK laws in order to commit crimes, these people have waived their right to be protected by other UK laws. But under current international and UK human rights law, rights like Article 8 (family life) are not explicitly forfeited by unlawful behavior.
But this right is qualified, not absolute. Badenoch and her Shadow Home Secretary, Chris Philp, have made much of claims that judges in UK courts have expanded definitions of the human rights exemption (and others) “in ways that defy common sense”. Philp said: “Where you have courts just constantly expanding the definition in a way that was never contemplated at the beginning…it gets out of hand.”
Isn’t the solution, then, to nail down exactly what may provide an exemption and what may not? Instead of declaring that illegal immigrants’ universal human rights have been removed (which cannot be done, legally, in the UK or anywhere else that is signed up to the European Convention on Human Rights), the law could be reformed to severely restrict human rights claims in deportation cases involving criminality.
And it just happens that we have a Bill going through Parliament into which such changes could be inserted very easily – the Border Security, Asylum and Immigration Bill, which is currently at the committee stage.
This Bill could amend the law to state that any non-citizen convicted of a serious crime (e.g., violence, sexual offenses, drug trafficking, terrorism) is presumed to have forfeited the right to rely on Article 8 to resist deportation. Relationships formed after the individual knew they were liable for deportation could be excluded from consideration in family life claims.
It has been suggested that exceptions could be allowed, but only in extremely rare cases like that of a parent of a severely disabled child with no other caregiver – but I am not convinced about how this would work. If a person has been convicted of murder, they won’t be allowed to go back home to look after a child – they’ll be too busy serving a life sentence in prison.
Again, proportionality has to be the key and a tiered system may be the solution. So:
The other main abuse of human rights law involves Article 3 (prohibition of torture). Article 3 of the ECHR is absolute—deportation is prohibited if there’s a “real risk” of torture or inhuman treatment in the destination country. This applies even to serious criminals.
But the law could be changed to allow deportation under strict conditions if the individual poses a grave threat to national security, provided the UK secures legally binding assurances from the destination country (for example,monitored by independent bodies) that they will not face torture. This mirrors the approach used in the Abu Qatada case:
Qatada, a radical Islamist cleric, was described as a threat to national security and was accused of having ties to terrorist groups. He was detained in the UK for years and faced deportation to Jordan, where he was wanted for trial on terrorism charges.
He successfully argued that deporting him to Jordan would violate his right to a fair trial under Article 6 of the ECHR, as evidence obtained through torture might be used against him. His case went through multiple appeals, and he was eventually deported in 2013 after the UK secured assurances from Jordan that torture evidence would not be used.
Finally, in relation to Article 3, courts could be required to consider the severity of the individual’s crimes in the UK when assessing proportionality (a terrorist’s risk to British society v their personal risk abroad).
To prevent lengthy appeals and legal processes that delay deportation, judicial reviews for foreign national offenders (FNOS) could be fast-tracked; the number of appeals allowed in deportation cases involving serious crimes could be limited; and a requirement could be created that human rights claims must be raised at the earliest stage of immigration proceedings, not as a last-minute tactic.
The UK could borrow from systems like the U.S. “Aggravated Felony” rule, where certain convictions trigger mandatory deportation with minimal exceptions.
This would involve creating a statutory list of crimes (murder, rape, terrorism, as described above) that result in automatic loss of the right to remain in the UK, regardless of family ties. Exceptions would require approval by the Home Secretary and a higher court.
For lesser offenses, proportionality tests could be retained – but requiring courts to give greater weight to the seriousness of the crime over family life claims.
The UK could also negotiate bilateral agreements with high-risk countries to ensure safe returns – such as assurances against torture and monitored reintegration programs.
Exceptions for individuals trafficked into crime or those convicted of minor offenses such as petty theft linked to poverty should be maintained.
Vulnerable groups like children and victims of modern slavery should be protected from blanket policies.
And robust judicial oversight should be ensured, to prevent wrongful deportations to unsafe countries.
The approach outlined above would provide clarity for the courts, preventing judicial overreach and providing the shift of immigration powers from the courts to Parliament that Badenoch apparently craves.
It respects the UK’s obligations under the ECHR while prioritizing public safety.
And, crucially, it discourages criminals from exploiting human rights laws as a shield.
So how about it, Yvette Cooper?
Vox Political needs your help!
If you want to support this site
(but don’t want to give your money to advertisers)
you can make a one-off donation here:
Be among the first to know what’s going on! Here are the ways to manage it:
1) Register with us by clicking on ‘Subscribe’ (bottom right of the home page). You can then receive notifications of every new article that is posted here.
2) Follow VP on Twitter @VoxPolitical
3) Like the Facebook page at https://www.facebook.com/VoxPolitical/
Join the Vox Political Facebook page.
4) You could even make Vox Political your homepage at http://voxpoliticalonline.com
5) Follow Vox Political writer Mike Sivier on BlueSky
6) Join the MeWe page at https://mewe.com/p-front/voxpolitical
7) Feel free to comment!
And do share with your family and friends – so they don’t miss out!
If you have appreciated this article, don’t forget to share it using the buttons at the bottom of this page. Politics is about everybody – so let’s try to get everybody involved!
Buy Vox Political books so we can continue
fighting for the facts.
Cruel Britannia is available
in either print or eBook format here:
The Livingstone Presumption is available
in either print or eBook format here:
Health Warning: Government! is now available
in either print or eBook format here:
The first collection, Strong Words and Hard Times,
is still available in either print or eBook format here:
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