May plans Commons motion to guide judges on deportations

The Government is to pursue a House of Commons motion “to make it clear when the rights of the law abiding majority will outweigh a foreign criminal’s right to private and family life”, the Home Secretary has said.

But critics called on ministers to bring forward primary legislation if they wanted to have an impact on the decisions of the courts when it comes to deportations.

Theresa May said it was unacceptable that foreign nationals “whose criminal behaviour undermines our way of life can use weak human rights claims to dodge deportation”.

The Home Secretary told MPs that the right to respect for private and family life – Article 8 of the European Convention on Human Rights – was not an absolute right.

She said: “Article 8 is clearly a qualified right, but Parliament has never set out how it should be qualified in practice. So, for too long, the courts have been left to decide cases under Article 8 without the view of Parliament, and to develop public policy through case law.

“It is time to fill the vacuum and put the law back on the side of the British public, so we are changing the immigration rules to establish that if someone is a serious criminal, and if they have not behaved according to the standards that we expect in this country, claiming a right to a family life will not get in the way of their deportation.”

May said that if a foreign criminal has received a custodial sentence of 12 months or more, deportation would normally be proportionate.

“Even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm or if they are a persistent offender who shows particular disregard for the law,” she said.

“For the most serious foreign criminals—those sentenced to four or more years in prison – Article 8 rights will prevent deportation only in the most exceptional of circumstances.”

The Home Secretary said she would shortly ask the House of Commons to approve a motion “recognising the qualified nature of article 8 and agreeing that the new immigration rules should form the basis of whether someone can come to or stay in this country on the basis of their family life”.

She added: “For the first time, the courts will have a clear framework within which to operate, and one that is on the side of the public, not foreign criminals.”

Shadow Home Secretary Yvette Cooper claimed that the motion in Parliament would not change the law or override case law in the way that primary legislation would.

“Surely that approach will risk creating confusion and legal uncertainty,” she argued. “Would it not be better for her to do this properly, through primary legislation, instead? If that were to happen, we would happily hold discussions with the Government to work on getting that right.”

Theresa May defended the use of a House of Commons motion. “We will change the immigration rules, and this Parliament will have an opportunity to make its voice heard and to give its clear view on where it feels the framework should sit in respect of Article 8.”

She added that she had “every expectation” that the motion would have an impact on how Article 8 is interpreted in the courts.

But, in response to a question from former Home Secretary Jack Straw, May said if the motion did not lead to a change in decisions coming from the courts, the Government would look at further measures including primary legislation.

In addition to her announcement on Article 8 of the ECHR, the Home Secretary unveiled a number of other changes on family migration. These include rules that:

• from July 2012, only those earning at least £18,600 will be able to bring in a spouse or partner from outside Europe. This figure was based on advice by the independent Migration Advisory Committee;
• Higher thresholds will apply to those seeking to bring non-EU dependent children to the UK. It will be £22,400 for one child and an additional £2,400 for each further child;
• Applicants who lack the financial support or language skills they need “to play a full part in British life – without becoming a burden on the taxpayer – will be refused entry”;
• non-EEA adult and elderly dependent relatives will only be allowed to settle in the UK “where they can demonstrate that, as a result of age, illness or disability, they require long-term personal care that can only be provided in the UK by their relative here”. They will be required to apply from overseas;
• From October 2013, all applicants for settlement will be required to speak better English and pass the Life in the UK Test; and

• There will be a minimum probationary period of five years for settlement “to deter sham marriages”.

The Home Office said the income threshold and other measures are expected to reduce the number of family route visas granted by between 13,700 and 18,500 per year.