The paper which appears below under
the title “Convicted foreign criminals and the right to family life (2)” was
completed on 13 February 2013. It is
appropriate to precede it with further comments following the Home Secretary’s
article on the subject which appeared in The Mail on Sunday on 17 February. The Home Secretary accuses the judges of
disregarding the will of Parliament in failing to implement the provisions of
HC 194 (see below for an explanation of HC 194) when considering appeals
against deportation by convicted foreign criminals. Her anger appears to have been provoked by
three recent decisions of the Upper Tribunal (Immigration and Asylum Chamber),
the most recent of which is discussed below.
One of her complaints is that “some judges seem to believe that they can
ignore Parliament’s wishes if they think that the procedures for parliamentary
scrutiny have been weak”. This appears
to be a reference to another case Izuazu [2013]
UKUT 45. The way Immigration Rules are
made is explained in legal briefing paper 8.63.
Under the provisions of section 3(2) of the Immigration Act 1971 they
are subject to approval by both Houses of Parliament by the negative resolution
procedure. The Rules contained in HC 194
went through this procedure in June 2012 and were debated at some length by the
House of Commons. However, the Tribunal
in Izuazu made a disparaging and
unjustifiable reference to this procedure by saying that it “provided a weak
form of Parliamentary scrutiny” (paragraph 49).
See the full
Briefing Paper No 8.69