01/11/2014
Entirely by coincidence, just as we are beginning to get to grips with the role of the European Convention on Human Rights (ECHR) on our immigration policy, Charles Moore pops up with
his column on "Human rights", suggesting that human rights have fallen into the hands of the "Euro-tollahs". Lawyers in Strasbourg, the sub-heading to his column goes, "forget that laying down the law only works if it is the wish of the people".
Not untypically, the piece is short on detail but Moore does make the essential point that the rule of law, in a democracy, is good but the rule of lawyers is bad.
Abraham Lincoln, Moore writes, got it right in his first inauguration as US president: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ⦠the people will have ceased ⦠to be their own rulers".
It is even worse, he then asserts, if the lawyers doing the ruling sit in Strasbourg, which is what has happened to Britain. It explains why the term "human rights", like "health and safety", has become something between a curse and a joke.
Human rights, in the public mind, are now a set of arcane rules designed to protect bad people from the rigours of the law, Moore says. After Strasbourg ordered us to give prisoners the vote, the Conservatives felt they had to fight back. They recently set out plans to withdraw from the European Court of Human Rights (ECHR) at Strasbourg unless it agrees that in future its judgments on Britain will be advisory only.
But what Mr Moore could also have said is that it is not only the judges in Strasbourg who are acting against our interests, but also our own. As we saw with
asylum seekers - they have just as malign effect on our systems, preventing thousands of illegal immigrants being returned to France, on the basis of a House of Lords ruling.
Then we have more than a thousand judgements in which foreign criminals
have successfully appealed from 2008 to 2013 against deportation using Article 8 of European Convention on Human Rights. However, it is still the case that
direct intervention from the Strasbourg court has blocked more than 900 attempts by Britain to deport foreign criminals and terror suspects in recent years â more than from any other European country.
Such is the state of play that even the ECHR concede that
reform is necessary, although no-one has even begun to estimate the effect of the Convention, following judicial intervention - as
here (see p.11
et seq). These, and cases
such as these on family reunification, have had a huge effect on our system, driving the admission of
over a million migrants since 2005.
The case mentioned refers to Ilyas Elmi Hode, a Somali national, and Hawa Aden Abdi, a Djibouti national, husband and wife. They were born on 13 February 1980 and 15 January 1990 respectively. Mr Hode was an asylum seeker living in Leeds having arrived in the UK on 18 February 2004. His asylum claim was
accepted in March 2006 and he was granted five years' leave to remain in the UK, due to expire on 16 March 2011.
In June 2006, Hode met Mrs Abdi in Djibouti while she was living in Djibouti. In April 2007 they married in Djibouti and Mr Hode returned to the UK in May 2007. They subsequently had two children, born in February 2008 and July 2011.
Mrs Abdi then applied for a visa to join her husband in the UK under the refugee family reunion provisions, but her application was rejected on the grounds that they only applied to family members who had been part of the refugee's family when they left their country of permanent residence.
The case was appealed to Strasbourg, whence the court found against the UK. Mrs Abdi and her children were allowed to join Hode, who was granted Indefinite Leave to Remain. And in April 2011 the Immigration Rules were amended to permit refugees to be joined in the UK by post-flight spouses during their initial period of leave to remain.
So it is that, under the ECHR provisions, we are not allowed to remove asylum seekers who are then entitled to leave the country â even though they are refugees â marry someone in another country and have children, whence we are required to admit the wife and children to this country, as well as the original refugee.
With this also goes the sheer scale of the court's activity, with it
currently boasting that last year it delivered over 900 judgements and over 1,100 decisions. In addition, single judges declared inadmissible or struck out some 80,500 applications. Yet the number of pending applications, which had stood at 128,000 at the end of 2012, still came in at just under 100,000 by the end of 2013.
Recognised by Parliament as
a problem, Moore is right to highlight the issue once again, but it really is time the British government acted, not only against Strasbourg but against our own judges.
Mr Cameron himself is handicapped by the coalition government, but has pledged to tame the judges if a majority Conservative government is elected in 2015. There is no such promise from Mr Miliband, which again leaves it in the hands of UKIP supporters as to whether they are going to scupper the chances of Mr Cameron and block any chances of change.
Even without leaving the EU, though, breaking the grip of the ECHR will have a significant effect on our immigration policy, which is obscured by the rhetoric on the EU. We need thus to focus on this aspect as well, if we are going to have a serious effect on the migration which so many UKIP supporters say they want to control.
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