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Andrew Tettenborn: Brexit is an opportunity to get shot of interfering foreign judges


As anyone who watched Three Girls a few days ago will know, five years ago in Rochdale a complacent local political establishment was shamed into investigating and prosecuting nine extremely unpleasant men from Pakistan. These gentlemen had set up a nice little racket involving the debauching, prostitution, brutalisation and rape of vulnerable underage white girls. All were convicted and went to prison, although the majority have already been released (!).

The legal fun then started. Four of the gang being naturalised Britons, the Home Secretary took steps to revoke their citizenship with a view to expelling them. With an entirely straight face, all four of these child-molesters objected, on the ground that – what else – they themselves had children born here and had no wish to be parted from them. Their human right to private and family life under Article 8 of the European Human Rights Convention, no less, demanded it.

Three months ago the Upper Tribunal gave them short shrift. They have, of course, appealed at your expense and mine (remember, legal aid is still available for claimants who murmur the words “human rights”, if not for the rest of us – no doubt on the venerable basis that government largesse should be distributed in strict proportion to demerit). One suspects they will fail, but you never know.

But other concerns remain.

First, revocation of citizenship is only the beginning. It leaves the men involved theoretically free to stay here as aliens; and as the Tribunal remarked (the case is here, for those interested), different issues might arise on an application for final removal. This would, of course, be a separate exercise, with more argument by more lawyers, all of course employed at the public charge, and possibly even a different outcome.

Secondly, there is, as so often happens, a hidden Brexit point here. But for the grace of God there would have been a serious EU block to any efforts at removal. As it happened we were lucky: none of the four men involved had minor children born in the UK who were wholly dependent on them. If they had, the whole deportation enterprise might well have foundered. This is because under EU law member states are barred from expelling even a non-EU citizen if he has dependent family who are EU citizens (for example through being born in the UK), since this is regarded as infringing the rights of the latter to live and move throughout the EU. Memo to negotiators starting work on 19 June: this must be high on your list for removal as from midnight on Independence Day. Whatever transitional arrangements we may have as regards EU citizens (and arguably they should be reasonably generous), to give the EU a veto on the removal of non-EU undesirables would be intolerable.

Thirdly, this whole debacle once again ought to make everyone think carefully about the desirability of the UK’s continued adherence to the ECHR. Article 8 says this: “Everyone has the right to respect for his private and family life, his home and his correspondence.” There would be nothing irrational about giving these words their natural (and one suspects their intended 1950) meaning and no more: police and social workers should not without very compelling reasons be allowed to barge into your home or bedroom, tap your phone, read your post or whisk your children away to prevent them being polluted by your views on same-sex marriage.

But, as the enlightened in the Council of Europe and the professional human rights establishment will tell you, anyone urging interpretations of that sort can only be ignorant, outdated and stick-in-the-mud. Courtesy of the European Court of Human Rights, Article 8 has inflated and expanded out of recognition, rather in the manner of Aesop’s frog. It now comports not only a right not to be separated from your extended family, even as an indirect result of deportation for crime, but also a right in that family not to be constrained uncomfortably to follow you should you be required to leave. And it goes without saying that this may trump any right of deportation that might otherwise exist: it’s all a matter of balance.

If you’ve read this far, no doubt you can see the sting in the tail. The necessary weighing of UK public morality against familial compassion currently does not fall to those we elect to protect our borders and way of life and can if we want get rid of. Instead it is done by members of a panel of 47 remote judges, 46 of whom do not come from this country, who decide on the basis of abstract reasoning supposedly reflecting the common experience of 47 European nations, but in fact largely divorced from the morality of any of them. Once we have freed ourselves from the all-encompassing net of the EU, this is another bossy and self-selecting oligarchy we would do well to consider whether to send packing.

(Image: James Russell)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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