In with the out crowd
9 July 2012 | By Sam Chadderton
5 November 2013
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The Government’s crowd-pleasing legal stance on immigration is creating fresh challenges for law firms
The Government has got itself into trouble with the judiciary over its approach to the Human Rights Act. Here, we look at the latest cases, European Court of Human Rights developments and the rise in employment law work due to the Coalition’s immigration policies.
The Government’s ‘get tough’ approach to immigration continues to cause embarrassing and unnecessary litigation.
Senior figures are being tripped up time and again by big-hitting human rights lawyers instructed by clients who have the backing of the law, if not the general public.
The Coalition’s apparently desperate scramble to be in tune with the tabloids’ tub-thumping anti-immigration schtick has seen it rush headlong into disputes on which it would be well-advised to take a more measured legal approach.
Home Secretary Theresa May has set her stall out in believing that the judiciary is failing in its interpretation of the Human Rights Act (HRA) and has even questioned the power of the European Court of Human Rights (ECHR) to get involved in the bungled Abu Qatada deportation case.
Having Strasbourg to hand when the human rights outcry bubbles over is useful for a government as conscious of its public image as it is about adhering to legislation.
Supporters of the ECHR – lawyers mainly, but also human rights groups and victims – argue that the legislation has made it easier for it to be enforced in this country and it has enabled tougher scrutiny of laws and the Parliamentary process.
Perhaps that is the real reason why Prime Minister David Cameron, May and Justice Secretary Kenneth Clarke have led calls for its reform. But that’s not the drum they are banging. The Government claims that, 15 years after its inception, the HRA is being used by criminals to escape justice. They contest that it must be reformed immediately and, with April’s ‘Brighton Declaration’ finally adopted by the Council of Europe, the breakthrough may have been made, with a package of measures to cut the number of cases eligible to go to Strasbourg.
Block and tackle
Despite the right-wing attacks on the HRA, research suggests the ECHR is not as obstructive as is made out.
The Coalition reacted to May’s clumsy handling of the Qatada case by deflecting the uproar of his delayed extradition onto the “interfering” ECHR, yet only a tiny minority of rulings have gone against the UK Government.
According to Whitehall statistics, the court has seen a sharp increase in workload and a backlog of 150,000 applications, of which it claims 90 per cent should not qualify for the ECHR. For the court’s part, it is recruiting more lawyers to deal with the casework.
But figures from the Equalities and Human Rights Commission show that of the 12,000 applications brought against the UK between 1999 and 2010, only 3 per cent made it past the first hurdle. Of those, just 1.8 per cent were successful.
Furthermore, statistics for 2011 show the Government lost one in every 200 cases.
The research also shows that while the UK parliament has sovereignty over implementation, domestic courts have the flexibility to interpret the convention differently from the Strasbourg courts.
Despite this, the Government continues to stumble into troubled water, which human rights lawyers believe is because of their “intemperate attitude” towards the HRA. Particularly May, who has attracted stern criticism from a High Court judge and found herself in contempt of court, becoming only the second secretary of state in history to achieve that ignominy.
Deputy High Court Judge Barry Cotter QC called May’s behaviour “regrettable and unacceptable” over yet another farcical immigration case that came before the courts.
Public law firm Duncan Lewis believed it had secured the release of Algerian asylum seeker and convicted robber Aziz Lamari until May’s “intentional breach” of an agreement to release the criminal, whose prison sentence ended in December 2010.
But after UK Border Agency (UKBA) officers got on the wrong side of the Home Secretary, she pulled the plug on the release, before changing her mind – a situation described by UKBA as “deeply regrettable”.
Lamari’s case was handled by Duncan Lewis solicitor Toufique Hossain and trainee solicitor Iylicia Weston, who instructed Landmark Chambers’ immigration and public law barrister Christopher Jacobs.
Duncan Lewis director Adam Tear warns that, because May believes the judiciary is “failing”, it has created a “climate of ministerial interference” in immigration matters.
Failure to comply with court undertakings is more common than it should be. It is only a matter of time before the Home Secretary has her third strike and may be out, says Tear.
Culture of mistrust
Tear believes this case represents the most serious example of how May’s lack of faith in the HRA is seeping into the culture of UKBA, encouraging the agency not to abide by the rule of law. They take their lead from the minister and are influenced by her stance, says Tear.
Addressing this perceived imbalance, says the firm, means immigration lawyers are seeing an increase in cases, in particular questioning and challenging such orders and launching judicial reviews.
Tory anxiety over the human rights industry has even leaked into the process of appointing a new ECHR judge in Strasbourg.
After Matrix Chambers barrister Ben Emmerson QC was nominated to replace President Sir Nicolas Bratza, machinations were set in motion to undermine his bid, according to Blackstone Chambers’ Lord Pannick.
Pannick told The Times of “disturbing rumours” of British Conservatives working against Emmerson because of his liberal human rights work against the Government, including acting for Qatada.
The Government scrutinises the court, its judgments and the European Convention on Human Rights with the suspicion that Strasbourg is pursuing its own agenda rather than applying the law neutrally.
Whether ‘ministerial interference’ again came to pass or not, this week Emmerson’s rival, underdog and accepted ‘safe pair of hands’ Paul Mahoney got the job.
Political lobbying did play a role, according to some of the 300-plus members involved in the voting process, who claimed hostility to a committed pro-human rights candidate saw him scuppered.
Feeling the squeeze
Meanwhile, closer to home, the Government continues to tighten the tap on immigration through its creeping ‘brightest and best’ restrictions. This means employment/immigration lawyers are busier than ever dealing with the fallout from businesses.
DAC Beachcroft associate Afrene Campbell says the Coalition’s policy to reduce net migration from 100,000 to tens of thousands is affecting both the individual and the corporate side.
Financial institutions, insurance companies, health bodies and public sector organisations are increasingly seeking expert advice on how to comply with restrictions on employing non-EU workers.
Campbell says the Government is looking at getting even tougher on immigration. The changes mean there are fewer options available to employers to bring in overseas workers and lawyers will need to find innovative solutions for their clients.
The Government raised the qualification threshold for sponsored skilled workers on 14 June, meaning certain job offers such as IT technicians and office managers are no longer enough to rubber-stamp that golden ticket into this country.
In April 2016 those looking to apply for settlement in the UK will be able to do so only if they are earning £35,000 or more.
Campbell explains that any business that wants to employ non-EU workers has to register for a licence under the Government’s points-based ‘sponsorship’ scheme. This places the emphasis on the company to make sure its employees are compliant with UKBA rules.
Law firms too appear reluctant to press the case. Campbell says many have decided to fill any roles from the existing EU residents market and that those below the magic circle, with their need for cross-border flexibility, have taken a ‘wait and see’ approach.
Campbell speculates that this is one factor behind a tendency towards collaborations and joint ventures rather than full mergers – it gives firms options overseas through partnerships, rather than being single global entities and therefore needing to become sponsors.
Campbell advises businesses that if they breach the stringent immigration rules they are liable for thousands of pounds in fines per worker. They can also lose their licence to employ migrant workers who may have skills vital to their growth.
In the current climate a lot of employers are not recruiting and instead are reducing headcount, so the effect of stricter immigration changes is not yet hitting home. But if the buoyant economy ever returns, expect a lot more outspoken comment on the onerous immigration cap.
Strategy or smokescreen?
Manches employment and immigration senior associate Jayne Sinclair says the feeling among her clients is that the Government’s constant review of immigration law is not necessarily a good thing. She says companies that need skills from overseas to grow are being stunted by a continual hoop-jumping process.
Often, employers seek legal advice on an ad hoc basis because they are worried that while they’ve been sleeping the Government will have unveiled its latest immigration crackdown scheme.
Sinclair says that while she used to be able to count on one hand the number of employment/immigration cases she was advising on per month, the workload has now swollen to several a week.
But she questions the merits of the policy and wonders if the continual crackdown is a “smokescreen” or a genuine strategy.
Where immigration is concerned, the Government’s heavy-handed approach is generating ever-more challenges for lawyers.