This is a revolting case of a man abusing a system that was meant to protect people. This man has abused the privilege of being protected by the UK, and should have been deported a long time ago. Article 8 of the ECHR was not meant to prevent the UK from deporting people like Mohammed. It is a qualified right, as it always has been. That is why it was so strange that the Home Secretary to have called this debate – a point that was raised by a number of colleagues on the night.
Nonetheless, the debate was an opportunity to speak up for a constituent who has suffered a terrible injustice. Below is a transcript of my speech to the House:
Graham Jones (Hyndburn) (Lab): I rise to raise the concern of Mr Paul Houston, my constituent, who has been spoken of considerably in the debate. The case is familiar to all MPs. Mr Houston’s daughter died after being the victim of a hit and run by an asylum seeker, Aso Ibrahim Mohammed. Amy was left to die under the wheels of his car.
Mr Mohammed was granted leave to stay in the UK following his asylum case, in which he made the case for remaining here to protect his right to family life under article 8 of the Human Rights Act 1998. During the several years between the tribunal decision in 2010 and the crime for which Mr Mohammed served a paltry four-month sentence in 2003, he claimed he had established a new family with a British national and had two children with her here in the UK.
The delays in dealing with Mr Mohammed, in the words of Mr Houston, were no doubt caused by staff at the Home Office failing to find Mr Mohammed and an ineffective Border Agency. As my right hon. Friend the Member for Blackburn (Mr Straw) said, there were also problems with deportation to Iraq—Mr Mohammed is a Kurdistan national.
Mr Mohammed arrived in the UK illegally, hidden on the back of a lorry, on 31 January 2001 and claimed asylum on the same day. On 18 July 2001, his application for asylum was refused. He appealed the decision, but his appeal failed on 12 November 2002. During that period, Mr Mohammed had already been cautioned by the police for criminal damage. As a result of his failed appeal, the UK Border Agency issued a notice to Mr Mohammed that he was required to leave the UK by 28 November 2002. Had he left, the accident in which Amy lost her life would have been prevented and she would be enjoying life today.
The Houston family have never been provided with an answer as to why UKBA did not take effective steps so that Mr Mohammed was removed from the UK on that date or why he was not at least detained pending removal. When I spoke to Paul in my constituency office, he expressed his qualified support for the Human Rights Act, but he feels that judicial processes led to the perverse outcome.
The Government say the motion will send a signal to the courts, but I am not convinced that it will have any legal impact. Why are the Government not pursuing primary legislation? Mr Houston’s most significant concern about the interpretation of article 8 is not the parameters and guidelines laid down in immigration policy that are the basis for judicial judgment, but the process of determining claims under article 8.
According to the Home Secretary, the guidelines will state that deportation will not be proportionate if an individual has a “genuine and subsisting relationship with a partner in the UK”.
My concern, and that of Mr Houston, is how tribunals arrive at the conclusion that an individual has such a relationship.
There are fundamental differences in the application of criminal law, as in the court case at which Mr Mohammed appeared in 2002, and the application of civil law in the asylum tribunals of 2010. I question the judicial process for determining a “genuine and subsisting relationship” as laid out by the Home Secretary. In criminal law, the evidence is tested beyond reasonable doubt. In the criminal case of Mr Mohammed, the Crown Prosecution Service was unable to present a case beyond a reasonable doubt that Mr Mohammed caused Amy’s death by the more serious crime of dangerous or careless driving, partly owing to conflicting statements. He was instead convicted for having no licence or insurance.
It is worth noting that Mr Mohammed had exhausted all asylum appeals to be in the UK during 2002, a year before the incident that cost the life of that young child. Mr Mohammed was released from prison after completing just four months of his custodial sentence in early 2004. At this point, he was still an illegal asylum seeker and had no right to family life in the UK, and should have been removed from the UK. What will the Home Secretary do to ensure that those who break the law in such circumstances, but receive less than the 12 months’ custodial sentence recommended in today’s guidelines by the Home Secretary, are still deported?
Subsequently, Mr Mohammed accumulated a number of criminal convictions and police cautions over the years, and it was not until late 2008—four years later—that the authorities caught up with him and brought about deportation instructions. What will the Home Secretary do to ensure that those who have entered a deportation process are deported, and further that in cases like Mr Mohammed’s, people cannot circumvent their deportation through a subsequent appeal under article 8? I note with concern that the number of successful deportations has fallen by 18% in the last year.
By 2008, Mr Mohammed was entitled to make a fresh claim stating that to deport him would breach his right to a family life, and legal battles through the civil law system commenced. Following his release, this man has been convicted of possession of cannabis, cautioned for burglary and theft, convicted of driving uninsured, banned from driving and convicted of harassment. My right hon. Friend the Member for Blackburn (Mr Straw) also mentioned a dispute between Mr Mohammed and his former wife involving a £200 fine and his being bound over to keep the peace. This does not sound like a man enjoying a family life.
Mr Houston raises a key concern with the tribunal system—what he describes as the 51% rule of probability. Under this rule, circumstantial and anecdotal evidence allowed Mr Mohammed to win his tribunal case based on the balance of probability, rather than on what we have in the criminal justice system—the “beyond reasonable doubt” rule. During 2009-10, Mr Mohammed was allowed to present evidence in support of his claim through the upper tribunal for immigration and asylum. Mr Mohammed and his knowledgeable legal representatives only had to convince a judge that the evidence of his UK relationship was true on the balance of probability. My right hon. Friend the Member for Blackburn touched on the issues with the evidence submitted to the tribunal, which was flaky to say the least.
Such critical evidence should be tested beyond reasonable doubt. Mr Houston feels aggrieved that such circumstantial and conflicting evidence for the relationship of Mr Mohammed with a British national played a huge part in the judge’s granting him asylum under article 8. As someone sympathetic to the benefits of the Human Rights Act, Mr Houston believes that this is a ludicrous application of British law.
The Government need to do far more to deport foreign criminals. The problem with the motion is that it ignores the real problems of the chaos within UKBA. The Home Secretary may be well intentioned in desiring a fairer justice system, but what are her intentions for dealing with the problems caused by cases such as Mr Mohammed’s, particularly the acceptance of hearsay evidence in the decision-making process at tribunals? What does she intend to do to ensure that justice is seen to be delivered?
I understand that there is an opportunity to challenge and contest the statements presented at tribunals under part 32.14 of the civil procedure code against a person who presents false evidence. In Mr Mohammed’s case, however, there was no challenge, despite the evidence of his relationship being flaky and suggestions that there was an arrangement to the benefit of his asylum claim.
My right hon. Friend the Member for Blackburn spoke about the dubious evidence put forward by Mr Mohammed. I agree that it was simply a means of evading deportation under article 8. In cases where individuals use article 8, on the right to family or private life, and where claims are tolerated because of inefficiencies or delays by the Home Office in dealing with cases, hearsay evidence at a tribunal should be tested and challenged beyond reasonable doubt. Fairness is about not only interpretation or immigration law but the judicial process itself.