Human Rights? Yes, But Who’s?

The death of Margaret Thatcher has, of course, dominated the news. This has pushed many news stories into the background over the last two days. I was thinking of writing about her and her policies but a little nugget of news caught my eye while I was digging through the papers (online of course), being the news junkie that I am. It concerns an issue of human rights abuse, perpetrated by Her Majesty’s Government, against a certain Mustafa Abdi, formally of Somalia.

Mr Abdi arrived in the UK from Somalia on the 7th May 1995, and immediately claimed asylum. His claim was rejected but, being the kind souls the government are, he was granted exceptional leave to stay until February 2000. Mr Abdi repaid this kindness by committing the most heinous criminal acts, namely rape and indecency with a child, for which he was convicted on 23rd May 1998, and sentenced to eight years in prison.

On the 22nd May 2002 the Home Secretary authorised Mr Abdi’s detention until a deportation order could be issued. 2nd July 2002 saw Mr Abdi appeal against the deportation order and make a fresh claim for asylum. These were denied and his appeal right exhausted on 4th December 2003. Earlier in 2003 a probation panel interviewed him and found that he was unsuitable for parole on the grounds that during his time in prison he had received fourteen charges relating to offences against prison discipline. Six of these offences involved fighting. Moreover, he was assessed as presenting a high risk of sexual offending and a medium risk of general offending on release.

In September 2003 Mr Abdi’s release became automatic but, because of the Home Secretary’s authorisation issued in 2002, his detention continued until a deportation order could be issued. This was issued on 5th April 2004 and also contained a paragraph authorising the continued detention of Mr Abdi until his deportation.

Unfortunately, in August 2004, the last carrier willing to take “enforced returns” withdrew, meaning the government could not deport anyone without their permission. Carriers were willing, however, to take anyone provided they went voluntarily. Something that Mustafa Abdi was not willing to do. In 2005 he made another application for asylum which was refused. Bail was also refused by the Chief Immigration Officer.

In 2006 the government reached an agreement with African Express Airlines making enforced removals to Somalia possible. By this time, Mr Abdi was given leave to apply for a judicial review of his case. In 2007 his case went before the Court of Appeal who ruled that his detention had been lawful because he could have returned to Somalia voluntarily. He was release on bail in 2007 but was returned to prison in April 2008 due to breaking his bail conditions. He has now taken his case to the European Court of Human Rights on the grounds that his detention until 2007 violated his Article 5 rights:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … … …

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

His attempts to include Article 3 were dismissed. However, the ECHR have upheld his appeal on the basis that monthly review by the government, during his incarceration, were not carried out.

I know this has taken a long time to explain but it seems that it was needed. This is a simplified version. The full case can be accessed here.

This, then raises the question:

Why is it allowed that a criminal, convicted of a crime so serious it is just short of murder, committed against an under-age citizen of  a country he himself is not a citizen of, can raise a legal challenge against the government of that country over his lawful detention?

It appears that this case solved no useful purpose other than to gain this man approximately £7,000, and possibly set a dangerous precedent, opening doors up for similar cases. This man is still in jail awaiting deportation, therefore I very much doubt that he did this as a crusader for his fellow illegal immigrants. No, the government and the courts, in allowing this spurious case to go ahead, have possibly allowed a crack to appear in its ability to detain illegal immigrants, into which a good lawyer can put his legal jemmy and prise open. I may be completely wrong about this and, if I am, then I apologise but, it does seem to me, that this case is one that should never have been allowed to be put to the test. I can see others now looking at their detention and whether their monthly reviews have been carried out to the letter. Its not a case of whether illegal immigrants who commit atrocious crimes should be protected by the Human Rights Convention or not, but whether those rights should be placed over those of of their victims.

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