Theresa May’s New Crusade

Life should be a fairy tale if you are Theresa May but things are not going according to plan in her Alice in Wonderland world. Although economic and social realities negate everything she claimed in her recent speech at her party’s conference, she could not resist declaring another immigration crusade. The fact that she clearly failed in reducing net migration should be a tipping point in the debate because her inability to curb the influx of foreigners signifies the UK’s skills deficit. However, since delegates paid £250 per head to attend the event, she was under pressure to perform. With adrenaline pumping through her veins at the podium, in a state of total euphoria the home secretary again attacked those without hope who have fled terrible predicaments – as ever, to her refugees are fit and wealthy. Although her pronouncements failed to create the narcotic results she was hoping for, one thing is for sure. In light of her speech, all foreigners are evil and immigrant bashing is the new British fad again. However, since bashing “Pakis” is a decades old tradition in the UK, she added nothing new to the debate and only made herself more dislikeable.

Bewildered by the dehumanising way in which British and European politicians have reacted to persecuted people seeking sanctuary, the UN high commissioner for human rights, Zeid Ra’ad Al Hussein recently drew parallels with 1938 when the free western world limited its intake of Jews fleeing Nazi persecution and arguably even contributed to the Holocaust. David Cameron’s “swarm” remarks and Theresa May’s maxim that immigration makes it “impossible to build a cohesive society” seemed to be at the forefront of his thoughts but he did not name and shame them out of politeness. The UN official urged a closer examination of history and thought that the use of language, even the use of the word “migrants”, made it appear “as if they don’t have rights.” Protesting that “these are human beings”, Al Hussein called upon wealthy European countries to produce a blueprint for the intake of one million Syrian refugees over the next five years. But of course, the Europeans are busy fencing up their borders with razor-wire instead. In being confrontational over the migration issue, the obvious problem for the home secretary is that she is flogging a dead horse. Even her boss David Cameron, who rampages against the welfare state and generally encourages immigrant bashing, has recently converted to the cause of the poor. But that did not reduce her pomposity and may even have intensified her aggressive rhetoric so that she could make him look soft.

Perhaps to punish her for not living up to her promises about reducing the numbers, he is keeping her on a short leash in relation to her bid to ultimately replace him as party leader. (Presumably, as a freethinking capitalist, he does not want to reward her for failure.) Even though she is a huge loser for not hitting targets she herself set five years ago, because she was given a free hand to conduct her crusade May is a real winner at splitting families apart, closing colleges down, driving students out, depriving terrorists of citizenship and so forth. Unsurprisingly, as an ultra right-wing candidate for Tory leadership, the home secretary belligerently argued that it is “impossible to build a cohesive society” in light of the threat posed by mass migration because the net economic and fiscal benefit derived from foreigners is “close to zero”. For her, immigrants push wages down with the result that British workers are “forced out of work altogether”.

It is clear that the chancellor George Osborne (who recently spent a week in China wooing Beijing for greater trade with the UK) and Philip Hammond (who recently schmoosed with the Ayatollahs and reopened the British embassy in Tehran) are pretty shocked by such attacks and both men feel that overseas students must not be further victimised by May’s mad immigration targets. Osborne also wants all Chinese applicants to be treated better and is probably worried that the present hostility to immigration is scaring foreign investment away. Next week, the first state visit to the UK by a Chinese president in a decade will take place and Xi Jinping will be Her Majesty’s guest at Buckingham Palace. Liu Xiaoming, the Chinese ambassador in London, said in advance that Beijing would not be lectured to on human rights and China would be offended if the four-day visit is hijacked for purposes other than business, i.e. building key infrastructure such as nuclear power plants in the UK with Chinese money and technical know-how.

It is hard to see how the UK can be sanctimonious about human rights at a time when it is being scolded by Thorbjørn Jagland, the secretary general of the Council of Europe, for treating as advisory rather than binding the rulings of the Strasbourg court. Jagland, who reportedly said that “people are watching” whether or not the UK would abide by the final decisions of the Strasbourg court on politically explosive points such as prisoner voting and the Article 8 rights of criminals, is worried that because the British are setting a poor example of implementing judgments others such as Russia and Ukraine will follow suit and do the same.

But any requests to break the impasse are likely to fall on deaf ears because the government has even managed to offend the Church of England which wanted 10 Downing Street to do more in order to ease the plight of refugees as this would be the only good and Christian thing to do. Consequently, 84 bishops are unhappy that the government ignored their proposal to provide accommodation, care and support for 50,000 refugees so that a “meaningful and substantial response” can be provided to the continuing “moral crisis”.

In her crazy “new deal”, May proclaimed that the existing asylum system is improper “for the modern world” because it was accessible only to those young enough, fit enough and rich enough to arrive in the UK in the first place – inevitably, the new deal will require overhauling international legal frameworks to please her mad political designs. (Despite Ankara playing hardball by rejecting – as “bribery” – sweeteners in exchange for preventing refugees fleeing Syria from coming to Europe altogether, she must be delighted to see European leaders’ frustration with events.) But alternatively, a frustrated Theresa May also delivered an extremely crude ultimatum to the legal community:

And my message to the immigration campaigners and human rights lawyers is this: you can play your part in making this happen or you can frustrate it. But if you choose to frustrate it, you will have to live with the knowledge that you are depriving people in genuine need of the sanctuary our country can offer. There are people who need our help and there will be people who are abusing our goodwill and I know whose side I’m on.

A lover of the catwalk and a fashion victim who apparently owns as many shoes as Imelda Marcos, soon after her speech at the conference the home secretary was seen rubbing shoulders with actresses Nicole Kidman and Meryl Streep, supermodels Kate Moss and Cara Delevingne and other celebrities at the Women In The World conference. In her speech at that event, she argued:

I think one of the challenges for women in politics and in business and working life is actually to be ourselves. You know what, you can be clever and like clothes. You can have a career and like clothes.

These are catchy lines. But the problem is that her new crusade is hugely disempowering for foreign women deemed to have irregular status – women who, in light of her immigration crackdown, have nowhere to keep their money safe and no roof over their heads.

Parts of her immigration speech are equally contradictory. For example, no evidence exists to support her argument that immigration is forcing thousands of British workers out of work and statistics on jobless people seeking work have not fluctuated since 1992. Equally, more than 90% of those claiming benefits are UK nationals. The Office of Budget Responsibility thinks that the long-term impact of immigration is to reduce the national debt and May wrongly claims that “selective” and “controlled” immigration is good but “at best the net economic and fiscal effect of high immigration is close to zero.” She did not say that the UK should leave the EU but seemed to be on the verge of doing so. And again, corporate leaders seized upon the opportunity to denounce her anti-immigrant rhetoric. “The myth of the job-stealing immigrant is non-sense,” explained Simon Walker, the director-general of the Institute of Directors. He also said that “immigrants do not steal jobs, they help to fill vital skills shortages and, in doing so, create demand and more jobs.” Others such as John Cridland, director-general of the Confederation of British Industry demanded scrapping the net migration targets because skilled migration has a positive effect on the UK economy. The business sector is clear that her attacks are irresponsible and nonsensical.

Legislation abolishing appeal rights has been the hallmark of her tenure in office and unsurprisingly she plans to bury any leftover appeal rights with her new Immigration Bill 2015. Abnormally drafted immigration rules, strewn with internal contradictions, are also another feature of her term as home secretary as is soaring net migration. Like a drunk trying to pretend she hadn’t knocked over the fishbowl and killed the pet goldfish, she is now attacking the rights of minority communities to fuel her campaign to bolster her political standing and to redeem herself from her colossal failure to control net migration. In an attempt to cover things up, her new Immigration Bill 2015 muddles things even further by allowing landlords to evict tenants without a court order. On the one hand, the UK oddly complains that abuse of rights and non-standard documents (i.e. not written in English) make it hard for border force to verify the authenticity of EU residence permits. But, on the other hand, the home secretary expects landlords (who are only interested in money) to know at a glance whether or not a permit presented by a migrant is genuine.

But of course the home secretary’s clever new bill purports to balance out any injustice caused to immigrants by specifying criminal offences for bad landlords. With so much more red tape, who is going to do all this extra work? Prosecuting agents and landlords by creating the offences of illegally leasing premises – and punishing employers with equivalent offences in relation to employing illegal workers – will only further burden a crumbling criminal justice system. Creating new classes of criminals may have mildly deterrent effects but if these new crimes are vigorously prosecuted and the law is enforced in a wholesale manner then the UK will have to build more prisons and spend a hell of lot more money on punishing people.

As we know, the bureaucratic British never do anything in a simple way that they can contrive to do in a complicated one and to this generalisation the present immigration quagmire is no exception. Indeed, it is the spirit of the age and seeks to rebuild British nationalism and restore long lost imperial pride. In advance of the second reading (on 13 October 2015) of the Immigration Bill 2015, the Equality and Human Rights Commission (EHRC) warned parliamentarians that the “fast-track” eviction provisions that facilitate the creation of mass homelessness of immigrant families present a very serious threat to human rights law. It is hard to know his real intentions, but shadow home secretary Andy Burnham vowed to fight against the “right to rent” checks and denounced the measures as a regression back to the days of “no dogs, no blacks, no Irish”. (The equivalent under the Raj went along these lines: “Dogs and Indians Not Allowed”.) The “deport first and appeal later” system also caused the EHRC serious concern and it is worried about the “hostile environment” promised by the home office. However, in R (Kiarie) v Secretary of State for the Home Department [2015] EWCA Civ 1020 (13 October 2015), the Court of Appeal (Richards, Elias and McCombe LJJ) found that the “deport first and appeal later” provisions did not violate human rights law and – although “appalled by the complexity of [the] legislative jigsaw” – Richards LJ held at para 71:

For all those reasons, the Secretary of State is entitled in my view to proceed on the basis that an out of country appeal will meet the procedural requirements of article 8 in the generality of criminal deportation cases. If particular reasons are advanced as to why an out of country appeal would fail to meet those requirements, they must be considered and assessed. But on the evidence before the court, I am satisfied in relation to each of the present appellants that certification under section 94B, requiring an appeal against the relevant deportation decision to be brought from outside the United Kingdom, is not a breach of the appellant’s procedural rights under article 8.

The court found a strong public interest in the deportation of foreign nationals who have committed serious criminal offences and it held that the two appellants concerned (Byndloss, a Jamaican and Kiarie, a Kenyan) would not be denied proper access to justice if their appeals are heard from overseas. In fact, the home secretary does have a hard job. For example, she has even banned the rapper Tyler, the Creator from the UK on the ground that he “made statements that may foster hatred, which may lead to intercommunity violence in the UK.” Having lived in the UK for more than a decade, I have found it to be more racist than any other place in the world (I would include Pakistan, America and Austria on my list; all three are very racist places but clearly less so than present day Britain).

Not long ago, Professor Francis Robinson CBE – who enjoys an acclaimed status for his services to Her Majesty in the field of the history of Islam in South Asia – explained to me that the Indian subcontinent has always been a magnet for migrants (the “sharifs” he calls them, not to be confused with the sharifs of Mecca) who over the centuries poured into India from central Asia to fill the skills shortages in the private and public sectors. By analogy, the UK is not too different and it needs people to do all types of work to keep it ticking. For foreigners like me (who are not victims of persecution), the good news is that we can go elsewhere to be “sharifs” – sounds pretty good to me and I am glad that Francis, who is presently writing a book on Jamal Mian of Farangi Mahall, took the trouble to explain things to me in the way he did.

The most curious thing about the home secretary’s speech was her stance on human rights lawyers. (But in fairness to her, sleazy Asian lawyers running large cutthroat immigration practices cultivating clients from television “advice” programmes and repetitious  advertisements really do need to be denounced for ripping people off.)  She expects human rights lawyers to filter out any bad claims so that justice is done. These ideas are naturally aligned with the recent judicial attacks on those representing foreigners in legal proceedings. As a Pakistani advocate I can say that despite all the corruption in my own country, the courts are totally open to everyone. No matter how vexatious, foreign litigants’ claims are heard by Pakistani judges at the pace claimants want: if anything, the claims advanced by foreign claimants are treated with more respect and urgency than those of the locals. Foreign litigants in Pakistani courts are “red carpet claimants”; pampered and spoilt they are able to pick and choose hearing dates and dictate the timing of proceedings to suit their convenience. British claimants can walk before guardian judges in Karachi, Lahore, Islamabad, Peshawar and Quetta and lay down the terms of proceedings. They are free to ridicule everyone. This includes the authorities/police, bailiffs/court staff and even the judges. In fact British women, who have deliberately abandoned their children in Pakistan, love every microsecond of court time in Pakistan and generally resort to calling their husbands “gay” to publicly “humiliate” them in a conservative society.

No such luxuries are available in the British immigration courts where the reverse is true; to me the UK courts look more and more like the military courts set up by the western puppet General Muhammad Zia ul Haq. Hearings are called one by one and cases are disposed off in 20 minutes. (At check-in counters at hearing venues, probably on the instructions on their superiors, tribunal staff provide time estimates of 20 minutes for each hearing and things look quite grim for appellants.) Judges are brutal. They misunderstand the burden of proof and from what one can see it will be up to appellants to prove everything. The state has it real cush that way; smelly and lethargic HOPOS sit in tribunals hour after hour regurgitating the same nonsensical trash taught to them by “senior” home office personnel and sedentary immigration judges keep lapping it up like gravy without giving any thought to what their supposedly independent job really entails. No parallel exists to it in South Asia: our courts treat white claimants like royalty; perhaps it is about time they started to behave like the British courts which rarely dispense justice to foreigners. To borrow a phrase coined by Lord Steyn – which his Lordship reserved for the atrocities of Guantánamo Bay – justice for refugees and immigrants in the UK is becoming perilously close to a “legal black hole”.

But now things need to reformed even further. Ministers like the home secretary and some members of the judiciary are united in the drive to discipline human rights lawyers. The common thread running through their approach is that it renders immigration and asylum claimants and their lawyers to be part of the same disease for which there is no apparent cure, indeed lawyers are part of the problem and it is now up to them to filter out any “bad” claims so that the state is not unnecessarily burdened. However, this expectation is neither here nor there and the conundrum is amply illustrated by the fact that law firms that have already been referred to the regulator – for their avarice, incompetence and malevolence – are still inexplicably presenting themselves as judicial review “experts” on international television. The victims of such venality, the immigrants trying to stay on in the UK at any cost who are in fact not in detention, will often report that they feel that “we are in prison” (“hum gaed main hain” they often say in Hindi, Urdu). If that is the case, then they should see eye-to-eye with Theresa May; they really should go home and save everyone tons of grief, but of course as is well-known they simply refuse to do so!

In spite of all these bad facts, overall, the judicial crusade spearheaded by Sir John Thomas and the political crusade of the home secretary amount to the same thing. But it is comforting to learn that hundreds of senior members of the legal profession and leading judicial figureheads – including Lord Philips, Lord Steyn, Lord Woolf, Lord Walker and Sir Nicholas Bratza – have strongly criticised the UK’s intake of Syrian refugees as “too low, too slow and too narrow” and “deeply inadequate”; they jointly appealed to the government not to wander into the darkness and take its fair share of refugees and suspend the Dublin system.

Like in the home office, cases are “pre-judged” in the tribunals and as I have explained in the past most non-white security officials guarding hearing centres will actively make jokes about how incredibly racist the legal system is; these “foreign” guards feel as if they have a duty to record in their conversations with others the rampant judicial racism they see on a daily basis. Conversely, in South Asian courts, the court officials and security personnel tend to make small talk about judicial corruption rather than judicial racism.

Ultimately it is not “impossible to build a cohesive society” and the fact that Nadiya Hussain – a hijab clad Muslim woman who considers life to be a piece of cake – can win the Great British Bake Off proves that not all white judges in the UK are racist and that only immigration judges are. I was taught to renounce religion even more than private property but even to me Amanda Platell’s belief that a “chocolate mosque” rather than a chocolate carousel would have catapulted Flora Shedden to victory seems to be unnecessary attack on Muslims at a time when race relations in the UK are at a low-point. Anyhow, Nadiya Hussain’s humble response to shy away from negativity is enough to make Allah and Mohammed attractive to any godless fiend.

As I have said, British claimants – who say that they have been “aggrieved” on human rights grounds – in Pakistani courts have it a lot easier than immigrants in British courts. It is quite disconcerting because every courtesy is given to young, hail and hearty British litigants whereas no respect is given to elderly and sick foreign people in British immigration courts. They are treated in a sub-human way. Yet, rather than tidying things up at home and putting their own house in order, British immigration grandees  prefer to talk about the persecution of Ahmadis and Christians in Pakistan. Where would the great British human rights lobby be if states such as Pakistan did not persecute? It would surely be the end of a lot of people’s bread and butter right here in London: despite winning a deluge of plaudits in wide-ranging circles, most British human rights lawyers are haughty individuals who are up for sale but big themselves up as champions of democracy nonetheless. For all we know, they may even be worse than the British government. In any event, a refugee country from its inception, Pakistan is more charitable than the UK in accommodating refugees and UNHCR explains:

Pakistan hosts almost 1.5 million registered Afghan refugees – still the largest protracted refugee population globally.

British judges are generally pretty ruthless people. Their consumption of food is subsidised at taxpayers’ expense and they are paid hefty sums of money for manifesting prejudice. They seem to enjoy indulging in xenophobia and many of them may even start to suffer from high blood pressure and get red in the face upon hearing the name of the Human Rights Act 1998.

The immigration tribunal is run like a mafia. Government representatives and judicial figures are well paid. But their output is completely atrocious; it is such poor quality that, on balance, even orders written by the rent controllers and civil judges in Karachi look superior. Mrs May’s reckless political statements will only make the judges in Sheldon Court more racist. She really should visit there one day; in fact she’d just love just about any hearing venue in the country because immigration judges really do play judge, jury and executioner in implementing the new system she has created. What’s going on is totally up her street.

In the hearing in Saiqa Bibi and Saffna Abdulla Mohammed Ali’s cases in the Supreme Court, concerning the legality of the pre-entry English language tests, Lord Neuberger (President) understandably stressed that allowing the appellants to encroach on court time allocated to the home office was offensive to the “mellowness” of proceedings; I do not say this to mock his Lordship but it sure would be nice if someone introduced a mechanism which instilled such etiquette in the third-rate immigration judiciary which operates in a distinctly unmellow fashion.

In a recent polemical speech, Sir John Thomas of Cwmgiedd came out all guns blazing against the new court fees (the brainchild of former justice secretary Chris Grayling) and argued that the criminal courts charge (of up to £1,200) that came into force in April may encourage innocent individuals to plead guilty because of costs (which his Lordship wants fixed at a “modest” level so that access to justice is not impeded). Sir John found the predicament to be against the principles enshrined in Magna Carta. It is hard to disagree with him: he was probably also right about his aggressive stance against bad immigration lawyers in R (Hamid) v SSHD [2012] EWHC 3070 (Admin) but he should take on board that most of the third-rate judges in the First-tier Tribunal are equivalent to the people he was chastising in that judgment – there are some very atrocious tribunal judges working in the system who are clearly emboldened in their crusade against foreigners in light of May’s inflammatory statements. So the question arises, what, if anything, do his Lordship and the senior judiciary propose to do to set the record straight? How do they propose to bring order to the Galaxy? With the greatest of respect to Sir John Thomas, whether intentional or otherwise, in distinction to his take on the new court fees his personal contribution in stifling the rule of human rights law is quite significant.

Although arguably justified in the circumstances of that case, his aggressive judgment in Hamid and other rulings that followed in its aftermath have had a trickle down effect. Coupled with the home secretary’s attacks, such precedents have emboldened xenophobic elements in the judiciary even further and third-rate immigration judges are top-dogging their judicial positions like never before and are totally leading the way in conducting the crusade against foreigners. By way of participant observation, it is the type of thing that at times makes the kleptocratic Afro-Asian model of the state look more merciful than the benevolent western liberal democracy.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Access to Justice, Appeals, Article 8, Court of Appeal, ECHR, Immigration Bill 2015, Immigration Rules, Judges, Judicial Review, UKSC, Women and tagged , , , , . Bookmark the permalink.

6 Responses to Theresa May’s New Crusade

  1. A Salter says:

    After such a devastating critique of not just the Home Secretary but of Britain I am left wondering why you live here rather than in Pakistan.

  2. mkp says:

    If you really must know, I am not really living “here” any longer. It’s just too racist for me these days! I’d prefer to be mistreated in my own country.

  3. mkp says:

    Much better future prospects in primitive Pakistan. “Here” it’s the local folks who get all the goodies. I suppose it’s like that everywhere.

  4. mkp says:

    It’s interesting that you’re inviting me to go back to Pakistan … Don’t worry. That’s what I will do. One more migrant might sink the UK, I know …

  5. mkp says:

    Another answer is that I lived “here” because the Home Office could not bully me and remove me like they do people who can’t read and write properly and are also represented by illiterates. I hope you’re not accusing me of “stealing” from the UK by merely having been here? I only came here as a student. That is all.

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