The paper which appears below under the title “Convicted foreign criminals and the right to family life (2)” was completed on 13 February 2013. It is appropriate to precede it with further comments following the Home Secretary’s article on the subject which appeared in The Mail on Sunday on 17 February. The Home Secretary accuses the judges of disregarding the will of Parliament in failing to implement the provisions of HC 194 (see below for an explanation of HC 194) when considering appeals against deportation by convicted foreign criminals. Her anger appears to have been provoked by three recent decisions of the Upper Tribunal (Immigration and Asylum Chamber), the most recent of which is discussed below. One of her complaints is that “some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been weak”. This appears to be a reference to another case Izuazu  UKUT 45. The way Immigration Rules are made is explained in legal briefing paper 8.63. Under the provisions of section 3(2) of the Immigration Act 1971 they are subject to approval by both Houses of Parliament by the negative resolution procedure. The Rules contained in HC 194 went through this procedure in June 2012 and were debated at some length by the House of Commons. However, the Tribunal in Izuazu made a disparaging and unjustifiable reference to this procedure by saying that it “provided a weak form of Parliamentary scrutiny” (paragraph 49).
See the full Briefing Paper No 8.69