Learco Chindamo and the law

I come back from my summer holiday to find there’s been a lot of sound and fury over the last couple of days about the decision of the Asylum and Immigration Tribunal that Learco Chindamo, the murderer of Philip Lawrence, cannot be expelled from the UK.

The first point to make is that Chindamo isn’t necessarily about to be released from prison: he’s serving a life sentence and is eligible for release in 2008, after serving 12 years – if the Parole Board thinks it’d be safe. Chindamo’s lawyers have argued that the Parole Board has been very impressed by him and that reports on him have been “very positive”; well, if that’s right, I suppose there is a reasonable chance of his being released soon. Which I guess is why the maglie calcio poco prezzo Home Office have now made a decision to expel him.

David Cameron and others have blamed the Human Rights Act for the decision, but as has been fairly widely reported, that’s a complete red herring. Although the Tribunal’s decision isn’t yet available online, it’s clear that the Tribunal could, and probably did, reach this decision without reference to the Human Rights Act at all; and that it would come to the same conclusion even if the Act were repealed.

That’s because the legislation that’s really in play here is Council Directive 2004/38 on the right of EU citizens to move and reside freely in EU territory – particularly articles 27 and 28, which lay down the rules at issue in this case. Article 27 makes clear Chindamo, an Italian citizen, can only be expelled if his conduct gives rise to a genuine, present and serious risk to society. The mere fact of his murder conviction is not enough; nor is the potential deterrent effect on other offenders. Article 28.1 makes clear that before expelling him, UK authorities must take into consideration how long he has lived here, his age, his family situation, how integrated he is in the UK and what links he has to his country of origin.

So if the evidence shows Chindamo is a reformed character and poses little risk on the basis of his conduct in prison, it’s difficult to see how the Tribunal could have upheld the Home Office’s decision. If it’s to appeal successfully, the Home Office will have to persuade the courts that Chindamo really is a genuine, present and serious risk.

So David Cameron’s misleading the public by suggesting that this case would be at all affected by a repeal of the Human Rights Act. Nor can I understand Jack Straw’s contention that the Tribunal has made a mistake in its “interpretation” of the Directive. I suppose when we see the decision itself we’ll know whether the Tribunal saw itself as ruling against the Home Office’s interpretation; but more likely, what Straw means is that the Tribunal disagreed with his view of the facts. Because what this case is really all about is simply the factual question whether Chindamo is so dangerous that the need to expel him outweighs all concern about his integration in the UK, and so on.

If you agree with those who think the AIT’s decision is an outrage, the interesting question to consider is how the UK could possibly achieve a situation in which it could automatically deport people like Chindamo on their release. I suppose the Home Office could argue that convicted murderers fall into a special category of their own and that the Directive can be interpreted as allowing http://www.nflauthenticjersey.com/ national authorities to determine that they are automatically a “genuine, present and serious” risk . They might even manage to get that question of interpretation referred to the European court of Justice under article 234 of the EC treaty. But I doubt they’d win – that seems flatly contrary to the terms of article 27. I say that because cases like C-482/01 and C-493/01 Orfanopolous and Oliveri show that national legislation providing for automatic expulsion, or even for a presumption of explusion, is contrary to the Directive.

All of which is especially frustrating since Germany seems to have found a way round it. There’s been a long-running dispute between Germany and Italy about Germany’s policy of deporting Italian offenders more or less automatically; the Oliveri case was as example of that. In fact, Germany did used to deport foreign prisoners more or less automatically, regardless of risk or personal circumstances, as a number of UK citizens convicted in Germany can testify. But as illustrated in case C-441/02, Commission v Germany, the legislation Germany has brought in to satisfy Oliveri is so confusing that it’s easy for courts, in for instance Maglie Calcio Baden-Wuerttemberg, to develop a culture of something like near-automatic or presumptive explusion; yet difficult for the European Courts to say the law is inadequate. And although the Commission and Italy have pointed to a number of examples of dodgy decisions, they’ve been unable to show a consistent administrative practice in breach of the Directive.

So, legislation won’t work for the government, unless the courts develop a conveniently helpful culture; and even then, you need luck if you’re going to get away with it.

The only real solution is to renegotiate the Directive; though there’s not much chance of that, given that it was only agreed in 2004 and implemented last year. Or else leave the EU, of course.