He's Nuggeting Deported

Why human rights law destroys good governance

We favour the visible, the embedded, the personal, the narrated, and the tangible; we scorn the abstract.

-Nassim Taleb

Human rights law is always and everywhere destructive of good governance. There is a simple reason for this: of necessity its application requires the weighing of concrete rights against the abstract public interest, and in the human mind what is concrete almost always trumps more abstract concerns. But good governance is all about abstract concerns, because its only proper focus is, precisely, what is in the public interest. This places human rights law and good governance on a collision course, with disastrous consequences.

A fantastic illustration of this problem comes in the form of the latest, and perhaps final, iteration of the now infamous ‘chicken nuggets’ case that was much in the news last year here in Britain. This was widely reported as being a case before the Immigration and Asylum Chamber of the First-Tier Tribunal in which an Albanian criminal, Klevis Disha, who was settled in the UK, initially successfully fought deportation on the grounds that his son didn’t like the chicken nuggets available overseas.

There was considerable controversy over whether the son’s taste for chicken nuggets was really the dispositive issue, with reporting on the judgment varying considerably depending on the outlet in question. What is for sure is that the Upper Tribunal, which heard the Home Secretary’s appeal against the First-Tier Tribunal’s decision on 17th December 2024, found that distaste for Albanian chicken nuggets had indeed been the only reason given as to why it would be ‘unduly harsh’ on the son for Disha to be deported. (We will come to the importance of the phrase ‘unduly harsh’ in due course.) The reasoning had apparently been that the son had certain complex needs that made him reliant on his father, and since, owing to said chicken nuggets issue, he could not accompany his father to Albania if the latter was deported, it followed ipso facto that Disha had to remain in the country.

Supporters of the Human Rights Act 1998 were quick to point out that the Upper Tribunal overturned the First-Tier Tribunal’s decision in the end. But, it turns out (one should never underestimate the craziness of our tribunal system; seriously, don’t get me started) all this meant was the case was reheard by the First-Tier Tribunal again with a different judge. And, lo and behold, about a week ago that Tribunal issued a fresh judgment in which it again found that, of course, Disha could remain in the country. Although this time all mention of chicken nuggets was studiously avoided.

The facts of the case are not complicated. Disha is an Albanian man who had entered the country illegally and obtained citizenship by deception. He was convicted of an offence connected with handling the proceeds of crime, and sentenced to two years in prison - apparently back in 2017.

According to ss. 177A-177C of the Nationality, Immigration and Asylum Act 2002 (as amended in 2014) a ‘foreign criminal’, meaning a foreign national who has been convicted of a criminal offence and sentenced to a period of imprisonment of 12 months or more, is automatically to be deported. And Disha therefore would ordinarily have therefore faced deportation. However, the requirement to deport does not apply where, amongst other things, said foreign criminal ‘has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child’ and the effect of his deportation would be ‘unduly harsh’ on said partner or child.

This exception exists to keep the Nationality, Immigration and Asylum Act consonant with the Human Rights Act 1998 (HRA), which gives the rights enumerated in the European Convention on Human Rights (ECHR) effect in UK law. Article 8 of the Act concerns the right to a private and family life, you see, and deporting foreign criminals may impact on the right to a family life of family members who also live in the country and may indeed be British citizens.

Ever since the HRA was enacted foreign criminals have been using it to frustrate deportations - the most infamous case perhaps being ‘catgate’, in which a Bolivian thief successfully fought removal after overstaying his visa on the grounds that it would violate his right to a family life, partly on the basis that he and his partner kept a pet cat.

It was partly in response to this that the Tories (yeah, yeah, okay, the Coalition government) in 2014 legislated an amendment to the Nationality, Immigration and Asylum Act 2002 which aimed to make it more difficult for Article 8 to be used in this way. This was when Theresa May was Home Secretary and widely believed to be competent; her idea was that by inserting the requirement for it to be ‘unduly harsh’ on the family member of a foreign criminal to deport said criminal, cases like ‘catgate’ would not materialise. ‘Unduly harsh’ was supposed to set a high bar; it was supposed to only cover cases where clemency might be thought warranted where (in the words of the Supreme Court in HA (Iraq) [2022] UKSC 22) the result of the criminal’s deportation would be ‘something severe or bleak’ for the family member in question.

This conjures to mind a situation in which a partner is in palliative care or perhaps where the foreign criminal in question is literally the only caregiver of, say, a disabled child, and deportation would mean that said family member would have to accompany the criminal to a very dangerous or poverty-stricken home country. But of course in practice it is used in a targeted way to allow people to remain in the country on grounds that, by any fair reading, are tendentious; not a great deal has actually changed from the days of catgate at all.

Disha’s case can be described as borderline. He could on the face of it argue that he had a ‘genuine and subsisting parental relationship with a qualifying child’ and that it would ‘unduly harsh’ on said child if he was sent back to Albania, but of course this hinged on what was meant by the words ‘unduly harsh’. It cannot be the case that it is always ‘unduly harsh’ on a child to deport his or her parent, because then the provision in question would be rendered otiose. It can only be ‘unduly harsh’ if there is some special circumstance making it so. The special circumstance in C’s case was that he ‘has difficulties’ - meaning, it seems, that he is suspected to be autistic. And the way the argument played out is illustrative.

Disha was/is in a long-term partnership with a woman, P, with whom he has two children, B and C - with C being the child (about 11 years old) with the aversion to Albanian chicken nuggets. And in making her decision the judge relied very heavily - indeed, almost exclusively - on a report into the family’s circumstances of a person who is throughout referred to as ‘RX’. This is an abbreviation which is not explained but presumably refers to a reporting expert, most likely a child psychologist or similar.

RX had visited the family and found that C had various issues, being ‘not good with change or spontaneity’ and being on the Special Educational Need register with an Individualised Education Program (meaning, basically, that he is in a normal mainstream school but is taught in a different way to the other children). RX also reported that, according to C’s school, he ‘struggles expressing’ himself and ‘will become very defiant and angry’; ‘struggles to understand social situations’; has ‘sensory sensitivities’; has ‘possible social communication issues’; and so on. He also, in the only nod to chicken nuggets that I can find in the judgment, was said to have a ‘limited diet’.

The SENCo (Special Educational Needs Coordinator) at the local school gave a detailed report to RX, and described a ‘long process over the years’ of ‘unpick[ing]’ C’s ‘anxieties and difficulties with emotional dysregulation [sic]’. And RX also investigated the family environment, finding that ‘they have moved on from a period…when [C’s] crying, shouting and being in distress’ was a ‘constant state’, to one of ‘consistent management’ of behaviour. And RX also found that C ‘found [Disha’s] voice and/or approach less distressing’ than that of his mother, P, resulting in Disha ‘taking the lead’.

What also appears to have been in the expert materials produced by Disha’s lawyer was evidence that in Albania there was ‘a lack of understanding and support from society for children with autism and their family [sic]’. There were clinical services and other means of support but demand exceeded capacity. (The judge did not observe, though she might have done, that C had been on a waiting list for assessment in this country for a long period of time.) And while C did visit Albania once a year, in advance of each trip he needed a special plan of daily activities so that he would know what was coming, and did not appear to speak Albanian.

Taken in the round, all of this was enough for the judge to come to the conclusion that ‘it is in C’s best interests to remain with [Disha], P and B in the United Kingdom’, in the ‘only country [he] knows’ and with the ‘invaluable support received so far from the school’ and awaiting his autism assessment.

And it followed almost inevitably that it would be ‘unduly harsh’ to either deport C alongside Disha to Albania, or to deport Disha alone and leave C behind with P and B (i.e., his mother and sibling). It would be ‘unduly harsh’ for C to end up in Albania, where there are ‘gaps in necessary services’, and owing to it being a country with which he was not very familiar. And in the alternative scenario in which only Disha was deported, it would be a ‘severe and traumatic loss’ to separate C from his father, exacerbated by the likely impact on his mother, P, who has a certain unspecified ‘mental health history’. It would be ‘excessively severe or bleak’ for C to experience either of these outcomes, and therefore the only realistic prospect was for Disha to remain in the UK.

Now, you might be reading all this and thinking to yourself, as I almost invariably think when reading judgments of this type, that while you feel sorry for C, as one undoubtedly should, you are unsure why it is that nowhere in the judgment is the obvious point made that the entire problem only ever arose because Disha was involved in what was, quite plainly, organised crime. (He was apparently in possession of £250,000 of criminal proceeds when arrested.) And he had done this when C was pretty young - by my calculations about two or three years old. Any ‘undue harshness’ for C associated with deporting Disha was therefore really the result of his father’s own actions; put bluntly, Disha should perhaps have reflected on the potential impact of his criminal conduct on his loved ones before engaging in it.

But, be that as it may, one would have to have a heart of stone not to feel sympathy with the poor kid, who had himself done absolutely nothing wrong; the sins of the father should not be laid at the feet of the son in any event, but especially when the son is himself inadequately equipped to grapple with the results. And therefore it is easy to understand why the judge in the case ultimately came to the decision which she did; she was not, like a jury in a criminal case, finding guilt or innocence in view of a clearly defined rule. She was rather making a finding in respect of a very vaguely defined and nebulous concept of ‘undue harshness’ - about which it was possible to make all manner of value judgements and hold all manner of opinions.

And this put her almost inescapably in the invidious position of having to decide the case more or less by giving her opinion at the level of gut instinct. She could dress this up in technical language, but the question really just boiled down to how much sympathy she felt for C based on the facts available to her. And we all know, if we are honest with ourselves, how difficult it would be to be placed in such a decision - being faced with a requirement to lick one’s finger and stick it up in the air to issue a reading on what would be ‘unduly harsh’ to an 11 year old boy with presumed severe autism in respect of the deportation of his father.

This problem, though, is ineluctable in human rights cases, precisely because of the way in which they are framed. Human rights cases of necessity require the judge to juxtapose two interests: the interest of the claimant (whose rights are purported to have been infringed) and the interest of the public (in whose name the rights in question are being purportedly infringed). The question for the judge is always along the lines of: do we protect the interests of this boy, this boy right in front of you, whose face you can see and whose entire life story is documented in careful detail the documents on your desk, or do we protect the general public interest, which is to ensure that foreign criminals are not permitted to remain in the country, and to deter foreign citizens from committing crime?

This is different from a criminal law case, where the public interest has already been channelled into the law itself. When it comes to the application of the criminal law, and offence will have been legislated (let us say, the offence of murder) and through this process Parliament will have, in effect, made plain that it is always in the public interest for somebody guilty of murder to be punished. The judge does not get to choose, once the jury has made its finding, that it would be ‘unduly harsh’ on X’s autistic son to send X to prison for murder.

In the human rights case, rather, the judge is placed in the position purely of weighing the interests in question: the concrete right of the individual and the abstract interests of public policy. And it is not really a great surprise when it turns out that judges tend to be drawn to protecting the concrete right of the individual at the expense of the public interest, because human beings are so naturally drawn to feel sympathy for a living, breathing person. It is extremely difficult, and requires great moral fortitude, to be able to say ‘I am willing to make this innocent 11 year old boy’s life, which is already pretty awful, much worse, in order to realise abstract public policy goals’. Judges, given the opportunity by the statutory language, tend naturally to do the opposite.

What is most important to emphasise in the ‘chicken nuggets’ case is that it is really indefensible for thing to have turned out the way they have. And we should be clear about where the responsibility lies. While it is useful to both blame, and name-and-shame, judges for the way they have used the HRA to achieve public policy goals - and while I do not shy away from doing this where necessary - politicians should not escape responsibility for having outsourced moral and political reasoning to the judiciary in the way that they have. It is for Parliament to legislate in the public interest, and to do so in such a way as to ensure that the result is clear rules that do not require judicial enforcement via gut ‘feels’.

What is, indisputably, in the public interest is that foreign residents and visitors should be deterred from committing crime by the threat of deportation. And this is what the law should reflect. It should not be in the hands of judges to weigh up when the law should work towards this outcome and when it should not, and it should be for politicians to accept communal responsibility for harsh outcomes where they exist, by pointing to their legitimate role as elected lawmakers. That they have shirked this responsibility through human rights law is ultimately at the root of our difficulties, and it is therefore their responsibility to perform the necessary uprooting.