The European Court of Justice (ECJ) is “preventing” the UK from deporting someone with a terrorist criminal conviction – at least that’s what Andrew Neil claimed last Sunday*. The top BBC broadcaster was echoing what others from MPs to the Daily Mail have said over recent days. Neil went on to ask if such a situation didn’t represent a “serious intrusion” on British sovereignty.
Neil was referring to a recent case concerning attempts to deport a Moroccan woman from the UK. The woman is a convicted criminal – but also the mother of a young child. The case has not yet been decided, but advocate general Maciej Szpunar has given his opinion.
It is one sentence of the advocate general’s opinion that been most seized upon: where he says that deportation of a parent would “in principle” be against EU law, on the basis that her child is a British citizen, and she is the sole carer**. But QC Alper Riza argues that this is nothing new: “The protection of children forms part of UK law independently of EU law and this sometimes means allowing a parent to remain.”
In any case, the advocate general – whose opinion the ECJ doesn’t have to accept – does not stop there. In the next sentence of his opinion, he states that, even if there is such a child, the parent’s deportation could still go ahead if there is a “genuine, present and sufficiently serious threat… based on an imperative reason relating to public security”.
Crucially, the advocate general leaves it for the British courts to decide that. But he does acknowledge that her crime was a “serious” one***.
Although the court’s opinion did not identify the defendant, Philip Davies MP has stated in Parliament that she was the daughter-in-law of convicted terrorist Abu Hamza – who attempted to smuggle a SIM card to Hamza while he was in prison.
Assuming the ECJ upholds the advocate general’s opinion, the UK court needs to figure out if there is a risk to public security in this case. But if so, the options are clear. “If someone is dangerous, then that’s the end of it; deportation can still proceed”, says Riza – unless of course there is some reasonable likelihood of torture or inhuman treatment in Morocco, which has not been referred to in this case.
It is now over three years since the defendant was released from prison, and the process is even now not yet over. Nonetheless, as Neil put it, “What people want to know is if we can deport foreign citizens who have terrorist criminal convictions.” InFacts is happy to report that, if UK courts think they are a serious threat, the answer is yes.
Edited by Hugo Dixon
* Go to 7 minute 50 second mark
** Para 179 of the opinion
*** Para 164 of the opinion