The judicial review in the High Court in Birmingham of the Home Office decision not to admit for settlement an Indian citizen, Mr Vali Chapti, aged 57, highlights the Court’s potential opposition to the democratically elected Government on an issue which its Conservative leader specifically fought the last election on, claiming that his government would reduce immigration to “tens of thousands” per annum rather than “hundreds of thousands” (at present).  A key step towards that goal (not opposed by any political party) is to insist that future residents should speak, understand, read and write the English language which Mr Chapti cannot.

Implications of the Courts over-ruling the Government again

Like the recent decision of the High Court in London to allow four Mau Mau men to sue the British government for alleged ill-treatment by the Kenya security forces over 50 years ago (see SFB letter of 12 April 2011 in The Times[1] and Cristine Odone’s article in The Times of 8 April 2011), if the Birmingham branch of the High Court were to over-rule the government and instruct it to admit Mr Chapti, this will be seen as a test case by immigration lawyers and pressure groups, potentially admitting over time tens of thousands, if not hundreds of thousands against as clear an expression of the will of the British people as it is possible to obtain.

One hopes the High Court will hold back from such a move, not only because of its implications for the continued mass immigration, but also because it will strengthen demands to curtail by Act of Parliament our Courts’ ability to interfere with major aspects of government administration (see also post of July 25^th 2008 – Judges and the Law).

Grounds advanced for admission of Mr Chapti: Article 8 of the ECHR

What are the grounds on which this judicial review is being promoted by Mr Chapti’s lawyers?  How come he has any standing at all in British Law?  Mrs Chapti, aged 54, is a naturalised British citizen and has been travelling back and forth to India to see her husband for 15 years.  They have six children.

As may be surmised, the case for overturning the government’s rule rests on the European Convention of Human Rights, Article 8 – the right to respect for private and family life which says:

1          “Everyone has the right to respect for his private and family life, his home and his correspondence.”

2          “There shall be no interference by a public authority with the exercise of this right, except that which is in accordance with the law and is necessary in democratic society in the interests of national security, public safety, economic well-being of the country . . . and for the protection of the rights and freedoms of others” (our italics).

Only the most gross extrapolation of this article would suggest that it gives foreigners the right to come to Britain, as it is clearly framed (in 1950) to apply to citizens of a signatory country already in that country.

Separated spouses can reunite in their country of origin

As has been pointed out many times, separated spouses can re-establish family life in their original countries of residence, in this case India.  The Indian authorities have a long-established policy of welcoming people of Indian descent into their country[2]. There is nothing to stop Mrs Chapti from returning to India with her children.

As with the Mau Mau complainants, and a long list of asylum cases (see the case of Binyam Mohammed posted by Vindex on December 30 2009), Courts are likely to side with the foreign plaintiff against the wishes of the British people, even though Article 8 with its specific safeguards for “the rights and freedoms of others”, gives the Court plenty of scope to uphold the right of the British government to act in accordance with its democratic mandate.

Playing the Race Card

Besides Article 8, the plaintiff’s lawyer in his submission plays the race card saying that the application of the rule would particularly affect people in the Indian subcontinent.  Of course it does because the Indian subcontinent has been overwhelmingly the source of immigrants into this country since 1960.  There are some 1,500 million people in the Indian subcontinent (compared with fewer than 60 million British citizens in the UK and fewer than 4 million in the English-speaking Caribbean).

Britain is tormented by the prospect that even one percent of this vast number should have a judge-endorsed never-ending right to settle in this country.  Does any sane person believe that the framers of the European Convention of Human Rights ever envisaged that it would be called on by the British Courts to support what is becoming in effect a form of ethnic smothering of the only people who fought the two World Wars from beginning to end, precisely to provide the freedoms for the European peoples which are embodied in the Convention?

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[1] “When British and other Allied troops entered Austria as liberators in May 1945 there were estimated to be barely 10,000 Jews left out of the 200,000 at the time of the Anschluss with Germany in 1938.

British Government policy towards Kenya was set out in its famous White Paper of 1923 often referred to as the Devonshire White Paper after the then Colonial Secretary. This stated inter ali that “where the interests of the African conflict with those of the European settlers ” those of the Africans were “paramount”.’ This and subsequent declarations along the same lines caused consternation among the settler community resulting in several protest marches on Government House in Nairobi. 

As custodians of the African interests as well as the Asian and European settlers, it was also the British government’s paramount responsiblity to maintain law and order.  The Mau Mau insurrection, overwhelmingly recruited from the Kikuyu tribe, constituted a very serious disruption to life and limb causing Europeans to go in fear of their lives over several years and costing the lives of many thousands of those other tribes as well as Kikuyu themselves.

Successive Kenya governments have show little disposition to rake over the coals of the Mau Mau emergency, but to move on to build a viable future for all their nearly 40 million people.  The British government and Courts should do the same.”

[2] The Indian Government affirmed this policy at the time of the expulsion of Indian Asians from Kenya in 1967 and Uganda in 1972 – but the vast majority ignored this invitation and insisted on their “rights” as British passport holders to come to Britain, although they had been offered Kenyan or Ugandan citizenship when these countries became independent in 1963.  This “right” was a fiction because a British passport was a travel document – a laissez-passer as it always had been , not a residency permit.  Nonetheless in a familiar capitulation to the immigration lobby in Britain, the British government allowed some 100,000+ dependents of Kenya (1967) and Uganda (1972) Asians to settle in Britain.  All the actual British citizens had to have their 1970’s passports stamped “holder has right of abode in the United Kingdom”, clearly distinguishing rights of abode from just passport holding.  This had the effect of denying people of British descent in various British dependencies, including the Falkland Islands, from coming to Britain for any length of time.  This was rectified, for Falkland Islanders, in 1983.