Catgate unhinged

Apparently Australia isn’t the only country where cynical politicians demonise asylum seekers and/or illegal immigrants to curry favour with the redneck component of the electorate.   A furore has erupted in Britain over claims by the Tory Home Secretary Theresa May that an illegal immigrant avoided deportation because he and his British partner had a pet cat.  The story has predictably been christened “catgate”.  May recounted the grossly distorted story as a pretext to argue for Britain to repeal the Human Rights Act 1998 (UK) and replace it with a bill of rights more to the Conservatives’ liking.  Shades of the recent posturing by the Baillieu government in Victoria about that State’s Charter of Human Rights and Responsibilities Act.

In fact the story is over 2 years old and the legal and factual reality bears little resemblance to Theresa May’s claims.  As news stories explained at the time (albeit still with a snarky spin):

The Asylum and Immigration Tribunal ruled that sending the Bolivian man back to his homeland would breach his human rights because he was entitled to a “private and family life”, and joint ownership of a pet was evidence that he was fully settled in this country.  …

Barry O’Leary, solicitor for the Bolivian, said that the court was told that man and his girlfriend had purchased the animal together, and it was therefore “one detail among many” that they were in a committed relationship.

“As part of the application and as part of the appeal, the couple gave detailed statements of the life they had built together in the UK to show the genuine nature and duration of their relationship,” he said.

“One detail provided, among many, was that they had owned a cat together for some time.”

There’s nothing even slightly unusual about this case, nor does it appear to have very much to do with the Human Rights Act as such, although it was in part grounded in the right to respect for private and family life under Article 8 of the European Convention on Human Rights (which the HRA enshrines).  Like Britain, Australian migration law also places considerable stress on the genuineness and duration of a spousal relationship in considering applications for a relevant class of visa (e.g. spouse or family reunion visas).

It appears that the case also turned, at least at earlier stages, on the Home Office’s failure to apply its own policy to the illegal migrant’s case:

Mr O’Leary added that his client originally brought the case because he should have benefited from a Home Office policy on unmarried partners which gives credit to couples who have been together more than two years. The Bolivian had been with his partner for four years, he said.

“It was made clear by the initial judge and then by Senior Immigration Judge Gleeson that the appellant should benefit from that policy and be granted the right to remain,” he said.

“Furthermore, it was accepted by the Home Office representative at the hearing before Judge Gleeson that the policy should apply and any other errors in the initial decision by the judge, including too much detail on the cat, were immaterial.”

He added: “This case was won because the Home Office had a policy which they did not initially apply but later, through their representative, they accepted should have been applied.”

A spokesman from the Judicial Communications Office said: “This was a case in which the Home Office conceded that they had mistakenly failed to apply their own policy for dealing with unmarried partners of people settled in the UK.”

UK law has accepted at least since the early 1980s that failure to apply relevant policy in a particular case is a denial of natural justice which entitles the aggrieved person at least to an opportunity to be heard. In Attorney-General of Hong Kong v Ng Yuen-Shiu Lord Fraser explained ‘legitimate expectations’ as justifiably arising on the footing that ‘when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty’.

The same principle has long been accepted in Australia as well e.g. Haoucher v Minister for Immigration and Ethnic Affairs.  It should hardly be controversial that the rule of law requires consistency and procedural fairness in decision-making i.e. that like cases generally be treated alike, and that government agencies should not arbitrarily apply their own publicly announced general policies only when they feel like it.

In other words this case had very little to do with a cat, although one amusing (and much less defendable) aspect of the case is that apparently the name of the cat was suppressed by Justice Gleeson in the Asylum and Immigration Tribunal  in the interest of its right to privacy! (although I haven’t checked out the accuracy of that claim).

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