David Barrett and Ben Leach, Telegraph (London), November 19, 2011
Fathering what one official called “a network of children” allows the immigrants to claim their right to a family life will be infringed if they are sent back to their homelands after serving time in prison.
The Home Office’s official recognition that the Human Rights Act is being manipulated in this way will fuel calls for reform of the controversial law.
The Sunday Telegraph has revealed a series of cases where Article 8 of the Act, which protects their “right to private and family life”, has been used by foreign criminals to overturn deportation.
Ministers are under growing pressure to institute reforms.
This weekend Kenneth Clarke, the Justice Secretary, said that a deal is imminent with other European nations to reform the European Court of Human Rights so that it deals only with “serious issues of principle”–although that in itself will not stop foreign criminals exploiting the right to family life.
The Home Office has now stepped up its warnings over the potential to exploit the laws.
Its officials warned a court about the phenomenon of what a judge described as “babyfathers”–a Jamaican slang for absent fathers–as it attempted to deport a criminal who had two children with two different mothers.
In a ruling which appears to offer confirmation that judges are accepting loose relationships as evidence of “family life”, the criminal–jailed for unlawfully wounding a man with a Samurai sword–was allowed to stay in this country because of Article 8.
The court ruled Darryl Byford-Noel, from St Lucia, enjoyed “family life” with his girlfriend and their son, and also said his daughter with another woman should be able to have contact with him.
Home Office representations to the court described how “some men arrange ‘a network of babies’ in order to resist deportation”.
Upper Tribunal Judges Richard McKee and Susan Kebede ruled that the Home Office “suggests that some men arrange a ‘network of babies’ in order to resist deportation, and that the appellant’s having two children will prevent him being a ‘full-time father'”.
But they said the criminal had two chldren in 10 years and said: “That is hardly a ‘network’ of babies arranged by a feckless ‘babyfather’.
“We see no reason why he should not have regular contact with his daughter, while being a full-time father to his son.”
Critics say there is mounting evidence that judges are “gold-plating” the law and going far further than they need to in human rights rulings.
They seized on an admission to MPs last week by the two most senior judges in England and Wales–Lord Phillips of Worth Matravers, the President of the Supreme Court, and Lord Judge, the Lord Chief Justice–that British courts were “ahead” of the European Court of Human Rights in the way they applied the “right to family life”.
Those concerns are highlighted again in a fresh case uncovered by The Sunday Telegraph in which a criminal who had three children by three different mothers within four months of each other was able to avoid being deported because of his “right to family life”.
In November 2009 at Snaresbrook Crown Court Lionel Noel Hibbert, 50, was handed an 18-month jail term for his role in a conspiracy to import 26lbs of cannabis.
Theresa May, the Home Secretary, ordered his deportation to Jamaica in January this year under rules which state that anyone jailed for over a year is automatically deported.
But Hibbert appealed, arguing that his human rights under Article 8 would be infringed if he was sent back to his homeland.
The immigration court heard he came to Britain in 1999 and quickly married, claiming leave to remain as the spouse of a British citizen, although the relationship ended in 2002.
He is now in a long-term relationship with Leone Simpson, a university canteen worker who was his partner in Jamaica and with whom he had had a son, who is now 18.
But in 2001 he had three children by three different women. He had a son in April, a daughter in June, then a daughter by Miss Simpson in August.
He claimed in court that he lived with Miss Simpson and was an involved father to his two children with her, and that all four of his children “got on well together”, with him picking them up from school, doing homework with them and the whole family spending summer holidays together.
The Home Office presented very little evidence to challenge Hibbert’s story and the judge, Senior Immigration Judge Jonathan Perkins, said: “I would like to have had independent evidence about the importance of the appellant in the lives of any of these children. There is every reason to be sceptical of the appellant’s account.
“On his own version of the story he is hardly an enthusiast for traditional family life and he has an incentive to exaggerate the evidence.”
But the judge went on: “The public interest in preserving the relationship between a father and his children is strong.
“His removal would be a disproportionate interference with the rights of his daughter with Ms Simpson and that is sufficient reason for me to allow the appeal.
“It would also be a disproportionate interference with the rights of the other three children.”
Last night one of his children’s mothers said Hibbert still had occasional contact with the child but added: “I was very upset to hear he’s been allowed to stay here.
“They should have sent him home. That was what I was wishing for, but my wish did not come true.”
Hibbert said last night: “I love my children. They are around here all the time. I live with two of them.”
Last month this newspaper revealed a similar case in which a violent Jamaican drug dealer, Gary Ellis, told a court he had a stable family life when in fact his ex-girlfriend said they split up four years ago and had since had almost no contact with their child.
It also emerged this week that a convicted sex attacker raped and violently molested two young girls while he fought deportation on human rights grounds. William Danga, 39, launched a legal battle using “family rights” after being released from a 10 year jail term for rape, then abused his first victim again and molested a seven-year-old.
A Home Office spokeswoman said: “We will always challenge suspect Article 8 claims, including where evidence suggests that a foreign national is seeking to enhance their claim to family life by building up a network of children.
“We rigorously defended our decision to deport these individuals and are disappointed by the court’s decisions.
“It is unacceptable that the Human Rights Act is being used to prevent removal of foreign criminals and immigration offenders.
“This is why we will change the immigration rules to prevent those abuses and ensure a better balance with human rights and the wider public interest.”