By Charles Kelly
Malaysian criminal wins Article 8 Human Rights appeal claiming she would be ’shamed’ if she was deported
In a perfect story for the Daily Mail, a convicted Malaysian criminal has won an ‘Article 8’ human rights appeal avoiding automatic deportation partly because she would be stigmatised in her homeland for her offences. Malaysian citizen Ai Vee Ong, 34, was jailed for four years after being caught employing 20 illegal immigrants at two restaurants she managed. She had also laundered money and conspired to sell counterfeit goods.
Foreign criminals are normally deported after serving their sentence; however, Ong lodged an appeal against automatic deportation on her release, which was rejected in the First Tier Tribunal.
Exercising her legal right, she challenged the dismissal of her first ‘Article 8 family life’ human rights appeal in the Upper Tribunal [Immigration and Asylum Chamber] which overturned the decision at a hearing in September at Bradford, West Yorkshire.
She argued at the tribunal that being forced to return to Malaysia would be against her ‘right to a private or family life’, as she would be disowned by her relatives if they knew about her conviction. She added that she faced being shunned by the wider ‘community’ in her country.
Ong, of Ipswich, Suffolk, is now allowed to remain in the UK with her fiancé, Chee Seng Liew, and they plan to set up another takeaway restaurant.
The Upper Tribunal is UK’s highest judicial authority for immigration matters.
Immigration Judge Deborah Taylor stated in her judgment this month that deportation would be ‘disproportionate’.
She added: ‘I accept the evidence that the couple would find it very difficult in reality to go back to Malaysia with the stigma of being a criminal and the problems which [Mr Liew] would have establishing a business there, and becoming accepted in the Chinese community there when his wife is a convicted criminal.’
Her MP for Ipswich, Ben Gummer, said the decision an ‘outrage’ and will raising the issue with Home Secretary Theresa May.
‘It shows what a mess the immigration system has become and how tough it is going to be to get it right again,’ he said.
‘It also provides another good example of why the Human Rights Act and the European Convention on Human Rights, on which Ms Ong has relied, has become such a corrosive influence on our judicial system’.
Ai Vee Ong came to the UK in 2001 and was later granted leave to remain. She was Company Secretary and Director of a business behind the Temptation Chinese Buffet restaurant in Ipswich, which was raided by the UK Border Agency in 2007.
At £10,000 per illegal worker, the civil penalty fines for 20 deliberately employed people amounts to £200,000.
Border Immigration officials found 16 Chinese and Malaysian illegal immigrants working there plus four more at the nearby Lucky Star takeaway.
Further investigations revealed Ong had kept two sets of accounts, one for HMRC and another with the true takings.
Ong was also involved in the sale of counterfeit goods at two shops in Ipswich and Colchester, Essex.
She was convicted at Ipswich Crown Court in April 2010 of conspiring to facilitate a breach of immigration law, conspiring to sell counterfeit goods and converting criminal property.
The owners of the restaurant, Phing Woon Pun, 49, his wife and two children were also jailed for a total of 15-and-a-half years.
Judge Peter Thompson said: ‘Not one of you can say you only committed a minor breach of the law.’
Article 8 of the Human Rights Act covers the right to respect for private or family life and is widely criticised in the press for being exploited by criminals in order to escape deportation by arguing they had a husband/wife or partner and children.
However, article 8 has been extended by judges to include a rapist with a ‘social life’ and a killer who lived with his parents.
There have been several other high profile article 8 human rights appeal cases for visa overstayers, such as the student (who also had a criminal record) who was allowed to avoid removal because he and his partner had a private life and owned a cat.
The 14 year long stay concession has gone – you now need 20 years or 10 years legal stay!
Immigration Adviser Cynthia Barker, of Bison UK, said:
“Human rights appeals are not as straightforward and easy to win as the papers would have us believe. You need grounds and legal arguments for your appeal to succeed.
“Human rights appeals are also used by overstayers who want to regularise their stay in the UK.
“Many overstayers are holding out in the hope of qualifying for Indefinite Leave to Remain (ILR) or permanent residence under the ‘14 year long stay rule’, which no longer applies following recent changes to the Immigration Rules on 9 July 2012. You now need 20 years!
“As in the above case, you may still have grounds to stay under human rights or Article 8 rules – right to a private or family life.”
“Remember also that under the 1981 British Nationality Act, children who were born in the UK and have lived in the UK for more than 10 years (even if the parents were here illegally) can apply for British Citizenship.
“Having a British child or a child who has lived in the UK for more than 5 years will help your appeal to overturn a refusal and reach your ultimate goal of gaining Indefinite Leave to Remain (ILR) or UK naturalisation.”
The Mail claims that Prime Minister David Cameron dropped a pre-election pledge while in Opposition to change immigration rules so that prisoners from outside the EU – even those serving short jail terms – would be automatically deported.
The Government, which is a coalition between the Conservatives and Lib Dems, later conceded it was only ‘tightening’ the rules so that drug dealers serving less than a year are automatically deported.
Lib Dem leader Nick Clegg has pledged that the Human Rights Act would be abolished over his dead body. Many in the conservative party would gladly accept those terms!
European Economic Area (EEA) nationals are deported if they have served a custodial sentence of 12 months or more for drugs, violence or sex crimes and two years or more for other offences.
Earlier this month, a convicted Romanian gypsy campaigner, who was jailed for masterminding a £10million benefits fraud racket, has been allowed to stay in Britain following a successful human rights appeal before a senior immigration judge.
In October 2011, an official report revealed almost 4,000 foreign criminals who should have been deported were free on the streets of Britain because of human rights law and red tape.
There is a battle going on between judges, who want to uphold human rights, and the Home Office which wants to dictate ‘terms’ under which basic rights should apply.
Ironically, migrants are daily being refused indefinite leave or marriage visas because of petty criminal offences or civil judgments (non criminal).
A CCJ or conviction for not paying your fare on the train could come back to haunt you when making an immigration application for FLR, ILR or marriage – especially if they are not disclosed on the application.
The press blame ‘soft judges’ for human rights judgments based on article 8, right to a private or family life, but fail to mention that they are merely upholding and interpreting the law which applies equally to British citizens (for instance in the recent Gary McKinnon appeal) and foreigners even if they have committed a crime. They take a few lines or one point of the judgment out of context and claim that this is the sole reason for allowing the appeal, as in the ‘pet cat’ case or in this ’shame’ case.
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