A foreign nurse who groped a pregnant patient can stay in Britain after the most senior immigration judge threw out Government attempts to stop criminals exploiting human rights in to jeopardy.
By Tom Whitehead, Security Editor, Daily Telegraph
Mr Justice Blake warned moves to rebalance deportation decisions to make it harder for foreign criminals to hide behind the right to family life will not be possible.
Theresa May, the Home Secretary, has proposed that for those jailed for at least a year the public interest in deporting them must outweigh any right to family life, which should only be applied in exceptional circumstances.
But Mr Justice Blake, president of the immigration and asylum Upper Tribunal, the highest immigration court, ruled that the right to family life is an exception in itself and there is “no justification” for any other position.
He made the general comments as he ruled former Indian nurse Milind Sanade can stay because he has a wife and two children here.
He made the decision even though he accepted Mr Sanade’s residence in the UK “has not been particularly long” or that relocation of his family to India would be “practically impossible”.
Mr Sanade was jailed for a year in 2010 for indecent assault on a patient at a hospital in Essex and later struck off as a nurse.
He was working as a nurse as groped a pregnant woman’s breasts after she had come in concerned she was suffering from breast cancer.
He asked her “does this feel good?”
He then falsified the patient’s medical records to suggest she was emotionally unstable to undermine any possible complaint she made.
It also later emerged he had been cautioned in 2008 for assaulting an elderly patient in his care.
At the time of the sexual assault, Mr Sanade’s wife was pregnant herself with their second child.
Mr Sanade first arrived in the UK in 2003 and married his wife, who was also Indian, in 2005 before having two children together.
He was granted indefinite leave to remain in 2009 and Mrs Sanade and the two children are all now British citizens.
Following his conviction he faced deportation but yesterday won on appeal after Mr Justice Blake, ruled he did not pose a risk and his deportation would not be a proportionate to his breach of family life.
The judge dismissed two separate appeals against deportation from two drug dealers who had also claimed the right to family life.
But he signalled a stark warning over the Government’s attempts to rebalance how the courts consider Article 8 of the European Convention on Human Rights as a protection for criminals.
In a consultation last summer, the Home Office said where someone was jailed for more than a year “it is reasonable to presume that the public interest will warrant deportation and that only in exceptional circumstances will it be a breach of the right to respect for private and family life to remove the person from the UK”.
After making a direct reference to the consultation, Mr Justice Blake said it “puts a gloss” on the fact Article 8 provides an exception suggesting that is only the case in exceptional circumstances.
“This is not what the statute says. It nowhere suggests that the Article 8 claim must itself be exceptional,” he said.
“Indeed it is difficult to see how it could do so.”
He added: “The task in Article 8 assessments is whether interference with established family or private life that is to be respected is necessary and proportionate, that is, strikes a right balance.”
Dominic Raab, the Tory MP, said: “It adds insult to injury that the President of the Upper Immigration Tribunal is engaged in a political attack on the government for trying to reform the current legal shambles.
“It shows that we need an Act of Parliament to clear up the mess and make public protection the top priority.”
Sir Andrew Green, chairman of the campaign group Migration Watch UK, said: “This throws a spanner in the works of Home Office attempts to narrow down the use of the right to family life as an excuse for avoiding deportation by foreign criminals.”
A UK Border Agency spokeswoman said: "We are disappointed by the court's decision in this case and we will now look at whether we can appeal this verdict.
"For too long Article 8 has been used to place the family rights of foreign criminals and immigration offenders above the rights of the British public.
"This is why we will change the immigration rules to reinforce the public interest in seeing foreign criminals and those who have breached our immigration laws removed from this country.”
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