The Tale of Babar the Policeman; or Is the Law an Ass?

This is the judgment of the Court of Appeal in an immigration case. My guess is that most ordinary people would think it shows that, at almost every turn, immigration law is an ass.

Mr Babar entered the UK at some point during 2000/01 and claimed asylum on 29 January 2001. He was refused asylum. However, he was granted exceptional leave to remain in the UK. Why? Because he was on bail in Pakistan for some kind of criminal offence and so there was a real risk that he would be subjected to inhuman or degrading treatment due to the prison conditions and the likelihood of mistreatment by the police and prison guards, i.e., sending him back would have been a breach of his rights under Article 3 of the 1950 European Convention on Human Rights.

Right. So he was accused of a crime, on bail, absconded to the UK and did not have a good claim for asylum? My guess is that most people would say at this point that Mr Babar should be sent back. He doesn't sound like he's accumulated many points on any points-based immigration system you can imagine.

Wait - how do we know that the police in Pakistan are so bad? Well, one source of information is Mr Babar himself: "Mr Babar had been in the police for some seventeen years and ended up commanding a squad of 20-30 people in the anti-narcotics division.  He himself admitted in interview to beating and threatening arrested persons in order to obtain information and to permitting those under his command to do so." (Although please note that "his conduct was no more than the norm for police officers in Pakistan at the time".)

I'm guessing most people would now say that he is definitely not someone to have in the country.

But then there is this: "The Secretary of State was satisfied that this [i.e. his police 'work'] constituted a pattern of widespread and systematic crimes against the civilian population which satisfied the definition of crimes against humanity. Mr Babar was therefore excluded from the protection of the Geneva Convention by Article 1F(a) and could claim neither asylum nor humanitarian protection." (This Geneva Convention is the 1951 Refugee Convention.)

Really? A narcotics squad that beats people up and threatens them is really bad. I'm not disputing that. But a crime against humanity? Are we seriously in genocide territory here? Surely Mr Babar's just a dodgy cop, not a war criminal.

Let's leave Mr Babar for a moment. Is there a Mrs Babar? Yes there is! Mrs Babar and their three children followed him to the UK and were granted indefinite leave to remain. Why? How? I don't know.

Anyway, back to Mr Babar. In 2012, having been in the UK lawfully for 10 years, he makes his own application for indefinite leave to remain, based on the fact that he had been in the UK without incident for 14 years (14 years? since 2000? search me), that he had worked hard and not been a drain on public funds and that he had very close family ties with his wife and his children (I should hope so too).

How would you decide that one? I'm going out on a limb here, but my guess is that after 14 years living in the country together with his family with no problems, many people would be inclined to let him stay.

But don't forget the key features of the case from the legal point of view, namely (1) that he feared for his safety in Pakistan and (2) that he was one of those "crimes against humanity" guys that you read about in the newspaper (or at least see mentioned in those long articles full of Balkan names that you skip over to get to the sports section).

So the Government asked him a bit more about what might happen if he went back to Pakistan. "Mr Babar responded in a short statement in which he claimed still to fear that he would be detained and ill treated if returned to Pakistan.  This was despite the fact that in his application form for indefinite leave he disclosed the fact that he had returned to Pakistan for holidays twice in 2009 and again on three occasions in 2012, in each case without any difficulty and without the authorities showing any interest in him."

He went to Pakistan 3 times in 2012! That's three times before his application was made in the September of that year. He was practically commuting to the country!

Anyway, the Government decided that his crimes against humanity outweighed everything else and decided to send him back. Mr Babar appealed. The case got appealed a couple more times, hence ending up in the Court of Appeal.

You'll have to click the link to see what the Court decided. But I'll tell you one thing that weighed heavily with them: "Article 1F [of the Geneva Convention] is intended to protect the integrity of the asylum process and is designed to ensure that individuals should not be allowed to avoid being returned to their country of origin where they may be held accountable for their actions. Upholding the international rule of law requires no less."

That's right: it's apparently important to consider whether Mr Babar, who (let's recall) was originally absconding bail when he arrived in the UK but who has been back to Pakistan many times since of his own volition and without incident, should avoid being returned to Pakistan in order to face trial for 'crimes against humanity', those 'crimes' being acts that were normal for policemen in Pakistan. Not only is considering that unlikely possibility important, but upholding "the international rule of law" (one of the weightiest phrases in any lawyer's toolbox, normally accompanied by a blast of Beethoven's Ninth and a prim leader in one of the more expensive newspapers) demands no less.

I don't blame the judges - they don't write these laws. And it's hard to blame the Government either, constrained as it is by Conventions drawn up in the wake of the evils of Nazi Germany and the turmoil of World War II. But we are left with the situation in which they have to go through a bizarre process of deciding whether a man of doubtful qualities who tried to avoid criminal proceedings in Pakistan and make a better life for himself in the UK is more like a Jewish person fleeing Nazi torture or a Nazi criminal fleeing the Nuremberg trials - even though he took repeated holidays back to Pakistan. If you imagine a Jewish refugee popping back to visit family in Warsaw during the War, or a fugitive Hitler visiting Nuremberg to check how his old mates were getting on with their legal difficulties, then you'll see how crazy this all is.

On another note, fans of One Direction might be pleased to see that Mr Babar was represented by Zane Malik.