Sunday, February 12, 2012

Top British judge ordered to scrap human rights ruling

Britain’s most senior immigration judge has been ordered to scrap a ruling which allowed a foreign killer to stay in Britain on human rights grounds.

Court of Appeal judges quashed the ruling in which Mr Justice Blake and a colleague allowed Rocky Gurung, from Nepal, to remain in the UK. They said the original judgment suffered from an “error of approach” and looked like “a search for reasons for not deporting him”.

The decision landed Mr Justice Blake in a second controversy, only days after he was criticised for permitting an Indian male nurse to remain in Britain following a jail term for indecently assaulting a woman patient.

It is expected to increase pressure on immigration judges amid growing concerns over how criminals are exploiting human rights laws.

David Cameron, the Prime Minister, has expressed alarm at the way human rights are preventing dangerous offenders and terrorists such as Abu Qatada from being deported.

Damian Green, the immigration minister, last night joined relatives of Gurung’s victim in welcoming the Court of Appeal’s decision. It means the case will now have to be heard again by the Upper Tribunal Immigration and Asylum Chamber, of which Mr Justice Blake is president.

Gurung came to Britain in 2005, just three years before he committed the crime. The victim of his attack, Bishal Gurung (no relation), was a hard-working waiter whose father Cpl Khem Barsad Gurung served with the Gurkhas for 16 years.

In April 2008 Bishal was working at a Nepalese restaurant in Esher, Surrey, when he came to London to celebrate Nepalese new year. After leaving a party on a boat on the Thames in the early hours he was chased along the Embankment by 10 to 15 men including Rocky Gurung. The Old Bailey heard the gang falsely accused Bishal of hitting another man, Kemik Thakali, with a bottle.

One witness told the court that Bishal was “on his hands and knees” being kicked or beaten by seven or eight men and was then thrown into the river by Rocky Gurung and Thakali, from Morden, south-west London. Bishal’s body was in the Thames for two weeks before it was found.

Rocky Gurung and Thakali were both jailed for three years for manslaughter. The law says offenders jailed for 12 months or more are subject to “automatic deportation” but there is an exemption if removing them would breach their human rights.

At the end of his sentence Rocky Gurung, also a Gurkha's son, appealed against the Home Office’s decision to deport him, and lost. He then appealed again to the Upper Tribunal – the case overseen by Mr Justice Blake. He claimed that deporting him to Nepal would breach his “right to family life” even though he was single, had no children and lived with his parents.

In a judgment first disclosed in January last year, the court ruled in the killer’s favour that deporting him would be “disproportionate”.

The Home Office later appealed to the Court of Appeal and a panel led by Lord Justice Rix concluded Mr Justice Blake’s decision was faulty. “It appears to us that there has been an error of approach on the part of the Upper Tribunal,” ruled the three appeal judges.

They said they were “troubled” by the conclusion of Mr Justice Blake that the “nature and seriousness” of the offence did not in themselves justify interference with Rocky Gurung’s human rights through deportation. Such an argument “misplaces the emphasis”, said the panel.

“Much of the determination has the appearance of a search for reasons for not deporting him rather than – as in our view it ought to have been – an inquiry into whether, despite the statutory policy of automatic deportation, article 8 of the Convention would be violated by its implementation,” they said.

Bishal’s sister Karuna, 29, from north London, said: “The previous decision was completely wrong. I am extremely happy it has been thrown out. I would like to see Bishal’s killer deported.”

Ian Macdonald QC, the chairman of the Immigration Law Practitioners’ Association, said: “I’m sure Mr Justice Blake will be feeling like he’s been rapped on the knuckles, but that is how the law works. This is why we have an appellate system.”

The case also illustrates the tortuous legal process faced by the government to deport serious foreign criminals, with the cost of the Gurung case thought to run into tens of thousands of pounds.

Mr Justice Blake, as Nicholas Blake QC, was previously a human rights barrister at Matrix Chambers, which is most closely associated with Cherie Blair, the wife of former prime minister Tony Blair. He was knighted in 2008 and appointed president of the Upper Tribunal Immigration and Asylum Chamber in 2010. Previously he co-authored the legal textbook Immigration, Asylum and Human Rights.

In a judgment published at the end of last week, Mr Justice Blake allowed Milind Sanade, a male nurse from India, to remain in Britain despite being convicted of indecently assaulting a pregnant 21-year-old patient and asking “Does this feel good?”

The Home Office tried to remove Sanade at the end of his prison sentence under automatic deportation rules but Mr Justice Blake and a colleague upheld his second appeal under Article 8 of the European Convention on Human Rights, which enshrines in law the right to a private or family life.

Sanade, of Chelmsford, is married with two children born in England. Yesterday his family were not at home, and neighbours said they had gone away.

Because Sanade has now been now struck off the nursing register and is under other restrictions which prevent him working unsupervised with women, the judges said: “He is more regulated in his future conduct in the United Kingdom than he would be in India. “Whilst we recognise that this was an offence involving gross breach of trust this is not criminal conduct at the higher end of the range of seriousness.”

Sanade, 36, said last night: “I’m just glad to put my sentence behind me. I’m sorry for what happened but I’ve served the time and now I should be here in the UK with my family.”

Other similar appeals considered by Mr Justice Blake at the same time, involving two Jamaican criminals each with children holding British nationality, were rejected.


Canada: As immigration booms, ethnic enclaves swell and segregate

More than 600 newcomers per day have arrived in Canada since 2006, and many of them have settled in neighbourhoods like Richmond, B.C. The once-quiet farming community on the south end of Vancouver is now home to North America’s second-largest Asian community — and Canada’s densest proportion of foreign-born residents. The city’s strip malls are a haven for dim sum. Richmond’s roads are replete with white delivery vans emblazoned with Chinese characters and massive 150-store Asian-friendly malls seemingly plucked right from downtown Shanghai.

While the Chinese who came to Canada in the opening days of Confederation settled into dense urban Chinatowns, recent Chinese immigrants now occupy large sprawling Chinalands: Large, self-contained and lined with restaurants and supermarkets offering the comforts of the old country. Indo-Canadians, South Asians and others can lay claim to similar booming settlements in the outskirts of Montreal, Vancouver, Toronto — and the resource-rich centres of the Prairies. And it is only the beginning. By 2030, according to Statistics Canada, more than 80% of Canada’s population growth is expected to depend on immigration. Ethnic enclaves are set to fill up faster and longer than ever before.

In almost every Canadian family tree, there is an ethnic enclave: Irish Catholics in Montreal’s St. Anne’s Ward, European Jews in Toronto’s Kensington Market or Ukrainians in the new farming villages of early 20th century Alberta. “People find their footing in these neighbourhoods … they pull comfort from these areas, especially women and elderly people,” said Sandeep Agrawal, a specialist in ethnic enclaves at Ryerson University.

In 1981, Canada had only six neighbourhoods with ethnic enclaves (neighbourhoods where more than 30% of the population is a visible minority). Now, that number has mushroomed to more than 260. In cities like Vancouver, home to nearly half of these enclaves, neighbourhoods are becoming increasingly defined by ethnicity. Unlike the racial ghettoes of the U.S. or France however, Canada’s ethnic communities are often shaped by choice. “People have made the decision voluntarily to move to these areas,” said Mr. Agrawal.

The enclaves of today may have more staying power than the Little Italys and Jewish quarters of years past, explained Mohammad Qadeer, professor emeritus of urban and regional planning at Queen’s University. “They will continue to draw new immigrants who will keep on arriving as far as the eye can see,” he wrote in an email to the Post. While Canada’s influx of Italians, Germans, Jews and Greeks largely ended after only 10 or 20 years, India, China and South Asia represent near-bottomless supplies of new Canadians — particularly as Canada’s immigrant needs are more potent than ever.

The vast majority of these enclaves are in the suburbs. “They’re going to where the land is cheaper and they’re going to where accommodation is available,” said Larry Beasley, former co-director of planning for the City of Vancouver.

And, economic mobility is not what it once was. Although many immigrant neighbourhoods are prosperous — the largely Chinese Toronto suburb of Markham, for example — newcomers arriving in Canada between 2000-2004 on average earned only 61 cents for every dollar earned by Canadian-born workers, according to a recent TD Economics Report. This, coupled with spiralling urban land prices, means that the newcomer of 2012 does not have nearly the economic freedom as the newcomer of 1992. “Although the term ‘ghettoes’ is rarely used in Canada, the concentration of immigrants into ethnic enclaves is similarly often caused by economic factors,” wrote Alex Lovell, a professor of geography at York University, in an email to the Post.

The result, critics fear, is that poorer, far-flung, constantly replenished enclaves have become more susceptible to isolation. Even better-off immigrants have tended to settle in prosperous suburbs filled largely with people of the same background, served by media and merchants focused on one community.

Immigration Minister Jason Kenney, under whose watch more than a million newcomers have claimed Canadian citizenship, can often be seen mounting podiums at Chinese restaurants and Indian business associations calling for greater integration. “We don’t want to create a bunch of silo communities where kids grow up in a community that more resembles their parents’ country of origin than Canada,” he said in 2009.

In 2009, a planning firm hired by the city of Calgary ignited outrage when it called for the city to discourage “Asian’’ malls that cater only to a specific ethnic group” on the grounds that it “marginalized ethnic enclaves.” Amid a torrent of complaints from Calgary’s 67,000-strong Asian community, the city omitted the offending passage from the report. “I understand why certain people are concerned about it,” said Tom Leung, the firm’s Chinese-descent president told Postmedia in 2009. “I’m a very strong supporter of the Asian community. But we also have to take a look at the commercial realities.”

Mr. Leung need not have mentioned it. Behind the scenes, the wheels of integration were already spinning. This year, more than 6% of Calgary marriages will be interracial — higher than the national average. Notorious as a centre for white supremacist rallies and marches, in 2010 Calgary also became the first major Canadian city to elect a Muslim mayor, Naheed Nenshi. The son of Tanzanian immigrants, Mr. Nenshi came of age in Calgary’s minority-rich northeast quadrant.

At its height in the 1980s, the 10-block-long Greek section of Toronto’s Danforth Avenue was the largest Greektown in North America. Street merchants hawked spanakopita and lamb souvlaki outside Greek nightclubs and coffee shops — while Greek families filled the verandaed homes of the surrounding neighbourhood.

But lately, there are not a lot of Greeks left in Greektown. The sons and daughters of the Giannopolouses and the Rossos, well-versed in the language and steeped in Canadian culture, moved off to condos downtown and ranch houses in the suburbs — if they have even stayed in Toronto at all.

Every year, the four-lane avenue sees another Greek restaurant or cafe close up shop, soon replaced by a sushi restaurant or a high-end clothing boutique. Some are driven out by rising rents, others close their doors simply because a Canadian-born son has refused to take up the family business. As one Danforth business owner told last March, “I’m afraid the only thing still Greek in a couple of years will just be the signs.”

“As a planner, you’re always sorry when character dissipates,” said Mr. Beasley. “We all love the character of an ethnic area, but to some extent it’s a sign of social dysfunction rather than a sign of social integration,” he said.

Mr. Beasley points to the famous Chinatowns of the West Coast: Dense urban areas in Vancouver and Victoria fronted by ceremonial gates, hung with lanterns and peppered with mysterious alleys, basement cafes and winding former opium dens. They are “physically vivid” sectors of the city, but they are also the scars of ethnic segregation, said Mr. Beasley. In early 20th century British Columbia, Chinese were blocked from high-earning professions and had their children sent to separate schools. Locked out by mainstream society, their culture turned in upon itself and flourished.

But even these storied downtown landmarks may not be Chinese forever. “They’re all looking for alternative destinies for these neighbourhoods,” said Mr. Beasley, referring to the neighbourhood’s modern-day Chinese-Canadian owners. “They’re not saying ‘we’re holding this as Chinatown,’” he said.

Chinalands may share the same fate sooner than we think. In China and India, surging economies are increasingly absorbing the engineering and high-tech talent that once left to find work in Canada. Meanwhile, the Eurozone crisis is promising fresh waves of Irish, Icelandic and Greeks. Since 2009, Filipinos — to the tune of 30,000 per year — have trumped even the Chinese in Canadian citizenship oaths.

Within 15 years, even the daunting Chinese landscapes of Richmond could well be gentrified with hipsters and yuppies — or emblazoned with the text of some African or South American newcomer. Already, the neighbourhood’s veterans are pining to move on. “I’d like a more typical North American city and lifestyle, with not so many Chinese people,” Richmond resident Jeremy Lau, who came to Canada from Hong Kong in 1993, told Postmedia in October.

As it should be, said Mr. Beasley. “Ethnic neighbourhoods are a joy when you have them, and it’s a joy when you don’t have to have them,” he said.


No comments:

Post a Comment