A CONVICTED criminal who should have been deported to the Democratic Republic of the Congo will now be able to stay in Scotland permanently thanks to delays partly caused by the Home Office while Prime Minister Theresa May was in charge.

In a hugely embarrassing case for the supposedly “hard line on immigration” May, a Scottish judge, Lady Wise, has declared that the delay in dealing with the case – partially while Theresa May was Home Secretary – is one reason why she has ordered the deportation to be cancelled.

The Home Office is also stated to have made “material errors” by the judge.

The case involves a Congolese asylum seeker who can be described only as AK. He arrived in the UK in December 2004 and his asylum claim was refused. According to Lady Wise he has been present in this country ever since. In 2008, AK was convicted of possession of six false identity documents and sentenced to one year’s imprisonment on each charge concurrently.

Deportation to the Congo was not automatic in cases of criminality due to the unrest and threats to deportees in the country at that time.

Under the immigration rules, an exception can also be made when a convicted person has “a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child, and the effect of deportation on the partner or child would be unduly harsh”.

The Home Office decided to deport AK, however, and his appeal against that decision was refused.

AK subsequently made further submissions including a claim under Article 8 of the European Convention of Human Rights which guarantees the right to a family life – he has a partner and they have a child.

According to Lady Wise: “These further submissions were not accepted and an appeal against that refusal in 2012 was unsuccessful. The petitioner [AK] became appeal rights exhausted on 10 June 2013.

“This petition concerns further submissions made by him in June 2014, with further supporting information added in both 2015 and 2016. The respondent [the Home Secretary was then Theresa May] declined to accept those submissions as a fresh claim. The relevant decision of the respondent (Theresa May at that time and now Amber Rudd) was taken on 8 May 2017 and the petitioner seeks reduction of that decision.”

Lady Wise heard evidence from lawyers for AK before concluding in his favour. They had argued that the conviction in 2008 was not enough for the Home Office to rely on.

Lady Wise wrote: “On the undisputed facts of this case, the petitioner is someone who has lived openly in this country for many years since the decision to deport him was taken. He has created and enlarged a family and there is no indication that he has reoffended. On the basis of those undisputed facts it was incumbent upon the respondent to explain clearly why the criminal conviction of 2008 outweighed the relevant and more recent information in relation to the additions to the petitioner’s family.

“Having taken three years to assess the proposed fresh claim the respondent has not shown how these competing factors have been balanced.”

Lady Wise ordered the deportation to be overturned, concluding: “Further, the absence of reference to the very lengthy passage of time in this case and the impact of that on the prominence or otherwise to be given to the criminal conviction as compared with the significant family life established is illustrative of a lack of anxious scrutiny in this particular case.

“These are material errors justifying reduction of the decision.”