British law: the absence of moral clarity

A GB News article was met with some dismay on X this morning.

A paedophile migrant convicted of sexually abusing a five-year-old child has won the right to challenge his deportation after a judge ruled he made an “honest mistake” in failing to declare his criminal past. Edi Cardoso Ramos, 29, did not disclose his conviction when applying to remain in the UK.

The Upper Tribunal of the Immigration and Asylum Chamber heard Ramos committed the offence in Portugal in 2012 as a teenager. He was convicted two years later, aged 19, and given a three-year suspended prison sentence, which was not activated after he met its conditions.

Ramos moved to the UK in 2018, around a year after his sentence ended. In 2020, he applied for leave to remain and answered “No” when asked about previous convictions. He later claimed he believed the question referred only to offences committed in the UK.

The form asked: "Have you ever been convicted of a criminal offence, or arrested or charged with an offence that you are on trial for or awaiting trial?"

Judge Paul Lodato ruled in his favour, allowing the case to be reconsidered and giving him the chance to fight his removal. The judge assessed whether Ramos posed a “genuine, present and sufficiently serious threat” to society. He concluded the Home Office had not shown he represented a current danger.

“Having considered this issue very carefully, I am not satisfied, based on the evidence before me, that the (Home Office) has established that the threat (Ramos) represents is a present threat,” Judge Lodato said.

Addressing the prostitution offence, the judge added: “I do not think that it has been made out that outraging public decency and soliciting indicates a continuation of a pattern of offending of the kind of which (Ramos) was convicted in 2014.”

On the failure to disclose his conviction, the judge accepted Ramos’s explanation “as being credible”. “I find that he made an honest mistake when he answered the question about his previous convictions and that his failure to disclose the material fact of his 2014 conviction in Portugal was not dishonest,” he said.

Judge Lodato said the non-disclosure did not prove Ramos posed a present threat, describing him as “a genuine and sufficiently serious threat, but one that is not present”. The ruling means Ramos can now pursue a fresh hearing in his bid to avoid deportation to Portugal.

On the back of this, some on X are calling for judges to be sanctioned. I certainly understand the impulse. But the judge here is not being asked to consider the merits of this individual, only whether the threat he poses is present, and whether his reasons for not disclosing his criminal past were plausible. That is the basis on which a fresh hearing is granted.

As such, this isn’t a problem with the judge and once again it isn’t an ECHR issue. The issue is the law and the process. One thing you notice when you study these cases in any detail is that while you may not like the conclusion, the ruling on what the judge is actually asked to assess is technically correct even if the outcome is offensive.

But it’s cases like this that add to the backlog precisely because judges have limited discretion. A functioning system would have afforded this judge to consider the public good in this matter. A basic good character test should have eliminated any possibility of appeal here.

A further amendment to the system could be that the judge can make a recommendation to prejudice any future appeal, and prejudiced rulings go to the front of the queue to secure a swift verdict likely to result in a deportation order. That said, where child sexual offences are concerned, any appeal should be flatly denied.

As I understand it, though, it works this way because if the laborious process is not followed to the letter it can be challenged. As far as oversight goes, it is not interested in the morality of outcomes, only whether the process has been followed. And that seems to be the problem throughout. It’s become a sterile technical process that barely requires human assessment much less an expensive judge. Moral judgement has been removed from the system - and only individual rights are considered without regard to rights of the public as a whole. The framework prioritises procedural purity over outcomes that keep the country safe.

What’s clear to me is that regardless of any ECHR considerations, the entire legal system has become corrupted and detached from any notion of public morality and natural justice, reducing judges to the position of speak-your-weight machines. While there are technical problems with the process, some of which could be remedied with subtle amendments, this is more of a philosophical problem where law as a whole has become a neutral procedural engine rather than a tool for a cohesive society’s survival. This necessitates deeper philosophical reorientation.

Fixing this, though, is no small undertaking. Here you have to ask how we got here. As I understand it, it’s the onset of “legal positivism”, a school of jurisprudence holding that law is a social construct, valid based on its source (e.g., enacted by a government) rather than its moral merit. It asserts that there is no necessary connection between law and morality, separating what law is from what it ought to be.

While the obvious culprit seems to be the ECHR and HRA, with everything deteriorating from Blair onwards, I don’t think that fully explains it. While I’m not a law scholar, I am a computer programmer and if there’s one thing that strikes me about modern law is its similarity with procedural coding. Computer programmes are little more than a collection of rules and judgements.

The reason we bother with computer programmes is in order to affect rapid decision making at scale. And that’s half the problem with our legal system. At its philosophical best it simply cannot cope with the workload. The asylum appeals backlog has reached a record high of over 80,000 cases and it rises by a thousand cases a week. Either a base assumption must change, or the system must be automated with minimal human intervention - which is how we drift towards the dystopia of social credit systems.

Since our concern is liberty, public morality, democracy and the rule of law, we have to change the base assumption of the system. Parliament is entitled to dictate who may reside in Britain, and the opinions of judges must always be subordinate. Technical fixes may provide some short term remedy, but the absence of moral clarity is unsustainable.