Almost every day there seem to be new headlines about abuses of the asylum and immigration system. The latest involves the case of a Gazan family who were granted the right to remain in the United Kingdom after they applied to enter the country under the Ukraine Family Scheme visa.
Unsurprisingly, the Home Office determined that the Gazan family did not qualify for the Ukrainian scheme. The government also concluded there were no compelling, compassionate circumstances to justify the family remaining in the UK.
The family’s initial application was dismissed by a first-tier immigration tribunal judge in September last year. However, they were allowed to remain after an appeal to the Upper Tribunal concluded they were protected by Article 8 of the European Convention on Human Rights (the right to family life). The Upper Tribunal determined that the family had demonstrated ‘a very strong claim indeed’ and that there were ‘compelling or exceptional circumstances’ to allow the appeal.
Inevitably, the case has raised concerns at the Home Office that it could open the floodgates to more claims and allow anyone from a conflict zone to apply for the Ukrainian scheme. The case has even prompted the Prime Minister, Sir Keir Starmer, to say at PMQs today that he did not agree with the decision and that the government would need to act.
It is also yet another case which allows opponents of the ECHR to argue that the UK should leave the Convention entirely in order to prevent these sorts of claims.
Is it necessary to leave the ECHR though? I would argue instead that many of these problems could be solved by first reforming our own immigration and asylum laws.
Our current immigration system relies on a wide-ranging mix of primary and secondary legislation, built up over many years. As a result, judges have a large amount of discretion when it comes to interpreting cases.
To resolve this, we need to draw up our asylum and immigration laws from scratch with new legislation. This legislation should be drafted, as far as possible, on a cross-party basis, and be subject to extensive pre-legislative scrutiny. This would allow Parliament to agree on clear, precise and hard rules about how our immigration system should operate in practice in the 21st century.
If such a bill was drafted proportionately and clearly, there is no reason to expect the courts to interfere on human rights grounds. In the case of Simms in 1999 the courts recognised that parliamentary sovereignty means that Parliament can, if it wants to, legislate ‘contrary to fundamental principles of human rights’. But the ruling made clear that parliament had to be upfront about this when it legislated, with the court pointing out that fundamental rights ‘cannot be overridden by general or ambiguous words.’
When it comes to immigration, governments have done this too often. They have frequently sought to grant the Home Secretary sweeping powers to amend the rules in ways which are then open to legal challenge, rather than focusing on introducing precise rules in primary legislation with a limited discretion for judges to intervene.
A new bill would not need to breach fundamental human rights to achieve its aims. It would simply have to make it clear how judges should apply the Human Rights Act (and the ECHR) in immigration cases. The legislation would be protected from domestic legal challenges if it was meticulous in what it was aiming to do, avoided political stunts (like the Rwanda scheme), and used plain words to express its essential aims.
For example, if we wanted to make sure that someone found guilty of certain offences (such as terrorism, sexual offences, or serious violence) was always deported, regardless of their ties to the UK, a bill should state this clearly. At present, it appears judges may have too much discretion when it comes to deciding who can be deported and who can stay in ‘exceptional circumstances’.
Equally, the UK could set out a clear pathway under which asylum seekers can apply to the UK and exclude certain countries or types of claims from consideration. Other proportionate restrictions could be placed on the right to family life, so that judges no longer use Article 8 in quite such an expansive way.
Passing a bill like this would have another important impact. At the moment, our courts are able to reasonably argue that they are not indulging in activism in immigration cases – they are simply acting in accordance with the law as it stands. If a new immigration and asylum bill, agreed on a cross-party basis, made explicitly clear how our rules should interact with our international obligations, any potential for judicial activism should be severely limited.
It is true that a new UK immigration law could be challenged in Strasbourg. But if the new rules were proportionate and reasonable there is no reason such a challenge would succeed. There has never been a better time to do this either, with several other European states currently looking to tighten their own immigration rules. If there is agreement on these issues, there may even be scope for changing the Convention itself.
Instead of hiding behind unwelcome judicial decisions, perhaps it is time to put Parliament back in charge of our immigration system.
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