The need for Britain to think seriously about its membership of the ECHR gets more glaring daily. Some time ago, a Gazan woman was given refuge in the UK with her three children. She then asked the Home Office to bring in 18 more people from Gaza: her parents, three siblings, two of their spouses and their children. They do not have any other connection with this country, and many speak no English whatsoever. Met with an understandable refusal, the relatives sued. This week they won in an immigration appeal tribunal. Why? The right to family life, as enshrined in Article 8 of the ECHR.
You might have thought that signing a convention agreeing to respect family life didn’t involve committing to upend our immigration laws in favor of vast Middle Eastern extended families
You might have thought that signing a convention agreeing to respect family life didn’t involve committing to upend UK immigration laws in favor of vast Middle Eastern extended families. The governments that set up the ECHR in 1950 almost certainly thought the same. But hey-ho, this is human rights land, where the rules of common sense apply if at all only in a very vague way.
In a microcosm this case illustrates rather neatly what is wrong with the ECHR and its emanation here, the Human Rights Act 1998.
For one thing, the human rights establishment’s attitude to the ECHR is rather like Humpty Dumpty’s approach towards the English language in Through the Looking-Glass. They primly refer to the Convention as a “living instrument”: meaning they reserve the right to make words mean what they choose them to mean – neither more nor less.
Nothing shows this more clearly than Article 8 on family life. Originally aimed in a fairly limited way at preventing the deliberate splitting of families for unpleasant reasons of ideology, eugenics, social punishment or other horrors, its tentacles have now spread vastly further. The right has now been extended to protect in principle almost any sentimental attachment or desire to maintain a familial connection, and at times the familial feelings of those outside the UK. In common with much of the rest of human-rights law, the question of state intent has long been sidelined. What matters is not whether a measure is aimed at splitting a family, but whether it has that effect. If it does, then even if the relevant legislation was aimed at something entirely different, such as maintaining effective immigration control, at least in principle the Convention applies and the state has to justify its actions.
While no one is suggesting that the ECHR completely overrides a state’s right to decide who, within reason, it wants to take, what this has meant is that any immigration control has to be open-ended: there must be a let-out where the effect of refusing clearance would be disproportionate.
This in turn generates a further problem. Even though the Court of Appeal rightly said last year that the family life exception was narrow and in general does not include people such as adult siblings, it remains in principle open-ended, and therefore susceptible to some fairly subjective interpretation.
The immigration bench is largely drawn from human-rights lawyers with liberal views on migration. Most will have been educated by leftish law professors (few conservative human-rights skeptics get appointed to teach human-rights courses); having graduated, they will tend to gravitate towards the more progressive law firms, or to barristers’ sets like Garden Court Chambers in Lincoln’s Inn Fields. The result is predictable. However officially small the human-rights envelope is in theory, those deciding immigration cases are very likely in practice to push it fairly hard and hold that a particular case is indeed an exceptional one where human rights trump all else.
The ECHR requires governments to loyally to obey its terms and the interpretation of them by Strasbourg – even when they are directly contrary to the wishes of elected governments and the voters that put them in. Such an anti-democratic policy might be justified on a narrow interpretation of the Convention limited to egregious state malpractice. It is very difficult to justify against the background of today’s free-wheeling interpretation by Strasbourg.
As regards this week’s disastrous judgment, we can only hope that Shabana Mahmood, or whoever replaces her as Home Secretary, appeals it. Meanwhile, however, the dark cloud of the ECHR will remain. Whether Andy Burnham likes it or not, the issue will land smartly on his desk. And, soberingly for him, he will have to think up a decent answer fairly quickly if he wants to convince an increasingly angry electorate that he can be trusted to look after the interests of the country.
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