Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
| Published date | 01 January 2022 |
| Author | Christopher Rowe |
| Date | 01 January 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12673 |
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Modern Law Review
DOI:10.1111/1468-2230.12673
Falling into Line? The Hostile Environment and the
Legend of the ‘Judges’ Revolt’
Christopher Rowe∗
In 2012 the Government made a number of controversial changes to the Immigration Rules,
which it claimed would ‘comprehensively reform the approach taken towards ECHR Article
8 in immigration cases’. This paper examines the judicial response,arguing that the courts ‘fell
into line’, adapting human rights law to the government’s aims through unprincipled and op-
portunistic techniques, whilst inicting hardship and injustice on working-class British citizens
in particular. Four key moves are identied. First, the courts created an ‘incapable’ test which
immunised the rules from in principle challenges. Second, Lord Bingham’s Article 8 test, in
which the reasonableness of any family member relocation was a central consideration,was re-
placed with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test
at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally,
the courts identied immigration policy as the ‘constitutional responsibility’ of the executive.
Keywords: Immigration Law, Public Law, Human Rights, Ar ticle 8, Judicial Politics, Deference
INTRODUCTION
Immigration has been one of the salient political issues in the UK for at least
20 years. Prior to the 2016 referendum, it was often named in opinion polls as
the ‘most important issue’ for voters, whilst newspapers have run innumerable
stories on how the UK is a ‘soft touch’ for ‘bogus asylum seekers’, ‘immigrant
benet scroungers’ and ‘foreign criminals’.1Prominent politicians from both
main parties have engaged in similar rhetoric, from William Hague’s fear that
Britain was becoming a ‘foreign land’ to David Blunkett’s warning that the chil-
dren of asylum seekers were ‘swamping’ schools.2Unlike New Labour, which
broadly adopted a strategy of ‘tough talk’towards asylum seekers and ‘illegal im-
migrants’ whilst liberalising the immigration system and overseeing a very large
increase in net migration,3the Coalition Government signicantly tightened
∗PhD Student, University of Sheeld. Many thanks to both reviewers for very helpful comments a nd
suggestions. All URLs last accessed 15 July 2021.
1 S. Blinder and L. Richards, ‘UK Public Opinion toward Immigration: Overall Attitudes and
Level of Concern’ Migration Observatory brieng, COMPAS,University of Oxford, January
2020.
2 J. Carvalho, ‘The end of a strategic opening? The BNP’s window of opportunity in the 2000s
and its closure in the 2010s’ (2015) 49 Patterns of Prejudice 271, 281-282.
3 In 1997 net migration was 48,000 and had been negative in some years in the early 1990s.From
2004 to 2010 it ranged from 229,000 to 273,000. M.Sumption and C. Vargas-Silva, ‘Brieng:
Net migration to the UK’ Migration Observatory brieng, COMPAS,University of Oxford,
July 2019.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2022) 85(1) MLR 105–132
The Hostile Environment and the Legend of the ‘Judges’Revolt
the rules in 2012, sharply restricting the ability of some groups, including the
spouses of British citizens from outside the European Economic Area (EEA),
to enter or remain in the UK.4
Accompanying the changes the Government issued a ‘Statement of Intent’,
which claimed that the new rules ‘will comprehensively reform the approach
taken towards ECHR Article 8 in immigration cases’ since they ‘reect fully the
factors which can weigh for or against an Article 8 claim’ and ‘set proportionate
requirements’.5Accordingly, ‘failure to meet the requirements of the rules will
normally mean failure to establish an Article 8 claim to enter or remain in the
UK.’6Such claims abound throughout the statement and elsewhere,7which
led to some understandable confusion about the purpose of the changes. The
rules, usually considered a statement of executive policy, some thought were
attempting to (unlawfully) override tr ibunals’ primary legislation obligation,
under section 6 of the Human Rights Act 1998 (HRA 1998), to act compatibly
with appellants’ European Convention on Human Rights (Convention) rights,
with a tribunal no longer deciding proportionality for itself on the facts of the
case.8At the same time, the use of phrases such as ‘normally’ and the inclusion
of ‘exceptional circumstances’for some aected g roups suggested that there was
some scope at least for non-citizens to succeed under Article 8 even if they did
not meet the new requirements. Moreover, at times the Government gave the
impression that the purpose behind their various Article 8 related claims was to
send a message to the courts about how it should be interpreted, suggesting that
that the Government did not believe that changes to the rules would directly,
at least, change the law on Ar ticle 8. As Theresa May, then Home Secretary,
when nishing her commendation of the motion in the House of Commons
debate in support of the changes, put it:‘we are allowing the views of those in
Parliament, as the democratically elected representatives of the British people,
to be heard on this issue loud and clear. We trust that the courts will give due
weight to a statement from this House’.9The government exerting pressure on
the judiciary by expressing its view might be considered undesirable or even
unconstitutional but it would not be unlawful.
What was clear was the potential for the rules to spark conict between the
government and judiciary, and this came to pass less than six months after their
introduction. In a notorious article for the Mail on Sunday,Theresa Maycrit-
icised the judiciary for ‘sabotaging’ the changes, with some judges ‘ignor[ing]
Parliament’ and getting it ‘into their heads that Article Eight … is an abso-
lute, unqualied r ight’ to the extent that ‘our democracy is subverted’.10 May’s
outburst appeared to be the result of twoUpper Tribunal (UT) decisions, Izuazu
4 Statement of Changes in Immigration Rules, HC 194 (13 June 2012).
5 Home Oce, Statement of Intent:Family Migration (London:TSO,2012) 5.
6ibid,4.
7Explanatory Memorandum to the Statement of Changes in Immigration Rules Presented to Parliament on
13 June 2012 (London: TSO,2012).
8 S. Symonds, ‘Family migration’ (2012) 26 JIANL 220, 222.
9 HC Deb vol 547 col 771 19 June 2012.
10 ‘Theresa May vows to crush judges’ revolt by rushing through tough new laws’
Mail on Sunday 16 February 2013 at https://www.dailymail.co.uk/news/article-2279842/
Theresa-May-Home-Secretary-vows-crush-judges-revolt-rushing-tough-new-laws.html.
106 © 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2022) 85(1) MLR 105–132
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