Judges have taken control of Britain’s borders

Who decides who gets to come to the UK? It is now abundantly clear that control over Britain’s borders is no longer held by the British government or our parliament – institutions that, whatever their faults, are at least accountable to the British people. Instead, decisions about migration, asylum and borders are now largely the domain of unelected judges and activist lawyers – people who are accountable to no one and are under no obligation to even consider the national interest.

Few cases better illustrate this yawning democratic deficit than a judge’s recent decision to allow a Gazan family to resettle in the UK via a scheme that was intended for Ukrainian refugees. As the Telegraph reports this week, the family of six applied for resettlement last year, but their claim was refused by a lower-tier immigration tribunal, which ruled that it should be up to parliament to decide who should benefit from the UK’s resettlement schemes (recent country-specific schemes have also covered Afghanistan, Hong Kong and Syria). This ruling was then overturned by upper-tribunal judge Hugo Norton-Taylor. His judgment, published at the end of January, cites the European Convention on Human Rights and, specifically, the Article 8 ‘right to a family life’. (The Gazan family at the centre of the case have a brother in the UK who they have had no face-to-face contact with for 17 years.)

Norton-Taylor’s judgement is a masterclass in judicial activism. The Home Office, contesting the case, warned that allowing Gazans to resettle via the Ukraine Family Scheme would open the ‘floodgates’ to applicants – not only from Palestine, but also from potentially any conflict zone around the world. The judge decreed that this was not ‘a relevant consideration’. In any case, ‘even if it was capable of relevance’, he continues, it would be ‘speculative and misconceived’ to suggest that others might spy a loophole for getting into Britain. The judge also ruled that the rights of the six Gazans should outweigh any considerations of the broader ‘public interest’ at all.

In perhaps the most brazen judicial power-grab of all, Norton-Taylor insisted that because there was ‘no evidence’ of a ‘deliberate decision’ by the UK government or parliament not to include Gazans in its resettlement scheme for Ukraine, it was therefore in his gift to effectively create such a scheme, via judicial fiat. He even took into account a 2024 letter from the Home Office that said explicitly: ‘The Home Office has not considered establishing a separate resettlement route for Palestinians to come to the UK.’ Norton-Taylor haughtily decreed this crystal-clear statement of government policy to be ‘ambiguous’.

Anyone who claims this is merely a dispassionate application of the law is deluding themselves. What we have witnessed here is the imposition of a new asylum policy by an unelected judge, with no regard for – I dare say even contempt for – democracy. This new policy raises several critical questions, about what it might cost to resettle potentially thousands of Gazans, where we might resettle them, how we might integrate them into British society, or if they will be expected to return after the war. It also has major security implications – after all, several Hamas-linked terror attacks targeting Europe have been thwarted since 7 October 2023. The notion that all of this should be taken out of the people and their representatives’ hands is an outrage.

The Home Office has promised to fight any future claims that breach its resettlement rules. It remains adamant that there is ‘no resettlement route from Gaza’. But it has clearly lost control. The debate we ought to be having, over how to balance the sympathies many citizens have with the plight of refugees from Gaza and elsewhere with the potential costs and risks of resettling large numbers, has been rendered irrelevant by a lone judge. No doubt in the knowledge that the public, already concerned about our dysfunctional asylum system, will firmly disagree with the policy he has imposed on us.

This has nothing to do with the rule of law. This is the most flagrant example yet of rule by judges – the judicial assertion of influence over vast swathes of politics. As former Supreme Court justice Lord Sumption has argued, courts have been empowered or have abrogated the right to create ‘non-consensual legislation’, bypassing politics and democracy.

The upshot is a growing divergence between policy and public opinion. Immigration tribunals seem to revel in rejecting common sense. This week, we learned of an Albanian criminal whose deportation was blocked on the grounds that his son doesn’t like ‘foreign’ chicken nuggets. A Jamaican drug dealer who beat his ex-partner in front of his children must also stay in Britain, a court recently ruled, because his daughter is questioning her gender. A Congolese man who sexually abused his own stepdaughter and her cousins, and is still considered a risk, has been allowed to stay in the UK thanks to his all-important ‘right to a family life’.

This is what we get when we allow an activist judiciary, egged on by activist human-rights lawyers, to run amok. No doubt many involved in these cases are patting themselves on the back for being so kind and caring towards ‘vulnerable’ migrants, but the cumulative effect of these absurdities is to undermine the case for a generous – but sane – asylum policy. Using the law to bypass politics is certain to generate a huge backlash.

And it’s not just affecting immigration. As Sumption puts it, all kinds of ‘areas that were once thought to be outside the purview of the courts, such as foreign policy, the conduct of overseas military operations and the other prerogative powers of the state, have all one by one yielded to the power of the judges’. In 21st-century Britain, it is down to judges to decide what infrastructure we can build, what energy policy we should pursue, even how much we should get paid.

Politicians are not innocent bystanders in all this, of course. They are responsible for the myriad laws, regulations and reforms that have transferred power from parliament, the government and civil society over to the legal system. Human-rights law, equality law, environmental law and international law tend to be the main culprits.

And many in the political class actually welcome this state of affairs. Lord Hermer, the Labour government’s attorney general, vowed last month to never challenge any ruling handed down by the European Court of Human Rights. He sees the Strasbourg court and the international human-rights framework as ‘the cornerstones not merely of Western civilisation but of civilisation as such’. It seems that the current Labour government, from fellow human-rights lawyer Keir Starmer downwards, has an almost religious faith in the infallibility of the judiciary, international law and the human-rights regime.

The case of the Gazan refugees needs to be a wake-up call. Whatever one’s views are on asylum or migration, this ruling proves, beyond doubt, that our elected representatives are no longer in charge of who is let into the country. Democracy, the national interest and the needs of British citizens are unlikely to get a look in under this tyranny of judges and lawyers.

Fraser Myers is deputy editor at spiked and host of the spiked podcast. Follow him on X: @FraserMyers.