The ‘human rights’ regime has flipped democracy on its head

If someone is in Britain illegally, should a history of persistently sexually harassing women make it easier or harder for him to stay in the country? Should joining a terror group, or being a paedophile, bolster or hinder an asylum claim? Incredibly, Britain’s immigration judges have found themselves on the wrong side of all of these questions. The result is a migration policy that is not only dysfunctional and at odds with public opinion, but bordering on the deranged, too.

An Afghan who had been convicted of indecent exposure was granted refugee status back in 2020, not in spite of being a sex offender, but because he is a sex offender. His ‘sexually disinhibited behaviour’, and the fact he ‘continues to act inappropriately towards females’, the court agreed, might expose him to ‘ill-treatment’ back in Afghanistan.

A Nigerian woman, who tried and failed to claim asylum eight times, succeeded on her ninth attempt – all thanks to her decision to join a terror group. In December last year, the presiding judge even acknowledged that the claimant was not a sincere supporter of the Indigenous People of Biafra, a proscribed terrorist organisation in Nigeria, but had joined up solely ‘in order to create an asylum claim’ to help her stay in the UK.

A Zimbabwean paedophile was due to be deported in 2021, but a judge blocked the proceedings, fearing that his ‘criminal record for child sex offences’, among other things, would leave him likely to face ‘substantial hostility’ from the authorities in Zimbabwe.

Such absurdities invariably arise from judges’ interpretations of the Human Rights Act 1998 and the European Convention on Human Rights (ECHR), which the UK signed up to in the wake of the Second World War.

The so-called convention rights have attained the status of holy writ among the political class and the judiciary. According to defenders of the human-rights regime, to be sceptical of the ECHR is to want to turn Britain into Vladimir Putin’s Russia (which was expelled from the convention after its invasion of Ukraine). Worse still, to query any application of human-rights law is supposedly to reject the lessons of Nazi Germany, given the ECHR’s framers set out to ensure that Hitler’s crimes could never be repeated. Winston Churchill played a major role in its inception, having opened the Hague Congress in 1948, which later gave rise to a range of European supranational institutions, the ECHR among them.

The ECHR’s articles often sound reasonable and unobjectionable on paper. In practice, they have led to some truly perverse decisions in British courts. What right-thinking person could object to the ‘prohibition of torture’, or the prohibition of ‘inhuman or degrading treatment’, as enshrined in Article 3? Yet it is this provision that established, in effect, a ‘human right’ to avoid deportation for that Zimbabwean paedophile and Afghan sex offender. Is it really reasonable to say that this is precisely what Churchill had in mind? Does anyone seriously believe that depriving a pervert of a passport would put us on a slippery slope towards setting up concentration camps?

The Article 8 ‘right to a family life’ was established primarily to prevent the state’s intrusion into the family. Sensible enough, you might think. But this provision has also wreaked havoc when it comes to immigration and asylum. It is the main culprit behind a string of baffling cases that have come to light in recent weeks. Take the Albanian criminal who couldn’t be deported in part because his son doesn’t like foreign-made chicken nuggets. Or the Jamaican drug dealer who must stay in the UK because his daughter is questioning her gender.

More politically explosive was last month’s ruling that six Gazans should have the right to resettle in the UK under the same terms of a scheme the government had set up for refugees from Ukraine. The ‘right to a family life’ came into play here because the Gazan family had a brother living in Britain. The fact they had had no face-to-face contact with him for 17 years was apparently of no import to the judge.

The Gaza resettlement case shows the alarming extent to which activist judges and lawyers, armed with human-rights law, have taken control of the UK’s migration policy. The ruling handed down by Hugo Norton-Taylor, an upper-tribunal judge, makes no efforts to disguise its political bent. Norton-Taylor assumes it is in his gift to effectively create his own refugee resettlement scheme, claiming there was ‘no evidence’ of a ‘deliberate decision’ by the UK government or parliament not to include Gazans when it created a scheme for Ukrainians in the wake of Russia’s 2022 invasion. He even haughtily dismissed any considerations of the ‘public interest’ when deciding who should be allowed to come to Britain. Under his interpretation of the ‘right to a family life’, it seems the British government now has an active duty to relocate a family living 2,500 miles away to a country they have never stepped foot in.

It is a judgement so egregious, so obviously contrary to the will of the elected government and parliament, that even UK prime minister Keir Starmer, usually a fanatical enthusiast for all things ‘human rights’, felt the need to distance himself from it. When pressed on the case by opposition leader Kemi Badenoch during Prime Minister’s Questions last week, Starmer said the judge had made the ‘wrong decision’.

Tellingly, this fairly mild rebuke was enough to draw the ire of the judicial establishment. England’s top judge, Baroness Sue Carr, made an extraordinary intervention this week, condemning both Badenoch’s question and Starmer’s answer as ‘unacceptable’. According to the lady chief justice, the government must ‘respect and protect the independence of the judiciary’. Elected MPs, she said, also ‘have a duty to respect the rule of law’. What Baroness Carr seems to mean by this is that judges’ decisions should not be publicly questioned. That their activism in the courtroom, no matter how blatant or perplexing, should never be subjected to outside political challenge.

The anti-democratic arrogance of the lady chief justice, in slapping down our elected representatives, shouldn’t really surprise us. It is a feature, not a bug, of the human-rights framework, stretching right back to the immediate postwar period. For while we are often told that human rights were born of a need to prevent the return of fascist or Communist horrors, the framers of the ECHR had another fear at the forefront of their minds – namely, the rise of mass democracy. As Luke Gittos outlines in his book, Human Rights – Illusory Freedom: ‘The existence of a human-rights framework owes everything to postwar elites’ attempt to exert economic and political control over the heads of European peoples.’ It stems from a reactionary, elitist belief that democracy, if not reined in by an unelected elite, is little better than tyranny.

If the likes of Churchill were alive today, they would undoubtedly look askance at some of the individual decisions being made on the basis of the ECHR. But what the framers would certainly recognise is the chasm between what the general public expect from a government policy and what judges are delivering. That much, at least, was always what was intended.

When it comes to migration, the human-rights regime has succeeded in making policy almost laughably impervious to public opinion and democratic pressure. This is celebrated by today’s elites, who view the voting masses as reactionary, racist and irrational. But has the judicial takeover of our borders really resulted in a more rational, humane policy? I seriously doubt that anyone accountable to voters would defend granting asylum on the basis of ‘sexually disinhibited behaviour’.

We will never restore sanity to our migration policy until we restore democracy. That starts by recognising that this ‘human rights’ framework does more to defend the unaccountable rule of the judiciary than to defend the liberties and rights we consider fundamental.

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