Will the ECHR open Britain up to every Gazan?

Does the UK government have any control over who can enter the country? This week, a UK immigration court published its decision to allow a Gazan woman to come to Britain, against the express wishes of the Home Office, citing her ‘right to a family life’ under the European Convention on Human Rights (ECHR). This follows a similar case from January, when a family of six from Gaza was granted the right to resettle in the UK under a refugee scheme intended for Ukrainians, also by using the ECHR.

In both cases, immigration judges held that the Convention rights of these Gazans trumped any right of our elected government or parliament to decide the UK’s migration rules. In both cases, the judges rejected the Home Office’s warnings that a precedent could be set that would allow Palestinians – or indeed any of the hundreds of millions of people living in conflict zones worldwide – to claim a right to resettle in the UK. Yet the fact that two tribunal judges, in relatively short succession, have ordered Palestinians to be allowed into the UK on similar human-rights grounds, and in the teeth of Home Office opposition, at the very least suggests a pattern, if not a firm precedent. What is certain is that, under the writ of the ECHR, such decisions have become a matter for judges, not the elected government.

This evasion of democracy has a cost. Indeed, however sympathetic we may be to any individual case, it is striking how little weight the immigration courts give to the potential impact of their decisions on wider British society. Neither judgment pays any consideration to what it might cost to resettle potentially thousands of Gazans, should a precedent be established. The judges didn’t need to think about where we might resettle them, how we might integrate them, or whether they will be expected to return when the war is over.

Any sane asylum policy surely has to balance a desire to be generous to those in danger with the potential security risks to the UK. Several Hamas-linked terror attacks targeting Europe have been thwarted since 7 October 2023. And Hamas is notorious for hiding among Gaza’s civilian population. Yet nowhere does this factor in the judges’ remarks in either case. Proof, if it were needed, that decisions taken above the heads of the people, without democratic debate, can end up being very ill-considered.

Indeed, a flurry of other recent tribunal decisions has shown just how out of touch, if not deranged, an unshackled, unaccountable judiciary can be. Asylum has been granted on the most tenuous grounds imaginable, from having a speech impediment to having a son who likes foreign chicken nuggets. Even hardened criminals have been able to claim the right to stay in Britain indefinitely.

What all these cases illustrate is the rise of what former Supreme Court justice Lord Sumption calls ‘non-consensual legislation’. Judges and courts have been empowered, or have assumed the right, to bypass politics and democracy. They can impose their views on the public without any fear of pushback or reprisals. They can wield texts like the ECHR for blatantly political ends, such as opposing any and all controls on immigration or expressing support for Palestine.

This is not the rule of law, it is the rule of activist judges. And it is undermining both our borders and our democracy.

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