Harry Gillow is a public and EU law barrister. He previously worked for Sir Bill Cash MP on the Brexit campaign.
The media conclusion, following last week’s PMQs, was that Starmer trounced Kemi Badenoch.
She asked him about a recent decision of the Upper Tribunal to allow a Gazan family entry under the resettlement scheme for Ukrainians fleeing Putin’s war. He responded that the decision was wrong, and he would close the loophole in the law: game, set and match, they said.
But appearances can be misleading. Starmer ignored the key question that Badenoch asked – and she was right to press him for the answer he doesn’t have.
On any close reading of the Upper Tribunal’s (the “UT”) decision it had very little actually to do with the Ukraine scheme. Yes, the applicants had filled out their forms under that scheme, but that was on the basis that it was the closest analogy to their position; they openly acknowledged that they couldn’t qualify under the scheme (or, indeed, any provision of the Immigration Rules).
The UT’s decision wasn’t, therefore, that the Ukraine scheme should be extended to Gazans, but rather that the existence of the scheme was of no real relevance at all to the decision to admit the applicants. This is rather worse even than the reported problem, but to understand why requires a detailed look at what the UT (and the First-tier Tribunal, the “FTT”, before it) decided and why.
The background to the case is this.
The first applicant had a brother in the UK, the “sponsor”, who he sought to join. The second applicant was the first applicant’s wife, and the remaining applicants were their children. The sponsor had come to the UK in 2007, and the sponsor and first applicant had not seen each other face-to-face for some 17 years since then. It was common ground the applicants weren’t entitled to enter the UK under the Immigration Rules or any other policy, including the Ukraine scheme. Their claim was, rather, that they were entitled to entry on the basis of compelling circumstances justifying leave to enter outside of the Rules. In this case, the applicants’ argument was that refusing them entry to the UK was a breach of Article 8 rights to family life.
You could be forgiven for being confused already: if the applicants were outside the UK, and the ECHR only applies to those in the UK’s jurisdiction, why was the UT considering their rights at all?
The answer lies in the doctrine established by the ECtHR and UK courts that Article 8 rights to family life are unitary – once you’ve established that ‘family life’ exists, then you have to look at the interests of every person sharing that family life from their own perspective, on the basis that danger to any individual’s interests is interference with ‘family life’ as a whole. So in the present case, although it was only the applicant’s brother, as their sponsor for the process, who was in the UK, since (the UT found) he shared ‘family life’ with the other applicants, the UT had to consider all of the applicants’ interests individually, and not just the direct effect of non-admission on the sponsor.
Here we come to another issue: why did the UT conclude that there was ‘family life’ in the first place? The first applicant hadn’t seen the sponsor, his brother, in person for 17 years and hadn’t made any previous attempt to join the sponsor in the UK. Despite this, the UT (and indeed the FTT before it) concluded that there was the kind of close relationship necessary for ‘family life’ to exist.
Having found that family life did exist, the UT went on to consider whether the refusal to admit the applicants was a proportionate interference with the Article 8 rights to that family life, taking the approach (as above) of looking at the interests of all of the applicants directly, rather than just focusing on those of the sponsor in the UK. It’s in this context that the UT considered the effect of the Ukrainian resettlement scheme. But rather than deciding, as reported, that this scheme should be extended to Gaza, the UT simply considered that the scheme was irrelevant, or to be more precise, that the existence of a specific scheme for Ukrainian resettlement added nothing to the general inability of the applicants to meet any requirement of the Immigration Rules. The FTT had made an error, the UT ruled, in giving any special weight to the existence of the Ukrainian scheme.
It is this element of the decision which has – understandably – caused the greatest outrage, and if the true logic behind it has been widely misunderstood, that doesn’t make it any less troubling.
The FTT had given great weight to the fact that the question of which (if any) resettlement schemes to make was one for Parliament and the Government; they had chosen to make one for Ukrainians, and (at least by implication) not chosen to make one for Gazans. The UT disagreed – the non-existence of a scheme was, it said, irrelevant to the appeal, where the only question was whether the applicants should be allowed entry outside the Rules to protect Article 8 rights; or, to put it another way, the absence of a specific scheme for Gaza counted no more than the inability of the applicants to satisfy the Immigration Rules generally. Moreover, said the UT, even had the absence of a scheme for Gaza been relevant, that absence was not evidence of a positive decision not to make a scheme.
The logic is deeply unpersuasive: where the government and Parliament have made resettlement schemes available to groups from particular conflict zones and not others, that’s itself an entirely straightforward indication of intention. The absence of certain schemes can’t reasonably be dismissed as lack of evidence for a positive decision not to make a scheme.
But leaving aside that, the true issue is far broader.
Whatever rules there are, whatever decisions about which schemes to make, which groups to admit or keep out, these are, the UT says, irrelevant in the face of a claim for admission on the grounds of Article 8 rights to family life. That should trouble us all. Whatever you think of the merits of this particular case, there will always be parts of the world suffering terrible violence or hardship. Many people in those areas will have family in the UK. The potential implications of a policy that would allow all those family members to escape to the UK is staggering.
The UT dismissed this reasoning; there had only been a small number of past applications for entry from Gazans since the conflict began, some 143 in total. Moreover, the Home Office’s argument that granting the appeals would open the floodgates to claims from those in similar situations around the world was “wholly speculative and misconceived”; many individuals with extended family in the UK would not be able to demonstrate the existence of family life in the first place.
Neither of those arguments, unfortunately, stands up.
First, the UT failed to engage with the idea that the limited number of entry applications from Gaza might be the result of a belief that any claim for entry would fail; it’s hardly a stretch to think that the successful outcome in this case might lead to far more speculative applications being made in future.
Second, the UT claimed that many applicants might struggle to demonstrate the existence of family life: this seems peculiarly myopic given the very liberal approach the UT was willing to uphold on precisely this question. If two siblings who have not seen each other for 17 years can be considered to share ‘family life’, then the barrier to such a finding in other cases is very flimsy indeed. Moreover, once there is a finding of ‘family life’, however tenuous, then as above, the interests of each person sharing that family life has to be looked at in their own right, not just the effect on the interests of the person actually in the UK. So this element of the UT’s reasoning is likewise of very little reassurance.
The UT appears, furthermore, not to have considered at all that its reasoning could be extended even further. Not only is there no principled distinction that can be drawn between individuals in different conflict zones around the world, if Article 8 can be used in this manner to allow admission from conflict zones, why not in other situations of terrible suffering – surely the logic of the UT’s position applies as much to natural disasters? What about government persecution? The effect of the UT’s decision is, followed through, that any family member of a UK resident in such a situation is entitled to escape here. The plight of those in such terrible situations may be appalling; does that mean the UK must admit all with a family connection to the UK?
These are policies for government, but it is the inescapable logic of Article 8 that prevents government actually making such policies. Until we’re prepared to face that head on, we’ll continue to see the stream of disturbing judgments that filled last week’s news. The ‘chicken nuggets’ case? An Article 8 decision Similarly the Pakistani paedophile who couldn’t be deported because of the effect on his children.
This is why Starmer’s response to Kemi Badenoch at PMQs was so unsatisfactory.
He committed to ‘closing the loophole’ – but how?
It’s difficult to believe that PM who’s spent his professional career as a human rights lawyer will have any real appetite for ECHR reform, let alone the direct clash with Strasbourg that any serious attempt to tackle these issues would likely involve. Kemi Badenoch was right to ask him the difficult question on Article 8 – and it’s clear Starmer has no answer.
Harry Gillow is a public and EU law barrister. He previously worked for Sir Bill Cash MP on the Brexit campaign.
The media conclusion, following last week’s PMQs, was that Starmer trounced Kemi Badenoch.
She asked him about a recent decision of the Upper Tribunal to allow a Gazan family entry under the resettlement scheme for Ukrainians fleeing Putin’s war. He responded that the decision was wrong, and he would close the loophole in the law: game, set and match, they said.
But appearances can be misleading. Starmer ignored the key question that Badenoch asked – and she was right to press him for the answer he doesn’t have.
On any close reading of the Upper Tribunal’s (the “UT”) decision it had very little actually to do with the Ukraine scheme. Yes, the applicants had filled out their forms under that scheme, but that was on the basis that it was the closest analogy to their position; they openly acknowledged that they couldn’t qualify under the scheme (or, indeed, any provision of the Immigration Rules).
The UT’s decision wasn’t, therefore, that the Ukraine scheme should be extended to Gazans, but rather that the existence of the scheme was of no real relevance at all to the decision to admit the applicants. This is rather worse even than the reported problem, but to understand why requires a detailed look at what the UT (and the First-tier Tribunal, the “FTT”, before it) decided and why.
The background to the case is this.
The first applicant had a brother in the UK, the “sponsor”, who he sought to join. The second applicant was the first applicant’s wife, and the remaining applicants were their children. The sponsor had come to the UK in 2007, and the sponsor and first applicant had not seen each other face-to-face for some 17 years since then. It was common ground the applicants weren’t entitled to enter the UK under the Immigration Rules or any other policy, including the Ukraine scheme. Their claim was, rather, that they were entitled to entry on the basis of compelling circumstances justifying leave to enter outside of the Rules. In this case, the applicants’ argument was that refusing them entry to the UK was a breach of Article 8 rights to family life.
You could be forgiven for being confused already: if the applicants were outside the UK, and the ECHR only applies to those in the UK’s jurisdiction, why was the UT considering their rights at all?
The answer lies in the doctrine established by the ECtHR and UK courts that Article 8 rights to family life are unitary – once you’ve established that ‘family life’ exists, then you have to look at the interests of every person sharing that family life from their own perspective, on the basis that danger to any individual’s interests is interference with ‘family life’ as a whole. So in the present case, although it was only the applicant’s brother, as their sponsor for the process, who was in the UK, since (the UT found) he shared ‘family life’ with the other applicants, the UT had to consider all of the applicants’ interests individually, and not just the direct effect of non-admission on the sponsor.
Here we come to another issue: why did the UT conclude that there was ‘family life’ in the first place? The first applicant hadn’t seen the sponsor, his brother, in person for 17 years and hadn’t made any previous attempt to join the sponsor in the UK. Despite this, the UT (and indeed the FTT before it) concluded that there was the kind of close relationship necessary for ‘family life’ to exist.
Having found that family life did exist, the UT went on to consider whether the refusal to admit the applicants was a proportionate interference with the Article 8 rights to that family life, taking the approach (as above) of looking at the interests of all of the applicants directly, rather than just focusing on those of the sponsor in the UK. It’s in this context that the UT considered the effect of the Ukrainian resettlement scheme. But rather than deciding, as reported, that this scheme should be extended to Gaza, the UT simply considered that the scheme was irrelevant, or to be more precise, that the existence of a specific scheme for Ukrainian resettlement added nothing to the general inability of the applicants to meet any requirement of the Immigration Rules. The FTT had made an error, the UT ruled, in giving any special weight to the existence of the Ukrainian scheme.
It is this element of the decision which has – understandably – caused the greatest outrage, and if the true logic behind it has been widely misunderstood, that doesn’t make it any less troubling.
The FTT had given great weight to the fact that the question of which (if any) resettlement schemes to make was one for Parliament and the Government; they had chosen to make one for Ukrainians, and (at least by implication) not chosen to make one for Gazans. The UT disagreed – the non-existence of a scheme was, it said, irrelevant to the appeal, where the only question was whether the applicants should be allowed entry outside the Rules to protect Article 8 rights; or, to put it another way, the absence of a specific scheme for Gaza counted no more than the inability of the applicants to satisfy the Immigration Rules generally. Moreover, said the UT, even had the absence of a scheme for Gaza been relevant, that absence was not evidence of a positive decision not to make a scheme.
The logic is deeply unpersuasive: where the government and Parliament have made resettlement schemes available to groups from particular conflict zones and not others, that’s itself an entirely straightforward indication of intention. The absence of certain schemes can’t reasonably be dismissed as lack of evidence for a positive decision not to make a scheme.
But leaving aside that, the true issue is far broader.
Whatever rules there are, whatever decisions about which schemes to make, which groups to admit or keep out, these are, the UT says, irrelevant in the face of a claim for admission on the grounds of Article 8 rights to family life. That should trouble us all. Whatever you think of the merits of this particular case, there will always be parts of the world suffering terrible violence or hardship. Many people in those areas will have family in the UK. The potential implications of a policy that would allow all those family members to escape to the UK is staggering.
The UT dismissed this reasoning; there had only been a small number of past applications for entry from Gazans since the conflict began, some 143 in total. Moreover, the Home Office’s argument that granting the appeals would open the floodgates to claims from those in similar situations around the world was “wholly speculative and misconceived”; many individuals with extended family in the UK would not be able to demonstrate the existence of family life in the first place.
Neither of those arguments, unfortunately, stands up.
First, the UT failed to engage with the idea that the limited number of entry applications from Gaza might be the result of a belief that any claim for entry would fail; it’s hardly a stretch to think that the successful outcome in this case might lead to far more speculative applications being made in future.
Second, the UT claimed that many applicants might struggle to demonstrate the existence of family life: this seems peculiarly myopic given the very liberal approach the UT was willing to uphold on precisely this question. If two siblings who have not seen each other for 17 years can be considered to share ‘family life’, then the barrier to such a finding in other cases is very flimsy indeed. Moreover, once there is a finding of ‘family life’, however tenuous, then as above, the interests of each person sharing that family life has to be looked at in their own right, not just the effect on the interests of the person actually in the UK. So this element of the UT’s reasoning is likewise of very little reassurance.
The UT appears, furthermore, not to have considered at all that its reasoning could be extended even further. Not only is there no principled distinction that can be drawn between individuals in different conflict zones around the world, if Article 8 can be used in this manner to allow admission from conflict zones, why not in other situations of terrible suffering – surely the logic of the UT’s position applies as much to natural disasters? What about government persecution? The effect of the UT’s decision is, followed through, that any family member of a UK resident in such a situation is entitled to escape here. The plight of those in such terrible situations may be appalling; does that mean the UK must admit all with a family connection to the UK?
These are policies for government, but it is the inescapable logic of Article 8 that prevents government actually making such policies. Until we’re prepared to face that head on, we’ll continue to see the stream of disturbing judgments that filled last week’s news. The ‘chicken nuggets’ case? An Article 8 decision Similarly the Pakistani paedophile who couldn’t be deported because of the effect on his children.
This is why Starmer’s response to Kemi Badenoch at PMQs was so unsatisfactory.
He committed to ‘closing the loophole’ – but how?
It’s difficult to believe that PM who’s spent his professional career as a human rights lawyer will have any real appetite for ECHR reform, let alone the direct clash with Strasbourg that any serious attempt to tackle these issues would likely involve. Kemi Badenoch was right to ask him the difficult question on Article 8 – and it’s clear Starmer has no answer.