There are two approaches to immigration.  The legalist focusses on the migrant, a person seen as bearing legal rights to be asserted against the nation.  Legalism sees immigration as primarily a legal issue resolved by lawyers having recourse to law.  The democrat focusses on the nation, an organisation seen as having political interests with a territorial reach limited by borders.  Democracy sees immigration as primarily a political issue resolved by politicians engaging in a dialogue with the people.

Immigration policy since the mid-1980s has been shaped by governments adopting a legalist approach.  This approach is now so dominant that the UK has little effective control over its borders.  David Cameron’s pledge to the electorate in 2010 to reduce net migration into Britain to below 100,000 per year with ‘no ifs, no buts’ has been a significant failure.  Border control will only become possible if decades of legalism are replaced by a democratic approach to immigration that takes power away from lawyers and places it in the hands of politicians.

The rise of a legalistic approach to immigration is captured by the six immigration cases in the Judicial Power Project’s list of fifty ‘problematic’ cases.  The cases of Chahal (1996), Saadi (2008) and Jamaa (2012) show how legalism – underpinned by the European Convention on Human Rights (’the ECHR’) – came to dominate thinking in the European Court of Human Rights (‘the Strasbourg court’). In Huang (2007) the House of Lords established legalism’s sway over domestic immigration policy.  Rottmann (2010) shows that the same approach is prevalent in the European Court of Justice.  And the Supreme Court case of Quila (2011) illustrates how legalism is now enabling the judiciary to micro-manage immigration policy.  The ascent of legalism is best explained by looking at the who, how and why of this approach.

Who? judges or politicians

Chahal (1996), the earliest of the six immigration cases, is central to the who of legalism because it confirmed that immigration policy was no longer an issue primarily for politicians.  Chahal was actually the logical consequence of the Strasbourg court’s earlier decision in Abdulaziz in which the UK government – first before the European Commission of Human Rights (1983) and then before the Strasbourg Court (1985) – argued that immigration policy was a policy area that the ECHR had no jurisdiction over.  The European judges overcame this argument by stealth: whilst accepting that ‘the right of a foreigner to enter or remain in a country was not as such guaranteed by the Convention’, they concluded that the ECHR nevertheless gave the immigrant enforceable legal rights via the application of the right to respect for family life (article 8).  In Abdulaziz the article 8 rights of women living in the UK were used to enable the Court to declare that government policy, that had excluded their spouses, could be constrained by the law.  Abdulaziz was the case that started Strasbourg’s commitment to a legalist approach to immigration for it established that immigration policy was a matter for the law.

The significance of Abdulaziz was recognised by the UK House of Lords in Huang (2007) which observed how the ECHR of 1951 ‘did not for some years exert any significant influence on British law and practice in the immigration field’.   But the court recognised that Abdulaziz had opened the door to a legalist approach to immigration when noting that ‘eminent leading counsel on behalf of Her Majesty’s Government contended … that matters of immigration control lay outside the scope of article 8 so that no complaint based on the application of immigration control could succeed under that article … That argument was rejected and the applicability of article 8 to immigration control has since been accepted.’  Abdulaziz resolved the ‘who’ of immigration policy by establishing that judges, empowered by the ECHR, could impose limits on politicians.

The primacy of law in immigration policy was confirmed domestically by the House of Lords in the case of Huang (2007).  Given that immigration policy could be limited by law the UK’s top court had to decide whether law or politics was supreme.  It gave legalism a major shot in the arm when answering this question in favour of law.  In Huang two applicants for leave to remain in the UK did not qualify under government policy, as set out in the Immigration Rules.  But, ruled the House of Lords, ‘an applicant’s failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8’ (the right to respect for family life).  ‘The terms of the rules are relevant’ to whether a person has leave to remain, continued the court, ‘but they are not determinative’.  In other words the final say over UK borders rests, post Huang, not with politicians, who draft immigration policies and rules, but with lawyers applying the ECHR.

How? individual rights or collective interests

Having resolved the who of immigration policy in favour of law, legalism needed an organising principle with which to exercise this newly acquired power.  And since the 1980s it has found it by stressing individual rights at the expense of collective interests.   The cases of Chahal (1996) and Saadi (2008), on either side of the terrorist attacks of 9/11, illustrate how this skewing in favour of individual rights must happen even when pitted against the collective interest of national security.

In Chahal (1996) the Strasbourg court decided that Karamjit Chahal, an Indian citizen and failed asylum seeker, could not be deported from the UK even though two Home Secretaries since 1990 had decided that he ought to be deported to further the public good.  Douglas Hurd and then Kenneth Clarke made their decisions for political reasons having regard to national security and the international fight against terrorism: they considered that Chahal was directing support from London for Sikh terrorists in the Punjab.  However, the Strasbourg court decided that Chahal could not be deported because ‘the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration’ when confronted with substantial grounds for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 [anything upwards of inhuman or degrading treatment] if removed to another State’.

The key point established by Chahal was that the law skewed any balance between individual rights and collective interests in favour of the former.  Chahal’s legal right to avoid ‘ill-treatment’ was a right that ‘makes no provision for exceptions and no derogation from it is permissible … even in the event of a public emergency threatening the life of the nation’.  Hence, Chahal’s deportation was not permissible no matter what he was alleged to have done and no matter how, in the court’s words, ‘undesirable or dangerous’ his presence in the UK was considered to be.

In the post-9/11 era the UK government found the Chahal judgment so extraordinary that it tried to change it by intervening in the case of Saadi v Italy.  But by 2008 legalism had got such a hold on the Strasbourg court that even the terrorist atrocities in America in 2001 and in London in 2005 could not cause it to alter its approach.  The court reiterated its view that a bearer of legal rights could skew relevant considerations in favour of the individual and against the collective interests of a nation.  A balancing exercise was not appropriate the court said because ‘the prospect that [the potential deportee] may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return’.  The individual’s legal rights must trump all other interests; it was, said the court, inappropriate to consider ‘a balancing test’ between these individual rights and collective interests.

The championing of individual rights over collective interests was also evident in a third Strasbourg case: Hirsi Jamaa v Italy (2012).  The Italian government resolved to discourage criminal gangs involved in people smuggling and trafficking and was determined to save lives at sea by intercepting irregular migrants and returning them back to Libya.  In a speech to the Italian Senate on 25 May 2009 the Interior Minister noted how these interceptions at sea had caused irregular migration to decrease five-fold in May 2009 compared with May 2008.  The Strasbourg court recognised these political issues when noting that states forming ‘the external borders of the European union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers’.  The court added that it did ‘not underestimate the burden and pressure this situation places on the states concerned’.  But its commitment to the principle of championing individual rights meant that the actions of the Italian government had to be declared unlawful (with all the consequences that have been unfolding in the Mediterranean ever since).

Why? law or democracy

The tendency, when explaining the ascent of legalism, is to blame the judiciary.  But this would be to misunderstand the judiciary’s subservient role to politics.  The judiciary’s power is derived from the laws that politicians require them to use, particularly, in the immigration context, the ECHR and the Human Rights Act.  And despite the occasional gnashing of teeth by politicians directed at judges there remains little discussion in the UK over withdrawing from the ECHR and repealing the Human Rights Act as necessary preconditions for establishing control over the nation’s borders.  This problem pre-dates the coalition government.  For example, the Labour Party’s Home Secretary, John Reid, described the Chahal case as ‘outrageously disproportionate’ in 2007.  But it did not cause his party to seek to withdraw from the ECHR or to seek repeal of the Human Rights Act.

The ascent of legalism is best explained as a distrust of democracy that causes elites in politics and law to fear a democratic judgment on immigration.  The human rights project is premised on this distrust of the demos.  As counsel in Huang put it: the problem with ‘the democratic principle’ is that it puts matters ‘beyond the court’s competence’, hence the need for human rights to ensure that matters are beyond the people’s competence.  Or, as another barrister in Huang claimed, ‘the relative institutional competence approach is to be preferred to the democratic principle approach’.  This, he explained, required courts to take power away from the people and vest it in those with ‘the necessary relevant institutional competence by their long experience and expertise in … striking a fair balance between the public interest in immigration control and the circumstances of the individual case’.

In Huang the House of Lords accepted these anti-democratic arguments when it held that it was for the appellate immigration authorities (ie experts without a democratic mandate) ‘to decide whether the challenged decision [refusing leave to enter or remain] is unlawful as incompatible with a Convention right’.  In other words border control became a matter of law, not of politics, because the experts know better than the people.

The House of Lords dealt head-on with the argument that ‘the Immigration Rules and supplementary instructions, made by the responsible minister and laid before parliament, had the imprimatur of democratic approval and should be taken to strike the right balance between the interests of the individual and those of the community’.  Not so, said the House of Lords, for two reasons, each of which tends to undermine the basis for democracy.

First, the Immigration Rules and supplementary instructions are, the court said, ‘not the product of active debate in Parliament’ and in this sense they differ from housing policy which ‘has been a continuing subject of discussion and debate in Parliament over very many years’.  But the UK’s top court itself did not find this distinction credible when in 2010 it used the ECHR to trump housing policy (see Pinnock, case 27 of the fifty “problematic” cases). The UK’s top court was right to find nothing persuasive in the parliamentary debate argument because democracy is premised on the accountability of power to the people; it is not premised on whether a particular issue is debated in Parliament.

Secondly, the House of Lords in Huang found that immigration policy was not suitable for democracy because ‘non-nationals seeking leave to enter or remain are not in any event represented’.  This more fundamental objection to democracy undermines it by holding that people cannot be trusted to do the right thing: they are not capable, according to the House of Lords, of considering the interests of ‘non-nationals’, only experts learned in human rights laws have this wisdom and insight.  Hence, Huang decided that immigration policy may begin with a political opinion but it must end with a legal judgment, given by lawyers exercising their expertise in human rights.

Having gone on an anti-democratic romp in Huang it was only to be expected that the wisdom of experts was deployed in Quila in 2011 to overturn the Home Secretary’s immigration policy designed to combat forced marriage.  As Lady Hale put it: the ‘sole question is whether [the policy] was “necessary in a democratic society”.’  It was a question answered by five Justices sitting in court after hearing submissions from counsel learned in the law, and on the basis of what the law required.  Yet combatting forced marriage was, as Lord Brown (dissenting) observed, ‘largely a matter of judgment’.  In fact it should have been a question to be answered, not by judges, but by politicians hearing, not submissions on the law, but arguments on right and wrong.  Combatting forced marriage, like all issues of immigration policy, needs to be determined by politicians exercising a democratic mandate; it should not be about judges deciding what the law requires.

Legalism is prevalent in immigration policy for the reason promoted in Huang: because non-nationals have no representatives in Parliament immigration policy is regarded by a demos-fearing elite as an issue for experts wearing wigs and gowns citing from human rights textbooks and legal precedents.  In fact the six ‘problematic’ cases of Chahal, Huang, Saadi, Rottmann, Quila and Jamaa have all been wrongly decided.  Not because the human rights textbooks and precedents have been misunderstood, but because legalism has been allowed to trump democracy.  Each of these decisions needs to be overturned, not by another court, but by the judgment of the people, resolving to assert their right to determine immigration policy.  As the government lawyer submitted to the Strasbourg court in the mid-1980s: immigration policy is ‘inadmissible ratione materiae’.  Or, as the people might say in the twenty-first century: immigration policy is for the demos, not the courts.

The who of immigration policy needs to be returned to politicians, the how needs to re-establish the centrality of collective interests and the why must be premised on a renewed faith in democracy.  In short, instead of law being master of the people the people must become master of the law.  The people must be able to determine immigration policy.

Jon Holbrook is a barrister and regular contributor to spiked. Follow him on Twitter: @JonHolb