Imagined Loopholes

Last month, the Upper Tribunal for Immigration and Asylum granted six displaced Palestinians entry into the UK to stay with a British family member. After their home in Gaza was destroyed by an Israeli airstrike, the family, anonymised by the court for their own protection, took refuge at the al-Mawasi ‘humanitarian zone’. From there, in January 2024, they applied for entry to the UK. The Home Office rejected their application and the First-Tier Immigration Tribunal dismissed their appeal. On further appeal, the Upper Tribunal reversed the decision, with the two immigration judges holding that the family, who faced ‘a high risk of death or injury’ if they remained in Gaza, were entitled to come to the UK under Article 8 of the European Convention on Human Rights, which protects the right to family life.

According to the prime minister, this judgment was ‘wrong’. Asked about it by Kemi Badenoch at Prime Minister’s Questions this week, Keir Starmer told the Commons: ‘I do not agree with the decision. The leader of the opposition is right that it is the wrong decision.’ He had already tasked the home secretary, he said, with ‘looking at the legal loophole we need to close in this particular case’. Yvette Cooper, sitting to Starmer’s left, nodded along.

Starmer and Badenoch both appeared to labour under the misapprehension that the Palestinian applicants had won entry via a ‘loophole’ in the Ukraine Family Scheme. Passed by the previous government, this gave Ukrainians who had been invaded and made homeless by Russia a route to the UK inaccessible to Palestinians who had been invaded and made homeless by Israel. Badenoch implied that, following the Upper Tribunal’s decision, this demarcation would be eroded. ‘We cannot be in a situation,’ she said, ‘where we allow enormous numbers of people to exploit our laws in this way.’

In Badenoch’s case, the misapprehension is regrettable, but not inexplicable. She is more interested in picking fights and grabbing headlines than in grappling with the minutiae of legal judgments. In Starmer’s case, however, as a silk and former director of public prosecutions, any misapprehension is inexplicable unless it is deliberate. He raised a laugh from the government benches when he said that Badenoch hadn’t done her homework. But he seems not to have done his, either. The decision had nothing to do with the UFS (which in any case closed to new applicants nearly a year ago) or some imagined loophole, and everything to do with the ordinary implementation of human rights law. The Palestinian applicants knew they weren’t entitled to entry under the UFS: they used the UFS form only because, as the Upper Tribunal judge Hugo Norton-Taylor observes in his written decision, that was ‘in accordance with [Home Office] policy with regard to applications for entry clearance outside the rules’.

All the same, the Home Office rejected their application in the first instance because ‘the requirements of the Ukraine Family Scheme were not met’; it ‘was not satisfied that there were compelling, compassionate circumstances justifying granting leave outside of the rules’; and there was no ‘resettlement route for Palestinians’.

Reviewing this decision, the First-Tier Tribunal concluded that while there was genuine family life between the appellants and their sponsor, it did not take a ‘normal and natural’ form. Given this, even though the appellants ‘were living in a situation which was “extremely and “unjustifiably” harsh’, the connection was not enough. The tribunal rejected their appeal, with the judge finding that the non-traditional nature of the family relationship counted against them, particularly given the absence of any formal resettlement scheme. Instead, he held that

the creation in effect of resettlement policies for conflict zones is for the government and parliament. It has not been shown that the failure to make such a policy is unlawful, and in that context the public interest is in respecting that public policy decision.

The Upper Tribunal, however, disagreed with the lower court’s interpretation of the law. Whether the form of family life was ‘model’ or ‘normal and natural’ was irrelevant. The question for the court was whether family life existed. Even if the relationship fell outside some ideal model, such ‘abnormality’ did not mean the ‘relationships concerned were inherently less deserving’.

In much the same way, the lower court erred in putting emphatic weight on the existence – or lack – of a resettlement scheme and what its absence meant for the ‘public interest’. ‘We make it clear that this is an Article 8 family life case and we are not treating it as some form of disguised protection claim.’ The absence of a resettlement scheme for Palestinians was ‘irrelevant’, Norton-Taylor writes, and the appellants were not trying to argue that its absence ‘was in some way unlawful on public law grounds’. Not only was the judge at the First-Tier Tribunal ‘wrong to have taken the absence of a resettlement scheme into account at all’, but his doing so ‘had the effect of requiring the family to show something more, simply because they were residing in a conflict zone’.

In the Commons, Badenoch tried to pick a fight over the European Convention, suggesting that ‘new legislation is needed to clarify the right to a family life in Article 8’ and describing Starmer as ‘too busy defending the international human rights law framework’. If only he were. Instead, harping on the alleged legal loophole, he echoed the decision of the First-Tier Tribunal: ‘It should be Parliament that makes the rules on immigration; it should be the government who make the policy.’

Starmer’s response is of a piece with his government’s approach to asylum seekers and refugees. Rather than reversing the Conservative government’s failed decade and a half of seeking to deter asylum seekers by running a dysfunctional, hostile asylum system, Labour has doubled down on its predecessor’s policies. Little has been done to address the underfunding of the tribunal system or to create safe routes for asylum seekers. The focus has been on ‘deterrence’, and nothing but. The latest way to punish those who risked their lives to come to Britain, in the name of discouraging others from doing the same, is to bar anyone ‘who previously entered the UK illegally’ from ever becoming a British citizen.

In recent weeks, much has been made of Starmer’s friendship with Richard Hermer KC, the liberal barrister he elevated to the Lords to serve as attorney general. Badenoch at PMQs quoted Maurice Glasman (another Labour peer and donor) describing Hermer as the ‘archetype of an arrogant, progressive fool who thinks that law is a replacement for politics’, forcing the government to elevate international law and human rights over pragmatic politics. To judge by recent policy, this is an influence honoured only in the breach.