Falling into Line? The Hostile Environment and the Legend of the ‘Judges' Revolt’

Abstract

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform’ Article 8. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the Government’s aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham’s Article 8 test in which the reasonableness of any family member relocation was a central consideration was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.