Journal article 445 views
Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
Chris Rowe
The Modern Law Review, Volume: 85, Issue: 1, Pages: 105 - 132
Swansea University Author: Chris Rowe
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DOI (Published version): 10.1111/1468-2230.12673
Abstract
In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human...
| Published in: | The Modern Law Review |
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| ISSN: | 0026-7961 1468-2230 |
| Published: |
London
Wiley
2022
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| Online Access: |
Check full text
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| URI: | https://cronfa.swan.ac.uk/Record/cronfa63091 |
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| Abstract: |
In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. 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. |
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| College: |
Faculty of Humanities and Social Sciences |
| Issue: |
1 |
| Start Page: |
105 |
| End Page: |
132 |