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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...

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Published in: The Modern Law Review
ISSN: 0026-7961 1468-2230
Published: London Wiley 2022
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URI: https://cronfa.swan.ac.uk/Record/cronfa63091
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first_indexed 2023-04-06T08:27:26Z
last_indexed 2023-04-13T03:23:48Z
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spelling v2 63091 2023-04-05 Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’ 8d3ce3ec594158d0cf904d8b481cf70b Chris Rowe Chris Rowe true false 2023-04-05 LAWD 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. Journal Article The Modern Law Review 85 1 105 132 Wiley London 0026-7961 1468-2230 1 1 2022 2022-01-01 10.1111/1468-2230.12673 http://dx.doi.org/10.1111/1468-2230.12673 COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2023-07-17T15:07:33.7226970 2023-04-05T19:51:51.0586181 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Chris Rowe 1
title Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
spellingShingle Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
Chris Rowe
title_short Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
title_full Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
title_fullStr Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
title_full_unstemmed Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
title_sort Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’
author_id_str_mv 8d3ce3ec594158d0cf904d8b481cf70b
author_id_fullname_str_mv 8d3ce3ec594158d0cf904d8b481cf70b_***_Chris Rowe
author Chris Rowe
author2 Chris Rowe
format Journal article
container_title The Modern Law Review
container_volume 85
container_issue 1
container_start_page 105
publishDate 2022
institution Swansea University
issn 0026-7961
1468-2230
doi_str_mv 10.1111/1468-2230.12673
publisher Wiley
college_str Faculty of Humanities and Social Sciences
hierarchytype
hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
url http://dx.doi.org/10.1111/1468-2230.12673
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description 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.
published_date 2022-01-01T15:07:29Z
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