Parliament Legislates, the Courts Unpick: How Judicial Review Became Immigration Policy's Real Author

The Verdict Parliament Did Not Deliver

In November 2023, the United Kingdom Supreme Court ruled unanimously that the government's Rwanda asylum partnership was unlawful. The judgment, delivered by Lord Reed, held that Rwanda could not be considered a safe third country for asylum seekers given the risk of refoulement — the return of individuals to countries where they face persecution. The ruling effectively nullified a centrepiece of the previous Conservative government's immigration strategy, one that had consumed years of political capital, hundreds of millions in preparatory expenditure, and two pieces of primary legislation. Not a single removal flight had taken off. The courts had rendered the policy inoperative before it could be tested.

This was not an isolated event. It was the culmination of a pattern that has characterised British immigration law for the better part of two decades: Parliament passes enforcement measures, the executive attempts to implement them, and a combination of judicial review, European Convention on Human Rights (ECHR) litigation, and interpretive creativity by the courts progressively narrows or eliminates the operational space in which those measures can function.

A Systemic Pattern, Not a Series of Accidents

The Rwanda judgment was the most visible episode, but the underlying dynamic predates it considerably. The Nationality and Borders Act 2022 sought to differentiate between asylum seekers who arrived through legal channels and those who arrived irregularly — a distinction with clear precedent in international law and the Refugee Convention's own provisions regarding sur place claims. Courts and tribunals progressively eroded the distinction through individual case decisions. The Illegal Migration Act 2023, which sought to establish a duty to remove those arriving illegally and to limit suspensive appeals, faced immediate legal challenge before it could be brought into force.

The use of interim injunctions by the European Court of Human Rights — most notably Rule 39 measures, which are not legally binding under the Convention but which the British government treated as binding — halted multiple removal flights to Rwanda in 2022. The legal status of those injunctions was never definitively resolved in domestic law. The government complied anyway. The precedent set was significant: an administrative mechanism of a supranational court, with no formal standing in British domestic law, effectively suspended executive action endorsed by Parliament.

At the domestic level, the Administrative Court's workload in immigration and asylum cases has grown substantially. According to Ministry of Justice statistics, judicial review applications in immigration matters accounted for the largest single category of Upper Tribunal judicial review cases throughout the early 2020s. Many of these cases do not succeed on their merits, but the volume and the suspensive effect of interim relief mean that litigation functions as a delay mechanism independent of its ultimate outcome. A removal that is delayed by eighteen months of procedural challenge is, in practical terms, a removal that does not occur.

The Constitutional Question That Must Be Named

The orthodox legal response to this critique is straightforward: courts are not overriding Parliament; they are applying the law Parliament has made, including the Human Rights Act 1998, which incorporated Convention rights into domestic law. If Parliament dislikes the outcomes, it is open to Parliament to repeal or amend the Human Rights Act, to withdraw from the ECHR, or to pass legislation that explicitly excludes judicial review in specified circumstances. The courts are doing their job. If the job has expanded, that is because Parliament gave it to them.

This is a coherent argument, and it deserves a direct response rather than dismissal. The conservative counterpoint is not that judges are acting in bad faith. Most are not. It is that the cumulative effect of Human Rights Act jurisprudence, expansive interpretations of Article 8 (the right to family and private life), and an increasingly activist posture in the Upper Tribunal and Supreme Court has produced a de facto constitutional settlement that no Parliament explicitly endorsed. The Human Rights Act was passed with the expectation that courts would apply Convention rights in a relatively bounded way. What has emerged over twenty-five years is a judicial culture that treats Convention rights as a floor from which to construct increasingly elaborate entitlements, many of which have no clear textual basis in the original Convention.

The right to family life, for example, was not designed by the Convention's drafters as an obstacle to deporting foreign nationals convicted of serious crimes. It has become precisely that in a significant number of cases. The right to an effective remedy, similarly, was not designed to generate a litigation ecosystem that renders large categories of enforcement action practically unworkable. The gap between what Parliament intended and what courts have constructed is not a gap that can be attributed solely to legislative carelessness.

What Reform Looks Like

A serious conservative constitutional agenda on this question involves several distinct but related reforms. First, the Human Rights Act requires substantive revision to rebalance the relationship between Convention rights and parliamentary sovereignty — not repeal, necessarily, but a clear statutory statement that courts must interpret Convention rights compatibly with the public interest in immigration control, and that proportionality assessments must give substantial weight to Parliament's democratic judgment about enforcement priorities.

Second, the scope of suspensive appeals in immigration cases needs to be genuinely limited. The current system, in which an appeal or judicial review application automatically suspends removal in most cases, gives the litigation process itself a coercive power over executive action that is entirely disproportionate to the merits of the underlying claim. A model in which suspensive effect is granted only upon a threshold showing of arguable merit — rather than automatically — would preserve access to justice while eliminating the strategic use of process as a substitute for substance.

Third, and most fundamentally, Parliament needs to be willing to use its sovereignty explicitly and unambiguously. The Rwanda judgment turned partly on the question of whether Rwanda was factually safe. A statutory declaration that a named country is, for the purposes of asylum law, to be treated as safe — combined with an ouster clause excluding judicial review of that designation — would test the limits of parliamentary sovereignty directly. Courts would face a stark choice between applying the statute and openly asserting a power to override primary legislation. That confrontation, uncomfortable as it would be, would clarify the constitutional position in a way that the current evasion does not.

Labour has shown no appetite for any of this. The Rwanda scheme has been abandoned. The Illegal Migration Act's removal duty has been suspended pending review. The government's preferred posture is to negotiate with the ECHR rather than to assert domestic primacy. That may be a defensible policy choice. It is not a defensible constitutional settlement.

When courts become the effective authors of immigration policy, democracy has not been protected — it has been politely circumvented.