Lord Sandhurst KC and Anthony Speaight KC
The Lady Chief Justice (LCJ) has attracted considerable attention for publicly criticising two leading politicians – the Leader of the Opposition and the Prime Minister. Speaking to the press on 19th February, she said she was “deeply troubled” by an exchange between the two at Prime Minister’s Questions the previous week:
“Both the question and answer were unacceptable”.
This was a follow up to her delivery of prepared remarks in which she deplored “a mounting campaign of attacks on judges”.
She was asked about these concerns when she attended the House of Lords Constitution Committee last week. Jonathan Ames, writing in Times Law, interpreted her as having "effectively doubled down on her criticism of Sir Keir Starmer and Kemi Badenoch". To us, by contrast, it seemed that she was rowing back on her criticism of the political leaders, without wanting to admit that she was taking anything back. “Inaccurate reporting” was her repeated complaint.
Her worry about security threats to members of the judiciary is clearly genuine and so should properly be of concern to all of us. But it is not ideal to have so senior a judge launching a broadside at political leaders, even if politically balanced, and then leaving observers confused as to whether she is repeating it or not. It is worthwhile, therefore, taking a moment to unscramble the real issues in the case which gave rise to the row.
The case concerned a family living in Gaza. The Home Office had refused them entry clearance to come to the UK. So had the First-tier Tribunal (FTT). But the Upper Tribunal (UT), which provides an appeal for errors of law, rather than a review of facts, determined in their favour.
At a human level, we are happy that this unfortunate family will be able to come to Britain. The father has had an “anti-Hamas profile” in Gaza. The family’s home was destroyed by an Israeli air strike. Since then with their four children they have been camping in a succession of refugee areas. The father’s brother has lived in the UK for nearly 20 years and would give a degree of welcome here.
But the legal ramifications of the UT’s decision extend beyond an outcome of safety for one family. The more the decision is studied, the further it can be seen to reach. The Gazans could not bring themselves within any category entitled to migration into the UK. Instead, the UT’s decision was on the basis that a balancing exercise under Article 8 came down in their favour. To put what the case shows starkly: the specific provisions of immigration law can be trumped by a judge’s assessment that an Applicant’s family life interests would be disproportionately harmed by their rejection.
There had been press reports that the Palestinian family had been allowed entry under the scheme for Ukrainians. That was incorrect. To this extent the LCJ was justified in complaining about inaccurate reporting. The family had drafted their application on a form for use by Ukrainians. But that was only because there was no form applicable to Gazans. The reason there was no form was because there is no Gaza scheme. You might think that if Gazans – or, indeed, suffering people from any of the many other war-torn parts of the world – cannot bring themselves within other established routes to entry, such as those related to employment, professional skills or the like, that would mean that they have no legally enforceable right to entry. This case shows that you would be wrong.
That is where the Gazans’ case justifies the attention which it has received. If the report that they had been held to have an enforceable right of entry under the Ukraine scheme caused surprise, the fact that they have an enforceable right of entry when there is no scheme at all is surely equally surprising.
In fact, the Home Office did not feel able to dispute that Article 8 could trump specific immigration law. The Home Office argued only that the FTT’s weighing of the balance against entry was defensible. Since the brother residing in the UK had not seen his Gaza relation for 17 years the merits of the family life contention were not of the strongest: that, perhaps, suggests that the hurdle for those relying on Article 8 is not very high. So, the principle revealed by this case is world-wide, and potentially applicable to innumerable cases.
What then follows in terms of comment in the public forum? It would be deplorable if a politician were to suggest that the UT judges reached their decision in bad faith; or to make a personally offensive characterisation of an individual judge. But to say that the outcome was “wrong” is perfectly justified. It is an observation on a state of the law revealed by a decision.
If one now turns to examine what Kemi Badenoch and Sir Keir Starmer KC actually said, one finds that both of them were speaking of an unacceptable outcome being produced by the legal system and that neither were personally criticising any judge. The full text of the exchange is set out at the foot of this post to enable readers to form their own judgments.
In our opinion the crucial passages were these. Badenoch’s initial question was: “Are the government planning to appeal on any points of law?”. After Starmer had not given an answer to the reasonable and relevant question, her follow-up was:
“If [the Prime Minister] plans to appeal, the appeal might be unsuccessful and the law will need to be changed. If he does not appeal, the law will definitely need to be changed.”
That passage makes it abundantly clear that what Badenoch was raising was whether the state of the law was satisfactory or needed to be reformed.
Starmer’s words were equally clear that that was what he, too, was talking about:
“The home secretary is already looking at the legal loophole that we need to close in this particular case.”
This was in many ways a remarkable answer. For the only “loophole” revealed by the case – and one might think it more of a wide double-gateway – is the susceptibility of immigration law to Article 8 override. One way of changing that would be the admittedly blunt instrument of legislating that the Human Rights Act is not applicable to the exercise of immigration powers. The Conservative government had started to do that. The Labour government is scrapping those Conservative provisions.
There may also be more targeted reforms which could close “the loophole”. Most of us are content for the Home Secretary, as a matter of discretion, on compassionate grounds to have power to admit individuals outside of situations of entitlement. But ought the route of appeal to tribunals to be available against the non-exercise of such discretion? Or can the list of public interest matters in s.117 B Nationality, Immigration and Asylum Act 2002 be enlarged? Or can Parliament legislate to define the circumstances in which family reunifications fall within Article 8 and in which they do not?
Conservatives should now be actively examining such targeted reforms. In the meantime, they must now remind the Prime Minister of his “loophole” answer time and time again.
This case may, in fact, be an example of a UK Court interpreting the ECHR more broadly than Strasbourg. It does not support an argument that the UK withdrawing from the ECHR would assist. While it is true that, if the Gazans’ applications had failed, they could have taken their case to the Strasbourg court, it is unlikely that that court would have ruled in their favour. In the leading case of Abdulaziz & Ors v UK, Application no. 9214/80 at paragraph 62 that court stated that Article 8’s protection of family life “presupposes the existence of a family”, which is normally a cohabiting couple or their children. As Harry Gillow, a barrister with specialist knowledge of public law, has written this week:
“If two siblings who have not seen each other for 17 years can be considered to share ‘family life’, then the barrier to such a finding in other cases is very flimsy indeed.”
To return finally to the LCJ. Perhaps one should not make too much of one ill-judged comment. Nonetheless, there is a constitutional issue here. We live in a free country and claim free speech. A tendency which has concerned many of us in recent years has been creeping pressures that this or that should not be said. Attacks on the integrity of our judges are rightly off-limits for political leaders. But criticising judgments is different from criticising judges. Judgments are criticised by academics all of the time. Politicians have the same prerogative.
Full exchange in PMQs on 12 February 2025 between the Prime Minister and the Leader of the Opposition regarding this case
Kemi Badenoch: The Conservative government established the Ukraine family scheme. In total, more than 200,000 Ukrainians – mostly women, children and the elderly – have found sanctuary in the UK from Putin’s war. However, a family of six from Gaza have applied to live in Britain using this scheme and a judge has now ruled in their favour. That is not what the scheme was designed to do. This decision is completely wrong, and cannot be allowed to stand. Are the government planning to appeal on any points of law and, if so, which ones?
Sir Keir Starmer: Let me be clear: I do not agree with the decision. The leader of the opposition is right that it is the wrong decision. She has not quite done her homework, however, because the decision in question was taken under the last government, according to their legal framework. However, let me be clear: it should be parliament that makes the rules on immigration; it should be the government who make the policy. That is the principle. The home secretary is already looking at the legal loophole that we need to close in this particular case.
Kemi Badenoch: The prime minister did not answer the question. If he plans to appeal, the appeal might be unsuccessful and the law will need to be changed. If he does not appeal, the law will definitely need to be changed. He talks about a decision made under the previous government, but it was not made by that government; it was made by the courts. The issue we are discussing today is about judicial decisions. We cannot be in a situation where we allow enormous numbers of people to exploit our laws in this way. There are millions of people all around the world in terrible situations. We cannot help them all and we certainly cannot bring them all here. Will the prime minister commit to bringing forward that new legislation or amending his borders bill?
Sir Keir Starmer: I have already said that the home secretary has already got her team working on closing this loophole. We do not need to wait for that; we are getting on with that, because we are taking control…
Lord Sandhurst KC is the Chair of the Executive Committee of the Society of Conservative Lawyers and former Chair of the Bar Council in 2005. He sits as an excepted hereditary peer on the Conservative Benches of the House of Lords, where he is an Opposition Whip and Spokesman on Justice and Home Affairs.
Anthony Speaight KC is the Chair of Research of the Society of Conservative Lawyers. He is also a Visiting Professor of Law at Surrey University and a Bencher of Middle Temple.
The Society of Conservative Lawyers, an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters and the views expressed in its publications are only those of their authors, and not necessarily held by all members of the Society or by the Conservative Party. The views expressed in this post are those of the authors alone, who take sole responsibility for all errors and omissions.