IT has long been my view that, to get to grips with immigration in this country, the UK must denounce the ECHR.
In my Flexcit plan, first published in full in 2015, I dealt at length with the issue; the current version has 20 references to the Convention.
In one section (6.5, p.116) entitled ‘Addressing the core issues’, written in 2014 – before even the EU referendum – I noted that, even then, the greater proportion of immigration into the UK came from non-EU countries, the largest single group coming from India.
Interestingly, I cited as one of my sources the left-of-centre Independent, which on October 23, 2014, published an article headed: ‘Britain admits nearly three times more migrants from outside the EU than any other member state, statistics show’.
This information came from Eurostat, the European Commission’s own statistical body and, said the paper, its disclosure ‘will raise fresh questions over David Cameron’s much-repeated pledge to bring annual net migration down to tens of thousands. The latest official estimate is 243,000 in the 12 months to March, up from 175,000 during the previous year.’
In detail, nearly 2.4million resident permits had been issued by EU countries in the previous year (2013). Some 30.7 per cent of them had been granted to people heading for Britain, where a total of 724,200 people from outside the EU had been given permission to remain in the UK, a 15 per cent rise on the previous year.
This, according to Eurostat figures, was nearly three times as many as the 279,300 admitted to Poland, which was the second most popular destination. Italy accepted 244,000, France 212,100 and Germany 199,900 and Spain 196,200.
Already, therefore, non-EU migration was an issue, one that was to get worse once Brexit was ‘done’ and the ‘Boriswave’ opened the floodgates. But then, as now – as I wrote in Flexcit – a significant fraction of the inflow was driven by the family reunification entitlement, whereby migrants who acquire residential status are able to bring in spouses and close relatives, including parents, grandparents and siblings.
The flow under this provision, I noted, was substantial, accounting for 17 per cent of UK totals. Ostensibly, I added, this was mandated by Directive 2003/86/EC, except that the UK had opted out of this provision, so no blame could be directly attributed to the EU.
However, the law that was being applied was the right recognised in the European Convention of Human Rights (ECHR), to which Britain was (and still is) party.
But, indicating the complexity of the skein of laws and treaties to which we were bound, there was also the European Convention on the Legal Status of Migrant Workers (1977), as well as the United Nations Convention on the Rights of the Child (1989), which ‘encouraged’ member states to promote the right to family reunion.
As a contracting party to the ECHR, the UK was (and is) bound by precedents arising from judgements of the court in Strasbourg. In order to relieve itself of this obligation, I averred, Britain may have to extract itself from membership of the Council of Europe, which is the sponsoring body of the ECHR.
Alternatively, it could denounce the Convention, invoking Article 58, thus indicating the need to coordinate domestic and international policies in a post-Brexit environment.
There is, of course, much more to the issue than just that, and I deal with some of the complications, although I have never updated the work to take account of our current situation.
One thing is clear, though: even outside the EU, the government is still bound by the provisions of the ECHR, under the general doctrine of pacta sunt servanda, embodied in the 1969 Vienna Convention on the Law of Treaties, an agreement which has since assumed the status of customary law, giving it effect over states that have neither signed nor ratified the Convention.
Having watched the debate from afar, it is with a certain weariness that I observe the many actors in this debate arguing for ‘withdrawal’ from the ECHR, while few seem prepared to acknowledge the complexities and consequences of so doing.
Latest in the long line, it seems, is Kemi Badenoch, in charge of the Conservative Party for the time being. According to The Times, she is preparing to announce plans to order UK judges to ignore the ECHR and bar migrants who arrive in Britain on small boats from claiming asylum, a stance which would also require walking away from the UN refugee convention.
But rather than go the whole hog, and formally denounce the relevant agreements, she is apparently to stop short of explicitly saying Britain under the Conservatives would pull out of the ECHR ‘amid fears the move would be too divisive within the party’.
Having declined to make that commitment, she seems to be suggesting a fudge, amounting to being prepared to ‘disengage’ from international courts and institutions, on the grounds that they have been taken over by activists and autocratic regimes.
But, in the extremely unlikely event that she ever becomes prime minister, Badenoch’s administration would be directly bound by pacta sunt servanda and to instruct British courts to disallow the agreements would put her directly in breach of the UK’s international obligations.
However, in the manner of Stalin’s response to warnings about the displeasure of the Vatican in respect of his actions against Roman Catholics, when the Soviet dictator contemptuously asked, ‘how many divisions does the pope have?’, it is true to say that the European court, and indeed its sponsoring organisation the Council of Europe, is somewhat lacking in the military department.
In the absence of a military strike coordinated by Strasbourg, therefore, there is nothing that would physically prevent ‘Badenough’ taking her action. But, and it is a very big but, she would bring upon herself a sh*tstorm, the like of which would most probably attempt to bring her government to a halt.
Even then, a powerful and self-confident government could ignore this and plough on regardless, but the very fact that she is having to defer to the ‘One Nation’ wets in her party says it all. It is the ‘enemy within’ which would exert the most profound effect.
In brief – discounting state action, which is a subject in its own right – the response could be wide-ranging.
Individuals in the UK, for instance, could bring cases to domestic courts, arguing that government actions violate the Human Rights Act, which incorporates the ECHR into UK law. Courts could ignore Badenoch and issue declarations of incompatibility, if legislation conflicts with ECHR rights. This could especially apply in devolved administrations, which could directly challenge Westminster’s authority.
Then, individuals could petition the European court directly after exhausting domestic remedies, potentially leading to rulings against the UK and orders for remedies (e.g. compensation). Such individuals might expect NGOs, human rights organisations, and activists to launch campaigns to pressure the UK government, both domestically and internationally, to comply with ECHR obligations.
Individuals, doubtless supported by the Socialist Worker tendency, could organise protests or public movements to highlight violations, influencing public opinion and potentially pressuring the government to reverse course.
In the round, it is unlikely that the half-cocked measures that ‘Badenough’ seems to be proposing would succeed, and even to suggest that route simply displays her weakness. She – or her successor – needs to bite the bullet and commission a full-scale study into the implications of detaching the UK from the international order.
If it were to be done, ’tis best it is done quickly, but it must also be done well. This half-hearted fudge serves no-one’s interests.
This article appeared in Turbulent Times on June 5, 2025, and is republished by kind permission.
