The European Court has become positively immoral

Andrew Tettenborn I 2 January 2024 I  The Spectator World

Another new year, and on the very first day we hear of two cases where human rights law has made a laughing stock of our immigration system.

Gjelosh Kolicaj, an Albanian migrant given dual British citizenship after marrying a British woman (whom he later divorced), turned out to be a senior crime boss. After he got six years for money laundering, the Home Office said he should be stripped of his citizenship and deported. Immigration judges quashed the order: insufficient consideration had been given to his right to family life under article eight of the ECHR (from two children born here to a later wife) and a probation report suggesting a low (but not non-existent) risk of reoffending.

The second case concerns a Sudanese man whom the security services say is an Isis propagandist. Granted asylum and then British citizenship in 2015, he repaid us by continuing to foment terrorism, at the same time apparently paying regular visits to supposedly unsafe Sudan. In 2018 the Home Office removed his citizenship and began deportation proceedings. To no avail: last month the Special Immigration Appeals Commission restored his citizenship and allowed him to live here permanently since he might face death or torture if returned to Sudan, something that infringed his rights under articles two and three of the Convention. For good measure it also gave him lifetime anonymity. No one is allowed to call him anything other than ‘S3’.

These cases – involving, incidentally, an absolutely orthodox application of Strasbourg-style human rights principles – are an outrage. They allow claimants who deserve nothing from the UK to demand a protection they have no right to, unduly limit the freedom of those living here, and (being based on human rights) demand that this happen whatever our own electors may think. As such they strengthen the already overwhelming political case for the UK to leave the ECHR regime entirely, on the basis that its vital interests are fatally compromised. We need not repeat these arguments here.

Standing back, however, they also show something else important. The ECHR regime, once a fairly faithful reflection of common ideas of national decency, has as interpreted by the Strasbourg court become not simply divorced from orthodox political ethics, but in at least two ways positively immoral.

To begin with, it systematically erodes the important moral difference between intentionally harming others (nearly always wrong) and merely failing to prevent harm (far more nuanced and often entirely justified). One can sympathise with a convention requiring states to not deliberately mistreat those under their control, for instance by directly killing or torturing them, or intentionally breaking up their families. Indeed, that is what the ECHR as conceived in 1950 – aimed as it was at eliminating the most barbaric practices of the Nazis and fascists in the second world war – was meant to do. But neither Kolicaj nor S3 can complain of any such thing. No one is suggesting that the British state is deliberately harming them.

Unfortunately, this is a distinction that, in the view of human rights lawyers, is now largely irrelevant. Under their perverse political ethics, bad consequences such as torture or family break-up are just as unacceptable even if they are merely a necessary by-product of state action taken for other purposes. If this means that a state cannot exercise its moral right to protect its citizens from criminality or terrorism or exclude those who do not have its interests at heart, then that’s just too bad.

Secondly, human rights as now interpreted get worryingly close to eliminating an important idea. Suppose I do have a duty to admit someone into my house to protect them from a baying street mob outside. Surely I have the right to demand in return that they do not steal my wine, slash my pictures or insult my wife. If they abuse my hospitality I must have the moral right to eject them, even if I know that they will then be strung up by those outside. So too with states.

We are told that Britain has an honourable tradition dating from Victorian times of giving refuge to those fleeing persecution. So it has. But in the nineteenth century this was always subject to a balancing understanding: while here they were expected to behave. If they did not, no one doubted they might be asked to leave. This other side of the coin matters. In so far as the Strasbourg interpretation of the ECHR seeks to devalue or negative it, the answer must be straightforward. We have not only a political, but an ethical right to escape from this stultifying and immoral institution as soon as we decently can.

AUTHOR Andrew Tettenborn