In the 20th century, political extremism scarred Europe. In response, and under British leadership, the European Convention on Human Rights (the ECHR) was drafted to secure a better future and was a pillar of our democratic system for over 50 years. Today, however, the convention has become a bête noire of the right, blamed for protecting the undeserving and fuelling “mass immigration”.
This agitation has political origins. For too long discussion about migration was off limits. But the current debate is unhelpfully polarised and has thrown up some dud solutions. One is to walk away from the ECHR. Proponents of abandoning the ECHR claim that it, and the European Court of Human Rights in Strasbourg (which enforces the convention), prevent the state from removing or deporting “undesirable” foreign nationals, because to do so would allegedly breach their legally protected human rights.
This is a distortion. The convention regime applies some restraints, but these are modest. And ditching the convention – or the Human Rights Act, which gives it effect in domestic law – will not stop small boats crammed with asylum seekers arriving from France. Nor will it solve the migration conundrum. To establish better control, we need to rethink policy and cooperate with regional partners who remain committed to the ECHR.
The Chișinău Declaration, agreed on 15 May 2026 by Ministers of the Council of Europe – the body responsible for the ECHR – reflects that approach, opening the door to reinterpreting certain parts of human rights law. Across the continent, the relationship between human rights law and controls on migration is being interrogated. Committed to upholding sound ECHR principles, the UK should continue to help find solutions, not turn its back.
It is legitimate to question whether time-worn methods still work well. The Council of Europe (focused on human rights and the rule of law) and the EU (an economic and political union) – while separate institutions – are both rooted in the era of European history after the Second World War. In 2016, I concluded that over time, EU membership had drawn too much political and legal power away from the citizens it was there to serve, damaging our democracy. But the more limited ECHR system, involving the 46 Council of Europe members, encroaches less on national sovereignty and operates more in tandem with national institutions. For example, an adverse ruling by the Strasbourg court doesn’t change domestic law, unlike the EU’s Court of Justice in Luxembourg. States propose how they will comply with a ruling of the Strasbourg court until, through negotiation, an outcome is agreed.
Contrary to narratives from the right, a muscular immigration policy is not incompatible with this framework. Denmark provides clear evidence – hence the Home Secretary Shabana Mahmood’s recent fact-finding trip there. A signatory of the ECHR, Denmark historically welcomed migrants and asylum seekers until rising numbers created a backlash and it clamped down, hard. Draconian rules enacted by a left-of-centre government caused numbers to plummet – thereby, claims Mahmood, “saving social democracy”.
Outside the EU, the UK has multiple ways to control legal migration – although choices may have unintended consequences, as seen in the post-pandemic surge. Since then, visa restrictions including limits on bringing dependants have dramatically reduced the numbers of people granted entry. Illegal migration and the asylum system pose different challenges. Despite the small numbers involved, these are political hot potatoes for reasons relating to cost and control.
The rocketing cost of asylum support that our system sanctions – including the use of unsuitable and often squalid hotels – has exhausted public tolerance and led to riots. And many people perceive the continuing arrival of small boats as a sign of an impotent state. Photographs of French gendarmes watching languidly as over-filled dinghies leave the shore has exacerbated the anger. It is, incidentally, a myth that pre-Brexit, the UK readily returned asylum seekers to the EU under the Dublin Agreement. The mechanism’s commitment to family reunion meant the number of people transferred to the UK roughly matched those transferred out.
Aping the Danish model, Labour has resolved to make the “offer” of UK asylum “less attractive”. In future, protection will be temporary – after an initial 30 months, if a refugee’s country is deemed safe, they would be expected to return. And the existing right to be joined by family will be revoked. With an eye on the practice in other European countries, this is unashamedly a race to the bottom, albeit one permitted by the 1951 Refugee Convention. But what of those who come but fail in their asylum claim? Or have breached the terms of entry and become illegal? Almost by definition, removing and deporting people is difficult. Forcing unwilling people on to flights requires significant manpower and is fraught with risk. Specially chartered flights are costly.
Naturally in this scenario fundamental rights come into play. The 1951 Refugee Convention, and its protocols, established the principle of “non-refoulement”, now widely embedded in national and international law, including the ECHR. Non-refoulement prevents states from returning people to a territory where they face death, torture or inhuman and degrading treatment. Some consider the definition of “inhuman and degrading treatment” too widely drawn. They point to cases where poor prison conditions or inferior medical treatment in a receiving state have led judges to revoke orders to deport people.
This case law was one driver behind the Chișinău Declaration. A year ago, nine EU states led by Denmark and Italy wrote to the Council of Europe Secretariat to seek greater recognition of national governments’ right to control borders and manage migration. Under political pressure, the Starmer government allied with this position and supported the declaration, which states – among other things – that the bar for finding inhuman and degrading treatment should be high. It remains to be seen how judges responsible for applying the ECHR – in Strasbourg and national courts – respond to this invitation to consider “present-day conditions” and grant governments greater leeway to manage migration.
The impact of the declaration also depends on how widespread such cases really are. Figures in the UK suggest they are rare. According to the Bonavero Institute of Human Rights, in the UK in the five years to 2021, appeals against deportation succeeded on human rights grounds in less than 3.5 per cent of cases. Unfortunately, the dearth of Home Office data allows the debate to be framed by a few reported cases that some find objectionable but are, most likely, exceptional.
So if the case against the courts is overblown, why does the state remove or deport so few people who are present here illegally? Sometimes the receiving country refuses to take its citizens back. Mahmood’s answer is to stop issuing visas to those countries (currently including Afghanistan, Cameroon, Myanmar and Sudan). The threat, she maintains, has worked so far and further action is proposed against more countries. Aspects of our own system undoubtedly frustrate removal, not least by introducing huge delays. Processing claims takes years – rather than months – allowing people to melt away into the black economy untraced. Or they put down roots and start a family.
This presents the authorities – usually judges – with real dilemmas, such as a misleadingly reported case from June 2024, in which a young boy’s dislike of “the type of chicken nuggets that are available abroad” was listed in court documents as a reason for not deporting his father. The father, Klevis Disha, had come to the UK from Albania aged 15 and obtained indefinite leave to remain. As an adult, Disha became liable for deportation after serving a prison sentence for being in possession of cash known to be the proceeds of crime. As the law required, a court weighed the likely impact on Disha’s autistic British son – both of living with his father in Albania and, alternatively, of staying in Britain while losing his father to deportation. On the facts, the court ruled that either outcome would be “unduly harsh”, and so Disha was not deported. Some agreed, noting that if Disha had been removed while his son remained in the UK, a greater burden of care would fall on the state. But Nigel Farage said the ruling made him want to “weep” – presumably, because he favours automatic deportation in such cases.
For all the talk of permissive judges, in our system parliament ultimately calls the shots. Parliament makes the law. Judges interpret and apply it. Parliament has previously legislated to reduce a judge’s discretion: directing that immigration control is in the public interest and defences based on respect for family life must be exceptional. If a democratically elected government can garner support to further tighten immigration laws, it is constitutionally free to do so.
Mahmood has not agreed to remove judicial discretion altogether. But to limit claims, she proposes to confine the definition of “family” in this context to parents and their children. Other measures will streamline and speed up the system by requiring all claims (of trafficking, for example) to be made at the outset, rather than at the last moment before deportation. The number of available appeals will be reduced. Many working in the system consider these sensible and overdue reforms compatible with the ECHR.
Meanwhile the small boats continue to come, evoking strong feelings in part because, unlike those crouched in the back of container lorries, the arrivals are very visible. Experts suggest the only reliable way to reduce the pull of the Channel route is with French agreement. Either the French intercept boats before they leave or they agree to take people back. Measures to beef up security and enforcement on French beaches were agreed with France in April 2026. And a pilot arrangement agreed in 2025 sees the UK sending back one small boat arrival for every person processed legally in France and granted asylum in the UK. Both deals are underpinned by the ECHR. In other words, a condition of agreement is that both sides comply with the ECHR when handling migrants and asylum seekers. A wider re-admissions deal with European partners would be in UK interests. Again, a condition of such a deal will be compliance with ECHR norms. The current reality is that compliance with the ECHR will be a condition of any joint collaboration with European partners.
Other European states are looking to develop safe places in Africa (“return hubs”) where asylum seekers might settle – echoing the UK’s failed policy of sending asylum seekers to Rwanda. The UK policy was ruled unlawful because of shortcomings in the Rwandan asylum system. But with adequate time and investment, a safe system with well-trained officials and adjudicators may emerge in the region. If the UK is to collaborate with European partners, they will reasonably expect the UK to commit to respect fundamental rights by reference to the ECHR. Without such a commitment, a joint approach is unlikely to get off the ground.
It is not only migration policy where the ECHR underpins agreements that the UK cannot afford to jeopardise. For example, power-sharing and other arrangements in the Good Friday Agreement require the incorporation of ECHR rights in Northern Ireland. UK withdrawal from the ECHR would entitle the EU to revoke arrangements in the EU-UK Trade and Cooperation Agreement for cooperation in policing and criminal justice and the handling of data. Among other things, this would scupper joint efforts to disrupt people-smuggling gangs. It would place the improving UK-EU collaboration in peril. There is no good reason to do so.
The ECHR is not only an essential tool for working with our European neighbours – we also need it domestically. Politicians frequently favour unfettered power. But many of us citizens don’t favour granting it. We want the state to get things done (without being excessively risk-averse) – but subject to reasonable checks and balances, including the ECHR.
In recent decades the state’s reach has ballooned. We interact with it extensively and depend on services it provides – in health, law enforcement, education, child protection. For example, local authority social workers wield enormous safeguarding powers to remove not just children from their homes but elderly and disabled adults who are unable to take decisions for themselves. The right to family life ensures relatives have a say and their wishes will not be overridden without good reason.
After 97 people died following the Hillsborough stadium disaster, relatives and the survivors faced a wall of obfuscation, lies and false police accounts. It took a fresh inquiry, convened under the ECHR investigative duty, to finally uncover the systemic failings that caused the disaster: poor police planning, defective stadium design and a delayed emergency response. The same investigative duty helped uncover premature deaths resulting from appalling care at Mid-Staffordshire NHS Trust and, more recently, in maternity services around the country. And the convention gave a remedy to women drugged and assaulted by the serial “black-cab rapist” John Worboys, after a succession of police failures allowed him to evade detection and offend repeatedly.
It isn’t just the marginalised who assert convention rights. Most trenchant criticism of the ECHR has come from the right in politics. But intolerances associated with the left – such as “cancel culture” and “no-platforming” – have been defeated by the ECHR right to free expression. The regime works, provided that different parts of the system respect each other’s roles. Domestic courts generally defer to parliament. Similarly, the Strasbourg court is mostly mindful of its supervisory role, with national authorities primarily responsible for upholding convention rights. Since the Human Rights Act came into force, there have been very few Strasbourg judgments made against the UK, averaging a single adverse ruling in a year.
If the Strasbourg court considers that the human rights issues have been aired properly in a national court, and the outcome is clearly reasoned, it will rarely intervene. It often praises – and follows – decisions of the UK Supreme Court, and within the Council of Europe, the UK retains the influence of a founder of the institution and convention drafter, despite its noisy politics.
Of course, harmony does not always prevail and some cases give rise to sharp disagreement. “KlimaSeniorinnen” – a case about the adequacy of steps taken by Switzerland to tackle climate change – prompted powerful dissent by the UK judge, who considered that the court had overstepped its role. Others passionately disagree and argue the judgment demonstrates the court’s relevance, notwithstanding its arcane judicial dress. Meanwhile, some employment lawyers on the left criticise the court for not engaging with complaints about legislative limits placed on the right to strike. Disputes like these about the reach of our democratic institutions are not a sign of dysfunction – they are the essence of our liberal system.
At a time when the old order is being rewritten, the UK has a role to play holding the centre against extremism. Being able to adapt, reform and address real concerns without discarding democratic norms is not a simple feat. In America, unrestrained state power is undermining a great democracy. After Ice agents killed two US citizens in Minneapolis, central government declared officer immunity rather than begin an impartial investigation. Respecting the rule of law isn’t enough to keep a country strong and safe – hence the clamour to repair the UK’s degraded defences. But it is wrong to paint respect for human rights and the rule of law as weak.
Governing within agreed legal norms is what keeps liberal democracy alive. A government should not be enslaved by those norms: the world changes and new challenges emerge. Fresh approaches may be called for. It is the job of government to balance competing rights and interests – the individual and collective – and argue the case for action they propose. Courts should intervene only when truly fundamental rights are imperilled.
There is an international angle to this too. Working to raise global human rights and improve standards on corruption, governance, literacy and the treatment of women, children and minorities doesn’t just improve the lives of citizens far away. It also reduces the incentive for them to make dangerous journeys across the world searching for a better life. This – like the ECHR – should benefit us all.
Marina Wheeler’s latest book is A More Perfect Union: The Europe We Need (Weidenfeld & Nicolson)
[Further reading: The Europe dilemma]
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