When the government announces a ‘crackdown’ or some new tough policy on immigration or asylum, it is important to recognise that what this means (at most) is that migrants will be treated in accordance with the new policy unless their Convention rights require that they are treated otherwise; at most, since often when the policy is implemented there will be an explicit exemption for some groups, such as people entitled to disability benefit or the elderly. Naturally, ministers prefer not to spell this out, but it is unfortunate that 25 years after the introduction of the Human Rights Act that so many commentators, as recently shown in the response to the plans to reform aspects of the asylum system, seem unaware of (or for strategic reasons prefer not to make) this essential point.

Along with vague plans to reform the tribunal system hearing appeals and vague plans to restrict access to hotels for some asylum seekers, the government announced in Restoring Order and Control in November 2025 a clear policy to extend settlement for refugees to 20 years, building on the already announced (and partially implemented) policy to restrict refugee family reunification rights, coupled with a commitment to ‘explore’ reforming their welfare entitlement. On any view, these plans are important, but the impact they will have on the lives of refugees – if they do not qualify for another route or exemption – will primarily depend upon the extent to which they cannot rely on their Convention rights to sponsor family members etc. This was widely overlooked in media coverage, where much time was spent on what would happen to, as it was put on the Today programme, ‘the children of people who are removed many years into their stay in Britain’? The obvious answer, which the minister did not give, is that in this situation the refugee parents would have a very strong claim to remain on the basis of Article 8 in the (not especially likely) event that the government decided not to renew their leave to remain on the grounds that they were no longer at risk of persecution or serious harm in their home country.

Similarly, the Conversation published two informative pieces by academics who specialise in immigration and refugee studies which both claim that ‘under the new plans, refugees will not be allowed to apply for family reunion, unless they are able to transfer to a work or study visa’. But this is not true: refugees who do not meet this new pathway nor any other potential exemption will still be able to rely on their Convention rights, ie Article 8, in order to benefit from family reunification in the UK. This is no mere technicality: given, as briefly discussed below, the Strasbourg jurisprudence almost all refugees will have a strong Article 8 claim.

The government unsurprisingly is perfectly aware of how immigration rules and policies interact with human rights law. The November 2025 statement notes that:

Article 8 rights are currently leading to high numbers of arrivals from those who would not otherwise have the right to live in the UK. Over half of family and private life applications made from within the UK are granted leave on the basis that refusing them would be a breach of Article 8, even though they don’t meet the minimum income and English language requirements.

The government may find this regrettable, but it is the inevitable result of how the government chooses to make immigration policy whilst the Human Rights Act 1998 remains on the statute book. Given the mention of the minimum income requirement, the government appears to have in mind the family reunification rules for British citizens (and foreign nationals with settlement), but the same principles apply whether the issue is migrant access to welfare benefits, a foreign national resisting removal or deportation or, following the new reforms, refugees looking to sponsor family members or extend their leave to remain in the UK.

If the government sets immigration rules which diverge from the requirements of the Convention, then this means that some human rights claims will succeed despite of, or ‘outside the rules’. If the government sets requirements that approximate or exceed Convention rights then the number of successful claims will be few or nil. If the government sets rules that diverge more sharply from the Convention (eg if it did not exempt, as it currently does, people on disability benefits and Carer’s Allowance from the minimum income requirement), then more people will succeed with an Article 8 claim. Until the pause announced in September 2025, refugees did not need to rely on their Convention rights to sponsor spouses or children to enter the UK – unlike British citizens and other foreign nationals – because the policies in place exceeded the requirements of the Convention (ie, it was essentially an unconditional right with no requirement to have somewhere to live or the means to support their family members).

This system, to be sure, is not a simple case of people either enter (or remain or access welfare benefits or resist removal etc) through the front door, ie via the explicit immigration rules, or via the back door, relying on their Convention rights. High visa application fees can deter applications when people do not meet the rules even if they have a very strong human rights claim (albeit, the poorest do not need to pay). The courts also attach ‘weight’ to decision-making in accordance with the immigration rules, whilst the government has tried to elicit further deference from the courts by incorporating Convention rights into the rules as ‘exceptions’, using language like ‘unjustifiably harsh’ or ‘very compelling’ to describe the circumstances when, in the government’s view, an Article 8 claim should succeed. But the legal obligation, given the Human Rights Act, on both the Home Office official making the initial decision and a tribunal on appeal is to uphold an individual’s Convention rights and not – when there is a clash – to enforce the government’s immigration rules. As the Supreme Court put it in Agyarko:

Ultimately, [a tribunal or court] has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question [or the refusal to grant leave etc] against the impact on private and family life.

The last Labour government also required all immigration decision-makers to treat children’s best interests as a primary consideration, which reinforces the strength of the human rights claim when children are affected and helps explain some of the infamous decisions reported in the newspapers concerning ‘foreign criminals’ who successfully resist deportation.

Of course, the government could choose to enact its new policies through primary legislation, making use of parliamentary sovereignty, if it wishes to infringe the Convention rights of refugees or whoever else (and it can disapply s.3 HRA to prevent any amelioration by the courts). The last Conservative government took this approach after its initial Rwanda scheme – enacted through a mix of immigration rules and Home Office policy guidance and so legally subordinate to the HRA – was found to be Convention incompatible by the Supreme Court in AAA. But this does not appear to be on the agenda, ie the government is taking the usual approach that all administrative decision-making as to who can enter, remain, receive welfare benefits etc will be Convention compatible and any policy or immigration rule will be ‘disapplied’ in the individual case if it would infringe the Convention. Indeed, its reforms to the tribunal system appear premised on the continued availability of appeals for human rights claims, whilst it would be a remarkable about turn to end the Rwanda scheme (potentially, a very potent deterrent to claiming asylum in the UK) and then disapply the Human Rights Act in order to limit access to hotels or prevent Article 8 family reunification claims.

But, it might be replied, the government also included in its statement plans to introduce ‘domestic reform’ of Article 8 (as well as pursue reform of Article 3 at the level of the Council of Europe). As a result, refugees might still be able to make a human rights claim to reunite with their families etc, but post the forthcoming changes the Article will mean something different – presumably, less migrant friendly – from what it does now. However, all the government appears to be committing to is strengthening the ‘public interest’ considerations that have been the law since the Immigration Act 2014 and require the courts when making an immigration decision to ‘have regard’ to various factors such as applicant’s inability to speak English or financially support themselves. This type of reform does not alter the s.6 HRA obligation on decisions-makers to act compatibly with Convention rights and for this reason has been deemed Convention compatible by the courts, both domestically and in Strasbourg.

Reopening a debate on legislative reform of Article 8 does though seem like a risky move for a government seeking to maintain compliance with the Convention. If all the government has in mind is strengthening ‘have regard’ to ‘have strong regard’ or to the listing of a few additional public interest considerations, then this may invite mockery and create political pressure for fundamental change. When the Immigration Act was introduced Dominic Raab and other MPs (correctly) highlighted the limits of the reforms and argued that if Parliament wanted to ensure that foreign criminals were deported then Article 8 needed to be disapplied in the immigration context. The government now seems to be essentially agreeing with Raab’s diagnosis of the Act, but then refusing to employ the obvious – and likely only – remedy (to repeal the HRA or at least disapply some aspects of it). Perhaps the government knows how to square this circle by very significantly diminishing the effect of Article 8 whilst remaining in compliance with the Convention, but this is certainly not evident in the plans announced so far. The fact that the statement gives (almost equal) attention to the non-issues of defining what counts as a family (on which see Kirsty Hughes) or restricting people from abroad from making human rights applications (the online application form must be in the name of the UK relative? the IP address that clicks send must be in the UK?), is more suggestive of a government ‘flooding the zone’ than one with a worked-out and impactful plan.

Human rights as ceiling

Assuming that the government does not follow the Raab blueprint and repeal the HRA or disapply Article 8, if we want to understand the impact of the proposed reforms, then we need to examine how the new rules will interact with the Convention rights of refugees. Space is obviously limited here, but in the below I try to set out a few relevant observations.

First, whilst it is possible that some refugees may succeed in challenging the 20 year wait and that due to their special circumstances settlement will be granted early ‘outside the rules’, such successes are likely to be rare given that the courts have held that ‘the withholding of ILR is not in itself an interference with article 8 rights’. Rather it is ‘the stress and anxiety associated with the grant of very short periods of leave and its impact of the consequent uncertainty on family and private life’ that is the cause of the interference, but that whilst this interference is ‘real’ it is also ‘limited’.

The most important issue for refugees will be whether this policy change just amounts to a longer wait, or whether it is a prelude to the government denying limited leave to significant numbers of refugees and attempting to remove them back to their home countries. The latter though seems (relatively) unlikely. The policy has been presented in the media as enabling the return of refugees if their country becomes safe. But this is not the issue. The test for whether a refugee can be returned is if there is no longer a real risk that they will be persecuted or suffer serious harm. In recent years asylum applicants from a few countries, which would usually be considered safe, have had high asylum acceptance rates in the UK. For Vietnam, for instance, the initial grant rate (ie not including successful tribunal appeals) ranged from 52% to 73% between 2019 to 2023. Some informed commentary seems to also accept that many asylum-seekers from Vietnam are economic migrants, whilst others would no doubt claim that the acceptance rates accurately reflect the risks faced by many Vietnamese (based on the country guidance, largely a mix of risk of political persecution and serious harms inflicted by illegal money lenders), correctly pointing out the fact that a country may generally be considered safe, peaceful or stable etc does not prevent the creation of large numbers of genuine refugees. However, even if it is assumed that many Vietnamese granted asylum are not fleeing persecution or serious harm, the high grant rate is likely not explained by Home Office officials (and tribunal judges) being naïfs or, as sometimes alleged, ‘open border’ or ‘woke’ activists, but because the standard of proof that must be satisfied by an asylum-seeker is a low one – ie real risk or ‘reasonable degree of likelihood’ and not balance of probabilities (albeit, the fact that the grant rate has been so much higher for Vietnamese and some other nationalities in the UK than other EU countries means that this cannot be the only factor).

Refugees can also seek to remain in the UK based on a different type of risk from the initial grant of refugee status, eg because of their activities in the UK, such as a religious conversion, or, as in one infamous case, the asylum-seeker who after numerous failed asylum, human rights and trafficking claims finally succeeded after joining a group deemed a terrorist organisation in Nigeria. The judge, unsurprisingly, did not believe that her political beliefs were genuine, but due to activities like protesting outside the Nigerian Embassy – the applicant drew to the judge’s attention that she would have been captured on CCTV – there was still a real risk of persecution if she was returned. Clearly, the new rules will incentivise such conduct amongst a cohort who will have already shown sufficient gumption to enter and successfully claim asylum in the UK.

If though a refugee does find their leave to remain in the UK refused on the grounds that they are no longer at risk, will they have a strong Article 8 claim to remain in the UK? The courts adopt a ‘balance sheet’ approach when determining an Article 8 claim, weighing the relevant factors against each other. The public interest in a denial of leave or removal can be outweighed by factors such as family ties (including the ties and nationalities of the refugee’s family members), wider social relationships and work. This includes for people with ‘appalling’ immigration histories, including fraudulent applications, as well those who commit serious criminal offences. The public interest considerations that favour removal will generally be weaker for refugees since typically they will not have been convicted of criminal offences nor will there be other negative factors weighing against them, such as prolonged periods of living or working unlawfully in the UK.

Second, the Article 8 claim for refugees to sponsor family members will be especially strong. In several cases, the ECtHR has held that their family reunification rights should be more favourable than for other foreign nationals. Arguably, even now – without the creation of the new route for refugees – this is still the case in the UK since refugees are treated preferentially to foreign nationals without settlement and equivalently to foreign nationals with settlement and British citizens. If this de facto continues (ie a new route is not created for refugees which requires a significantly lower or no income threshold or no language requirement etc), then it seems inevitable that most refugees will succeed with an Article 8 claim when they do not meet the rules. As mentioned above, according to the government over half of human rights applications from British citizens and other foreign nationals made within the UK for family reunification are currently succeeding. But a refugee’s claim will usually be (much) stronger since in almost all cases there will be no other country in which family life can be maintained, since the refugee cannot return to their home country (in the Strasbourg jargon, there will be ‘insurmountable obstacles’). That is, unlike with the British citizen, the government cannot partially justify the interference with Article 8 by claiming that family life can continue, even with some hardship, in the spouse’s country. When children are involved, the claim will be especially strong not least because the children are likely to be based in a country (or a camp) where the quality of life is particularly bad. Whether the claim will be strong enough for eg a family member to enter when the refugee sponsor has no job and/or no suitable accommodation is questionable, but it is very difficult to envisage circumstances where it is simply the fact that their wages are too low, or the spouse does not speak English, that will be able to justify an interference with Article 8. In a recent case, Switzerland had denied family reunification to refugees who had failed to meet an income requirement (only applied to refugees who were not forced to leave their home state), but the ECtHR found that Article 8 was infringed for three of the four applicants who had made reasonable efforts to seek work, even though they were still largely dependent on welfare benefits.

Conclusion

A peculiar quality of the public debate on asylum and refugee policy in the UK is that two of, perhaps the loudest voices are the government and ‘refugee advocacy groups’ who are both incentivised to exaggerate the harshness of any policy reforms. Hence, reforms that seem reasonably sensible if modest: a rule requiring refugees to have some means to support and somewhere for their family members to live before sponsoring them to come to the UK; trying to (somewhat) diminish the incentives for people to claim asylum (especially those who arrive on work and study visas) by providing a set of rights that are no longer vastly superior than for foreign nationals here on other routes; strengthening incentives for refugees to work and integrate etc, but all with the proviso that all the reforms will be compatible with the Convention rights of every refugee, are described as ‘morally repugnant’, ‘immoral’, ‘a direct attack on their fundamental rights’ etc.

Either way, sensible or repugnant, what surely is the case is that the policies announced so far will not have a significant deterrent effect, especially for those who enter via ‘small boats’. The government’s description of the UK as the asylum-seekers’ ‘golden ticket’ succeeded in provoking many, but there is a sense in which this is true. Now that the UK is outside the EU, it provides a second chance for asylum-seekers whose claim is rejected by an EU country (as they cannot apply twice within the EU). That applications are increasing in the UK whilst falling in EU member-states suggests that this is increasingly realised. As one NGO worker put it in a report released this month:

Many of the families I worked with in Calais and Dunkirk had left Germany or other EU countries after years of living there. After being refused, there was no hope of successfully applying for asylum in France or another EU country. The UK seemed like the only option.

Who would be put off from a second chance of receiving asylum by the fact that if successful you might have to rely on Article 8 to sponsor a family member and there is a (slim) chance that you might have to rely on Article 8 to remain in the UK long-term?

Chris Rowe is a Lecturer at Swansea University

(Suggested citation: C. Rowe, ‘Human rights as ceiling: the government’s asylum reform proposals’, U.K. Const. L. Blog (19th December 2025) (available at https://ukconstitutionallaw.org/))