Nearly a third of so-called “exceptional” asylum claims are now being upheld by judges. Among those granted permission to remain in the UK are individuals with serious criminal convictions, including cases involving sexual assault, drug trafficking, and even homicide.

One recent applicant had been convicted of sexually assaulting his stepdaughter; another was an Albanian national wanted for murder. Despite their records, both were allowed to stay — protected by legal frameworks originally designed to safeguard human rights, not shield those who pose a threat to public safety.

At the heart of this lies a single, slippery clause: Article 8 of the European Convention on Human Rights, which protests the right to a private and family life. Enshrined into UK law via the Human Rights Act, it has become the go-to backdoor for dangerous criminals and illegal migrants looking to dodge deportation.

The British legal system has been retooled — even optimised — to ensure as many people as possible are allowed to stay. Whether they’re long-term overstayers, convicted criminals, or bogus asylum seekers, there’s always another loophole, another interpretation, another appeal. Article 8 is one of the biggest levers in this machinery — and it’s being pulled more and more often.

So how did we get here? Two key factors: legal activism, and the strange, sprawling nature of Britain’s Common Law tradition. The Human Rights Act has been in force for nearly 25 years, during which time a specialised legal field has developed around it — supported in part by public funding. Many immigration and asylum lawyers have become highly skilled in navigating this area, adept at building persuasive cases and identifying legal routes to success. In many instances, they don’t need to rewrite legislation; instead, they work within its existing framework, gradually expanding its interpretation through incremental case law.

There is also no question that the character of the legal profession has changed. Replacing the traditionally conservative image of the barrister are younger lawyers who often view the law as a vehicle for social justice. The judges, too, tend to be more progressive and more receptive to the individual circumstances behind each case. This may have its upsides, but it also means that even questionable claims can end up being treated seriously. In some instances, outright fraud has become part of the game. Undercover investigations by the Daily Mail have exposed asylum solicitors openly fabricating claims — spinning false tales of torture, faking evidence of trauma, even inventing political affiliations to dodge deportation.

Here’s where the Common Law system makes things worse. Unlike the codified legal frameworks of, say, France or Germany, British law evolves case by case. It’s organic, interpretive, and open-ended. That gives judges enormous discretion — and in turn allows small, seemingly isolated rulings to snowball into full-blown policy shifts. This is how we end up with precedent serving as law, which can feel less defined than codified statutes.

That’s the rot at the heart of the system. Parliament makes the laws. But it’s the courts that decide what they mean. And when those courts are staffed by judges trained in the cultural echo chambers of elite legal academia, and guided by precedents shaped by activist lawyers, it’s hardly surprising the outcomes skew one way.

Britain’s legal priorities today are the inevitable outcome of a system that has let international norms hardwire themselves into our domestic legal order — beyond the reach of voters, and beyond the control of their elected representatives. If Labour were serious about fixing this, it would repeal the Human Rights Act. But it won’t, because, deep down, the party doesn’t see this as a problem. Politicians think they can square the circle: control illegal immigration while keeping the HRA fully intact. That’s a fantasy. And the more Labour clings to it, the more votes it’ll lose.

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Mike Jones is a political scientist, specialising in migration.

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