Because France is Not War

On the small boats crisis and the gap between law and justice

To establish what is just in each case is the function of the political art or skill.

-Leo Strauss

Human beings have a keen awareness of what Leo Strauss called the ‘gap between law and justice’. We imagine that there is a thing called ‘law’ and a thing called ‘justice’ and that the two things are distinct. But we also want them to be in close alignment. If the law appears to be producing outcomes that are not just in our eyes, we tend to think the law ought to be changed.

This is one of the ‘permanent problems’ (to use another Straussianism) in the human predicament, because, of course, we don’t universally agree on the content of ‘justice’, nor how law might be formulated to realise it even if we did. This leaves us in the world of messy controversies, compromises, inconsistencies and dispute. There is no perfect union of law and justice - there is only an ongoing negotiation between the two.

Our great problem over the last century or so - and here I speak in general terms about jurisdictions across the world - is that we have become confused about where, and how, this negotiation should take place. On the one hand, we have convinced ourselves that the proper fora for closing the gap between law and justice are ‘arm’s length’ regulatory bodies or quangos who make ad hoc, tinkering, busybodyish decisions over the minutiae of some area or other of life so as to make for an ever more perfectly calibrated system of rules. And on the other - the main subject of this post - we have come to the conclusion that the proper forum is the courtroom: a calm, measured, orderly place where legal reasoning can be wielded like a scalpel to surgically excise injustice from law itself.

These developments have had disastrous consequences, because, as Strauss emphasised in the quote which forms the epigraph to this post, justice is properly to be understood as something which is achieved politically: it is legislators, deliberating over the meaning of justice, who have the primary responsibility for making laws that realise it. The legislature, that body which is genuinely and ideally representative of society at such, is the only constitutional organ which has the capacity to channel the stuff of politics - which is to say, the pursuit by individuals and groups of their own interests - into law. And it is therefore the only one which has a cat’s chance in hell of reconciling the many competing ideas that exist in a society about what ‘justice’ means, in such a way as to produce law which can at least gain broad public consensus.

The gradual undermining of the legislature and its partial replacement by courts as the main locus for negotiating the relationship between law and justice is neatly illustrated by a case from the early days of Tony Blair’s first government, R v Uxbridge Magistrates Court (ex parte Adimi) [1999] EWHC Admin 765. This may seem like an obscure, and outdated, subject to dredge up. But as we shall see, it is a case with important ongoing relevance - not just philosophically but also at the coal face of public policy in respect of the most salient political issue of the day - for all that it is basically completely unknown to the layperson. I’d like to walk you through the judgment, as it both illustrates the importance of the shift from legislature to courts in the administration of ‘justice’ and sheds light on one of our main contemporary problems: the so-called ‘small-boats’ crisis, which we will come to later on.

‘A just and sensible policy’

Let’s begin, since it is critical in understanding what follows, with the UN Convention relating to the Status of Refugees of 1951 (the ‘Refugee Convention’). This is an almost-universally adopted treaty that was created in the aftermath of the Second World War in order, in essence, to manage the huge flows of migration of refugees that were taking place across Europe (and, to a lesser extent, Asia) at the war’s end. The relevant provisions of the Convention in respect of our subject of interest here is Article 31, the important part of which reads:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

What Article 31 essentially, then, provides is that a state should not penalise (i.e. imprison, or deport/return) refugees even if they are present with its borders unlawfully - i.e. without prior authorisation - as long as they are not being secretive about it, and as long as they have come straight there. Refugees in other words should be allowed to remain in a jurisdiction in which they have arrived, at least until their claim for asylum is processed and they are found to be a bona fide refugee, if they satisfy the requirements of having ‘come directly from a territory where their life or freedom was threatened’, having ‘presented themselves without delay’ to the authorities, and having had ‘good cause’ for illegal entry.

In R v Uxbridge Magistrates Court (ex parte Adimi) a set of three conjoined challenges to their convictions were made by purported refugees who had all been prosecuted for various criminal offences to do with passport fraud, either on arrival in the UK or when transiting through the UK en route to Canada. The argument of each man in each case was that as a refugee he should have been exempt from penalties for having committed the offence in question as a result of the protection set out in Article 31 of the Refugee Convention - which, as we have seen, provides a level of immunity from ‘penalties’ for refugees who meet the aforesaid requirements.

In each case, the facts are easily stated. The first claimant, Mr Adimi, was an Algerian national who had fled from that country in 1997 and arrived in Heathrow by air from France, having gone to France via Italy with a fake Italian passport. His passport was found by an immigration officer at the UK border in Heathrow to have been forged, and he was refused permission to enter the country. At that point (either that night or the next morning) he claimed asylum, but he was then arrested and charged with possession of false documents. He was later recognised by the Home Secretary to be a refugee and was granted leave to remain, but the Crown Prosecution Service (CPS) nonetheless wished to continue their prosecution of him.

The second claimant, Mr Sorani, was a Kurdish Iraqi national who fled to Turkey in June 1997 and then arranged to meet family in Canada. According to his own story he flew from Istanbul to Heathrow on 16th August 1997 on a fake Greek passport, and was there given a fake Dutch passport and a ticket to Canada by ‘an agent’. (Doubt was cast on this story because the ticket in question appeared to have been bought on 14th August.) He was in any case prevented from travelling onwards to Canada from Heathrow when his fraudulent passport was identified, and he was then arrested and charged with the offences of possession of false documents and obtaining air transport services by deception. He then claimed asylum but was imprisoned for a short period.

The third claimant, Mr Kaziu, was a former bodyguard of the Albanian President, Sali Berisha, who fled the country when Berisha was ejected from power in 1998. He ran away to Greece with a fake Greek passport and then came to the UK through Gatwick on 21st December 1998, intending again to travel to Canada. But, like Mr Sorani, he was discovered at the airport to be in possession of false documents and was arrested and charged, and imprisoned. He eventually claimed asylum much later, in February 1999.

In each case, the judgment of the court hinged around the interpretation of the three requirements set out above, i.e., that in order to avail oneself of Article 31 immunity one has to have ‘come directly’ as a refugee, ‘presented [oneself] without delay’ to the authorities, and ‘shown good cause’ for illegal entry. But the judgment in question is filled with what, as a legal academic, I would call bad craziness - it reads not so much as a court decision but as a piece of naked politicking. There are three things to be said about it:

1)

As a preliminary matter, the court had to determine whether Article 31 was part of UK law in the first place - because, obviously, if it wasn’t, then the immunity in question wouldn’t apply anyway. It may sound surprising that in the period from 1951, when the Convention came into force, to 1999, when ex parte Adimi was decided, nobody had ever pleaded Article 31 as a defence in criminal proceedings. But that was nonetheless the case, and since the question had never come up before, the Administrative Court was required to decide on the provision’s status.

The ordinary rule in UK law is that - the UK being what is called a ‘dualist’ system - a treaty which the executive has signed has no effect in the jurisdiction until Parliament has legislated its provisions. This is for the simple reason that it is not for the executive, i.e. the government, to create law. That is the job of the legislature (i.e., Parliament). If the government could simply go about signing treaties and thereby making them part of UK law, that would be tantamount to legislating by itself. And such a thing, constitutionally, would not do: the government stands in for the monarch, and the biggest no-no in our constitutional arrangements is for the monarch to make law.

There was at the material time no legislation making the Refugee Convention generally or Article 31 specifically part of UK law. But the court got around this and found that Article 31 had effect anyway. This was because in its view refugees had a ‘legitimate expectation’ that the Convention would apply. The Convention was ‘designed to alleviate the plight of asylum seekers and was driven by humanitarian considerations’. Moreover, it did not address ‘the population at large’ but only a ‘particular class of person’, and:

it would be hollow indeed if those who, having acted so as to become members of the contemplated class and having exposed themselves to the risks and dislocation of becoming refugees are without remedy to obtain some measure of protection in accordance with the Convention.

In addition, there was among Ministers and within the immigration authorities an ‘attitude of comprehensive compliance’ with Article 31 in practice. So it didn’t actually matter that there was no legislation that anybody could point to that made Article 31 part of UK law. It was binding because would-be asylum-seekers expected it to be so, and because it would be ‘hollow’ if it was not. This, dear readers, is what we call ‘legal reasoning’.

2)

Having decided that although Article 31 was not part of UK law it kinda-sorta was, it obviously then fell to the court to determine whether the three claimants had ‘come directly from a territory where their life or freedom was threatened’, had ‘presented themselves without delay’ to the authorities, and had shown ‘good cause’ for illegal entry. It might be felt by the reader that as a matter of common sense none of the three claimants satisfied any of those conditions, but of course those who are learned in the law are often able to perceive facts in ways which the common man cannot - and this was true of the judges in the court in ex parte Adimi.

Dealing with the least controversial of the conditions first, it was common ground between all parties that refugees might have ‘good cause’ to turn up in the jurisdiction without authorisation and without the correct travel documents. And the reasoning on this point is actually difficult to disagree with: if one is fleeing persecution, then one may not be able to get one’s hands on a passport or visa. The fact of having been forced to flee one’s home country is, then, usually in itself sufficient to prove ‘good cause’ for illegal entry into Britain.

The second condition is more controversial, and this is the requirement to have ‘presented [oneself] without delay’ to the authorities when claiming asylum. In none of the three cases in question had any of the individuals presented themselves to the authorities straight away on arrival in the UK - each, you will recall, did so only after having been rumbled at the airport. This would (again, applying common sense) seem to suggest that they ought not to be able to avail themselves of Article 31 immunity, since they had not been open or honest about their status and had obviously been attempting to dupe their authorities and pass into the country, or through it, unmolested.

This indeed was the position of the Home Secretary, the respondent. The meaning of Article 31, in his view, insofar as it required a refugee to present himself ‘without delay’, was that an asylum seeker had to present himself voluntarily at passport control. If he maintains the deception and is caught, and only then ‘presents himself’ to the authorities, he can hardly expect Article 31 protection from prosecution.

This, though, was not how the court saw the matter. Simon Brown LJ, who gave the lead judgment, decided to apply the reasoning of Atle Grahl-Madsen, a Norwegian academic and refugee law expert, who had in the early 1970s written a treatise on The Status of Refugees in International Law and declared that ‘a person crossing the frontier illegally may have reasons for not giving himself up at the nearest frontier control point or to a local authority in the border zone’ and that ‘if he succeeds in finding his way to the capital or another major city and presents himself to the authorities there he must be deemed to have complied with the requirement and the same ought to apply if he was unsuccessful but could show that such was his intention’.

This was in Brown LJ’s view persuasive, and meant that if, for example, Mr Adimi had intended to claim asylum ‘within a short time of his arrival even had he successfully secured entry on his false documents, then I would not think it right to regard him as having breached this condition’. No evidence was adduced of such an intention, and you will have noticed that in fact Mr Adimi was precisely in Grahl-Madsen’s class of person who had ‘succeed[ed] in finding his way to the capital’ of the UK, but had still only presented himself to the authorities after having been caught. But as far as Brown LJ was concerned it would ‘not be right’ to deny him Article 31 protection, and that was that.

And for Messrs Sorani and Kaziu, who had both similarly only presented themselves as asylum-seekers after having been caught with forged documents in transit to Canada? Well, in Brown LJ’s mind, they would have been entitled to Article 31 protection if they had been in Canada, and since this was the case, ‘then logically its protection cannot be denied to them here merely because they have been apprehended en route’. That’s right, folks: if the law of another country would have applied to somebody if they had been present in that country, then the same law ‘logically’ ought to apply to them if they happen to be present in the UK instead. This is a bit more of that famous ‘legal reasoning’ I mentioned earlier on.

In any case, Brown LJ was clearly minded to be as generous as possible with respect to how the requirement to ‘present oneself to the authorities’ was to be interpreted - even to the point of asserting that one could be discovered red-handed in trying to sneak through border control with false documents and still then legitimately be seen to have been ‘presenting oneself’ within the meaning of Article 31. To those learned in the law, ‘presenting oneself’ is in other words synonymous with ‘hiding and being caught’.

This brings us to the third requirement for Article 31 immunity, which is that the refugee must have ‘come directly from a territory where their life or freedom was threatened’. Here, the Home Secretary had made the case that refugees must claim asylum in the ‘first safe country’ they arrive in. Messrs Adimi, Sorani and Kaziu had all managed to get to perfectly safe places before coming to the UK. So why should they be claiming asylum here? Why ought they to have been protected by Article 31 if they had come from safe countries like France, or Turkey, or Greece, as they had?

Well, Brown LJ was rather persuaded by various ‘Conclusions’ adopted by the executive committee of the UN High Commission for Refugees, and the ‘writings of well-respected academics and commentators’ (a list of half a dozen or so are provided), who had all decided that ‘some element of choice’ is open to refugees as to where they may properly claim asylum, and that (in the words of the UN High Commission for Refugees) ‘no strict time limit can be applied to the concept “coming directly” and each case must be judged on its merits.’ And judging the cases of Adimi, Sorani and Kaziu on their merits, all of them were deemed to have ‘come directly’ to the UK for the purposes of Article 31.

No particular effort was made to explain why this was the case (the reasoning with respect to Mr Adimi, for example, was that since it ‘cannot clearly be demonstrated that he did not’ come directly to the UK, despite having arrived via Italy, then he, er, had come directly). The important point is that ‘coming directly’ does not in fact mean ‘coming directly’ in the ordinary sense - one can ‘come directly’ from a place where one’s life or freedom is threatened by in fact coming via two or more countries where one’s life or freedom is not threatened. There is ‘no strict time limit’ and ‘each case must be judged on its merits’.

3)

The third and final thing to remark on in regard to ex parte Adimi is perhaps the most disturbing aspect of the judgments, however, and this is their openly deliberative nature. In Britain, judges are supposed to apply legal rules to resolve disputes. They are not supposed to deliberate over matters of policy, and they really ought not to be deliberating over what Parliament should legislate for (or against).

Yet from the outset the judges in ex parte Adimi, particularly Brown LJ, showed themselves remarkably willing to play fast and loose with these principles. In one extraordinary passage, for example, we find Brown LJ declaring that ‘the respondents [i.e., chiefly the Home Secretary] ‘will surely wish to reflect generally upon the wisdom of prosecuting and imprisoning refugees for the use of false travel documents’. He then even goes so far as to cast aspersions on the legitimacy of attempting to deter refugees from failing to properly claim asylum openly at the UK border, asking, rhetorically, whether this is ‘really a just and sensible policy’. Elsewhere, we find him declaring that it would ‘seem to me clearly preferable if possible to avoid any prosecution [of refugees] at all’.

Newman J was more circumspect, and confined most of his judgment to procedural issues, but he too was willing to shoot from the hip with comments about appropriate policy. ‘[I]t is not obvious what interest would be served in prosecuting a refugee [for false passport offences] who is given leave to remain,’ he loftily declared towards the end of his judgment, apparently overlooking the clear public interest in seeing criminal offences prosecuted where they are committed, as a general rule. And he, like Brown LJ, showed no reluctance whatsoever in extending to refugees a ‘rational basis for exercising choice where to seek asylum’ even if it meant going to one perfectly safe country after another before eventually deciding on a place to settle down.

In summary, then, the judgment in ex parte Adimi rode roughshod over constitutional principle, the settled will of Parliament, and ordinary rules of legal interpretation in order to arrive at a nakedly policy-based outcome. The court determined that the Refugee Convention applied in UK law even though it had not been incorporated in the ordinary way by statute enacted by Parliament; that ‘presenting [oneself] without delay’ had a special meaning that actually provided for extensive delays, not to mention active concealment rather than ‘presentation’ as such; that ‘coming directly’ to the UK did not actually mean ‘coming directly’ in any meaningful sense; and that it is the role of the court to apply the law on the basis of what would be ‘preferable’ in its own eyes rather than its actual content.

And it will not have escaped your observation, to bring us back to the theme of this post, that, in setting out its judgment in this way, the court was in effect arrogating for itself the responsibility of reconciling law and justice. The law said one thing: Parliament had never legislated for the Refugee Convention to be part of UK law to begin with, and the meaning of Article 31 of the Convention in any event was pretty clear - in order to avail themselves of the Article 31 defence, bona fide refugees must present themselves to the authorities as soon as they are within the jurisdiction, and must have arrived directly, i.e., by coming straight from the place of danger.

Parliament had also created, through statute, the offences for which each of the claimants in ex parte Adimi was prosecuted or convicted: chiefly, those of obtaining services by deception (at that time governed by the Theft Act 1978) and possession of false documents (an offence at that time contained in the Forgery and Counterfeiting Act 1981). In this respect it had expressed its settled will: obtaining services by deception and possession of false documents are crimes which are to be treated as such. And the offence of possession of false documents was moreover explicitly drafted to include passports: these are cited in s. 5 of the Forgery and Counterfeiting Act 1981 as originally enacted. This meant that Parliament had clearly intended for the offence of possession of false documents to apply in respect of foreign arrivals.

But despite all of this, the judges in the Administrative Court disapproved and set about installing their own vision of justice - what was ‘just and sensible’ - instead. Seeing the gap between law and what they took to be ‘justice’ yawning wide, they determined to close it. And this lead them to, in effect, more or less ignore what the legal position actually was, in order to do what was ‘preferable’ in their own perspective on what ‘justice’ entailed. It was just to allow refugees to seek asylum, and just not to prosecute them for whatever criminal offences they committed along the way. And the law must not be read straight if it said otherwise; it was rather simply be bent and twisted to fit the judges’ particular understanding of justice, rather than being put into effect in the ordinary way.

‘England is dream’

Why is it a problem for courts to act in this fashion? We have an intuition that there something untoward about it, but we rarely articulate why. And if we do, we tend to cast it as undermining the rule of law: if judges are simply able to make decisions as they see fit, irrespective of what the law actually is, then law itself becomes meaningless.

Clearly, ex parte Adimi raised such concerns (or, at least, it should have done), but in a sense the arrogation by the court to itself of the task of closing the gap between law and justice is even worse. This is because it shifts the question of what is just itself from the political sphere to the legal. And in doing so it presents justice as being within the remit of judges to secure - which is a total miscasting of their role. The job of judges is not to do justice; the job of judges is to apply the law. They necessarily do so with an eye on factors outside of the law itself (because any non-criminal dispute will hinge on a disagreement of some kind about what the law dictates - otherwise the matter would not be being litigated in the first place) but chief among those factors is the intention - which is to say the political decision-making - that lies behind the applicable rules. The law is the law because it is what has arisen as a way of aggregating and reconciling the various interests, values, preferences and norms in a society. And it is the legislature, the representative body, which is best equipped to achieve that aggregating and reconciling process so as to bring about a form of justice which society can by and large tolerate. The legislature therefore is the proper locus for discussion of what is generally just or specifically so in certain cases - and the courts are most certainly not.

When courts take on for themselves the job of pursuing justice they do so ineptly, partly because judges are rarely as wise or as gifted as they imagine themselves to be, but mostly because they are extremely badly equipped to be representative. They instead become gripped by flights of fancy and get daft and giddy notions into their heads about what justice really means. The decision in ex parte Adimi and its downstream effects are an excellent illustration of this problem, because many of our intractable difficulties resolving the most salient political issue of the day - the so-called ‘small boats’ crisis - in effect arise from the court’s foolhardy pursuit of justice in that long-ago case.

For those unfamiliar with the subject (I am not sure how widely it is known outside of the UK itself), roughly 160,000 people have unlawfully crossed from France to Britain by sea over the English Channel on so-called ‘small boats’ since 2018, most of them in the last three years. (At the time of writing, about 2,200 more had arrived within the last 7 days.) These are typically described in mainstream media as ‘asylum-seekers’, who have purportedly fled war, famine, persecution, etc., and made their way to Normandy, in France. There, they arrange with people-smugglers to make the short journey across to Britain in rubber dinghies, where they are then quickly picked up by the authorities and brought ashore to be ‘processed’. The great majority are young adult males.

Any reasonable person would think that this dangerous practice, which undermines the core duty of the sovereign state to control its borders, contributes to an increase in crime, and outrages the lawfully settled population, should be stopped. But the modern British state doesn’t appear to have the wherewithal to do that, so the practice continues unabated. Desultory attempts are made to stop it, but no government has ever really had its heart in the project; the current lot’s best wheeze, already visibly failing, is to ‘smash’ the people-smuggling gangs who profit from the enterprise. The subtext to this is that they have basically given up on trying to deter people from making the attempt at all, and are only going through the motions of looking as though they care about the issue in the first place.

Whenever this subject comes up in the news, people tend to ask the obvious question - why does anybody need to claim asylum from France? These small-boat passengers weren’t in danger there; the weather is better and the food is nicer to boot. So why are we allowing them into this country to seek asylum at all? Why don’t we just charge them on arrival with criminal offences related to unlawful entry and then deport them? Wouldn’t it be the easiest thing in the world to meaningfully deter 99% of attempts, simply by letting it be known that anybody making the journey illegally would face, say, five years of jail time on arrival, followed by deportation?

A bleakly amusing little vignette, entirely apropos to these questions, aired on GB News a few months ago. In the segment, in which presenter Patrick Christys visited a migrant encampment on the outskirts of Calais, he encountered a Sudanese man who was evidently planning to embark on the crossing. Asked why he wanted to go to England, this man responded, ‘England is dream. Sudan is war…England is not war…’

Christys’ reply to this, played with an impeccably straight bat, is worth reprinting: ‘I understand that Sudan is war,’ he conceded, ‘But why does that make England the dream? Because France is not war….no war here!’

And there you have it, in a nutshell: Sudan is war, but France is, indisputably, not war. So why are these people, currently based in France, coming to Britain, and why is Britain obligated to allow them to remain once they arrive on the basis of their being ‘asylum seekers’?

Well, you already I think know the answer. It is because - in part, anyway - it is impossible for any government to put in place an effective deterrent to making the crossing, owing to the decision in ex parte Adimi. As I earlier explained, that decision made it a matter of justice that refugees should be permitted to more or less choose the country in which they claim asylum, and should not face any sort of criminal sanction on the basis of an extremely loose and generous interpretation of Article 31 of the Refugee Convention. There is no sense in ordinary English usage in which small-boat passengers from France have ‘come directly from a territory in which [their] life and freedom is threatened’. But thanks to the court’s decision in Adimi, it has become the case that they may in fact have done so - given that ‘no strict time limit can be applied to the concept “coming directly” and each case must be judged on its merits.’

The significance of this, of course, is that since every single case has to be judged ‘on its own merits’ in light of an amorphous ‘no strict time limit’ principle, every individual small-boat arrival has to have his or her case personally assessed. Rather than simply being told, ‘You’ve come from France so by definition you haven’t come directly from a territory where your life or freedom was threatened’, these people all have to have their stories heard through a process by which their case is assessed ‘on its merits’. And hence the asylum backlog, asylum hotels, and all the rest - all of it necessary in order to create a formalised, time-consuming mechanism to establish whether each and every individual in question is a bona fide refugee and also whether they can be construed as having ‘come directly’ from a place where their life or freedom is threatened - when it clearly has not (since it is France).

This is completely mad, of course, because - as I said earlier - it should really be the easiest thing in the world to enact a statute that at a stroke would eliminate the incentive to make the crossing from France to England for 99% of prospective passengers. Titled something like the ‘Illegal Crossings (Small Boats) Act 2025’, this would set out a range of criminal offences with stiff custodial penalties that would apply to anybody making the crossing. And the message would very soon get out that there is no point in even making the attempt to enter the country in this way and that, if one is a bona fide asylum-seeker with a valid claim to be allowed to enter the UK, then one should do it through the proper process.

Yet this is made exceptionally difficult because of the decision in Adimi, which would place any government attempting to get such a bill through Parliament in the position of ‘being in breach of international law’ (based on the tendentious reading of the Refugee Convention which the court offered in that case) and hence placed in a politically and potentially constitutionally awkward position. It could lead to serious embarrassment and blowback, and even precipitate a confrontation between judiciary and legislature.

That governments would feel squeamish about the consequences of this has already been evidenced by the enactment of the pussyfooting Nationality and Borders Act 2022, which attempted to triangulate between the hardline position I have sketched here and that which the court adopted in Adimi, but which achieved little beyond further complicating the meaning of having ‘come directly’. And certainly until a government is willing to act in such a way as to be openly accused of being in breach of international law - or is willing to withdraw from the Refugee Convention itself - then the situation will not meaningfully change.

Parliament as the seat of law and justice

Although the ‘small boats’ crisis cannot fairly be laid exclusively at the door of the Administrative Court’s decision in Adimi, it is safe to say that our current situation would not have come to a head in the way in which it has without it. And the problem underlying the judgment is, in summary, easily stated: the decision arose from a dissatisfaction on the part of the judiciary with the legal position itself - which appeared to the judges in question to be producing an ‘unjust’ outcome. This lead to a mangling of the legal position so as to better fit the ideal of justice which the judges had in their own minds - largely imbibed from their social and cultural upper-middle class milieu and bien pensant opinions of global experts on matters of immigration and asylum.

And the consequence of this was an extremely foolish and short-sighted decision that took no account of its own long-term implications and rested exclusively on vague expressions of sentimentality. And this came at the expense of giving effect to the intentions of Parliament (in having legislated the criminal offences in question) and coherent government policy with respect to deterrence of illegal migration. We now live with the highly undesirable effects of its cowboyish reasoning: a confused mess of attempts to deal with a problem which could be very straightforwardly brought to an end with a proper deterrent, rigorously enforced.

This could all have been easily avoided if we had retained the understanding, common to constitutional theorists prior to the 20th century, that justice is a subject of the political art and is both prior and external to law as such. Positive law is what comes into being after the deliberative political process - however formal or informal - has come to a conclusion about the form which justice should take. Law itself effects justice as politics has determined it. This does not mean that law is the mere servant of the whims of politicians: the political establishment of the meaning of justice may very well refer to the perceived or real existence of an underlying cosmic or divine moral order. Rather, it means that the making of law is far too nuanced a matter to leave to judges - often narrow-minded, blinkered, and unconsciously biased - especially when they take it upon themselves to go off on ‘frolics of their own’ as the Administrative Court did in Adimi.

The remedy for the ‘small boats’ crisis, as for much of the problems of our contemporary predicament, lies in a rediscovery of basic constitutional principles that would have struck our ancestors as almost embarrassingly naive. Chief among them is that Parliament, as the representative body, is that which most appropriately makes law - as it is Parliament that has the clearest understanding of what politics itself is generating by way of a conception of the ‘just’. Courts are then supposed to simply apply that reasoning. Many of Britain’s myriad evident problems would be readily soluble if we found a way to re-emphasise this basic point: there is a gap between law and justice and always will be, but the bringing of the two to be closer together is a matter for political and not jurisprudential skill.

And where politics leads is in this respect obvious. What is just in the eyes of the vast majority of the settled population of the UK, immigrant and ‘native’ alike, is that the entire ‘small boats’ issue should be brought to a resounding end. It is unfair; it undermines the authority of government; it encourages crime; it endangers women and girls. Law should be brought into line with this view of where justice lies. And this is a matter which Parliament should simply and straightforwardly address by taking on its proper role as the law-making authority in the country. This will entail, by hook or by crook, the criminalisation of the practice of crossing from France to Britain in this way. And this will require a recapitulation of the legal position as a reflection of what is politically just.