How to Win a Law War

Legal conflict in regime politics

Victory belongs to the most persevering.

-Napoleon Bonaparte

Let’s play a guessing game. I’m going to tell you two stories, each concerning a woman. Your task is to figure out which of them was recently the claimant in a successful judicial review, which found the UK government to be in breach of its obligations under Article 3 of the European Convention on Human Rights (ECHR): ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

Are you ready? I’ll call them Woman A and Woman B, although Woman A was a girl when the material events happened.

Woman A is a British national who was groomed by a large gang of men of Pakistani origin in Rotherham in the early 2000s, beginning at the age of 11 and ending at the age of 16. She was regularly given ecstasy, cocaine and alcohol and trafficked to London and Manchester to be raped by large numbers of men; often she was taken out of school by her abusers to be sexually abused in dingy apartments and flophouses. She was referred to as a ‘slag’ by social services and was on occasions seen by police officers being ferried around by taxi drivers - the police would turn a blind eye or sometimes even trade jokes with the offenders. When her mother showed the police her daughter’s mobile phone, containing contact details for 177 men, in order to try to get them to do something about the situation, she was told that her daughter, Woman A, had made a ‘lifestyle choice’.

Woman B, on the other hand, is a Ghanian national who entered the UK in June 2012 on a tourist visa, and overstayed beyond its limit. She made some applications for what is called ‘leave to remain’ (a status permitting somebody who is not a British national to stay in the country, normally for 5 or 10 years), which were all refused. In the meantime, however, in 2014 and 2022, she gave birth to children, and in July 2022 was eventually therefore given leave to remain on what are called ‘family life grounds’ (presumably because one or both of her children have British nationality or settled status). This is where somebody would not normally be entitled to leave to remain, because they are not financially independent, lawfully in the UK, and/or able to speak English, but where it is necessary to allow them to stay because deportation would violate their right to a family life under Article 8 of the ECHR. A condition of ‘No Recourse to Public Funds’ (NRPF) was imposed on this, which meant that Woman B was not entitled to welfare benefits and so on.

(NRPF conditions are completely normal, standard practice in such scenarios - many readers will know foreign nationals in the UK who have leave to remain and this will almost invariably be subject to precisely such a condition. The concept rests on firm moral and economic foundations: namely, the desire not to extend public funds, i.e. taxpayers’ money, to non-citizens merely on the basis of their happening to be physically present in the country for longer than a holiday.)

Woman B had, at the material time, been living, along with her older child, at the residence of her sister and sister’s partner since December 2023. In March 2024 she applied to the Human Rights and Family Unit of the Home Office to have her NRPF condition lifted (therefore allowing her access to welfare and social housing and so on) on the basis that her sister wanted her and her son to leave the property at the end of April 2024 and this would make them destitute. Woman B also argued that it would pose problems for her son, who has Special Educational Needs. This application was refused (the decision being made in July), the refusal was reviewed in September and upheld, and then in November the refusal was re-issued - each time on the grounds of a lack of evidence that Woman B could no longer be supported by her sister financially, and on the grounds that she appeared to still be living with her sister despite the end-of-April deadline having long since passed.

It’s not a particularly difficult guessing game, is it? In fact, it’s insulting your intelligence to even ask the question. Of course the person who was the subject of such concern in regard to the UK’s duties under Article 3 of the ECHR, the prohibition of torture and inhuman or degrading treatment, was Woman B. She was one of a number of claimants in the recent case of SAG and Ors v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), which found that, among other things, the Home Secretary’s system for determining if and when to lift NRPF conditions was not ‘timeous’ enough (yes, apparently that is actually a word): there needed to be in place a more ‘sufficient, practical and effective prioritisation’ of applications to lift such conditions where there is a risk of inhuman and degrading treatment arising - with ‘destitution’ being an instance of such treatment. The lack of such an expedited process to lift NRPF conditions where there is a risk of destitution was held to violate what is called the ‘low level systems duty’ arising under Article 3 of the ECHR, which requires the state to adopt administrative measures to prevent inhuman or degrading treatment from occurring.

How we got to such a position - where somebody can remain in the country unlawfully for over a decade, be repeatedly refused access to welfare benefits on the grounds of there being no evidence for her needing them, and successfully claim that this violates her right not to be subject to torture or inhuman or degrading treatment, is itself a fascinating story jurisprudentially. But recounting it would require quite a detailed exposition of a number of complex cases. And it is worth adding the caveat that the claimant (anonymised as BPB rather than ‘Woman B’) actually won her particular claim on slightly different grounds - that the Home Secretary had failed to properly take into consideration the best interests of BPB’s child when refusing the application to lift the NRPF condition.

What I want instead to focus on is the practicalities, which are instructive. Paging through the judgment in SAG, I was struck by the fact that when two of the claimants (the judgment was handed down in respect of three different cases concerning in total nine people, all concerning the same issue) submitted their applications to have their NRPF conditions lifted, strikingly similar language was used in letters of support. In BPB’s case the letter was from her ‘legal representative’, and in the case of another claimant (LG) it was from LG herself. But in both of these letters a very similar formulation was used, insisting that when somebody makes a request to lift an NRPF condition there should be no requirement for relatives of that person to produce evidence of their financial details. Such requests for evidence are often made to relatives of a person who is applying to lift an NRPF condition, in order to prove that the applicant is really threatened with destitution and cannot be looked after by their extended family.

Here, then, is what BPB’s legal representative wrote to the Human Rights and Family Unit of the Home Office when BPB’s sister was asked to provide evidence that she could not support BPB and her son financially or allow them to continue living in her home:

As a private citizen further details and documents relating to [BPB’s sister’s] finances are private and confidential and irrelevant to [BPB’s] situation. Her reasons for not being able to support [BPB] are also irrelevant. As a private citizen, the state cannot shift responsibility for preventing destitution or a breach of [BPB’s] rights under Article 3 ECHR to her or to any other person or non-state organisation.

And here, on the other hand, is what LG, a Nepalese national otherwise in very similar circumstances (i.e., living with a sister and facing ‘destitution’ on the grounds of said sister no longer being able to support her) wrote to the Human Rights and Family Unit when asked for evidence of her sister’s finances:

As a private citizen, her finances are irrelevant; as a private citizen, the state cannot ask or derogate responsibility to her or any other person.

The two letters are not identical, as you’ll have seen - but they are only different to exactly the extent one would expect if the same person was advising both claimants and making an effort to rephrase the same basic point. My ears therefore pricked up at this, and I decided to do a little investigating.

What I discovered was that all of the claimants in the three conjoined cases were supported by a charity called The Unity Project. This, it turns out, is an outfit whose sole, specific aim is to support migrants who have NRPF conditions on their leave to remain, through providing advice and also achieving ‘legal change’ - which is to say, strategic litigation to ‘force through changes’ in the immigration rules. I did a little more digging and discovered that they work in ‘close partnership’ with a law firm, Deighton Pierce Glynn, who specialise in civil rights and judicial review litigation and describe their aim as being to ‘use the law to empower our clients to challenge abuses, failures, and other unlawful conduct by the government and those with power’. Deighton Pierce Glynn, it turns out, instructed the barristers who represented the claimants in SAG.

And it is in fact then almost childishly easy to join the dots: I would of course not dare to insinuate anything untoward has taken place here (except perhaps in the moral sense), but it is pretty self-evident that this entire litigation was all planned as a wheeze to try to force the Home Office to spend more public money on speeding up the NRPF-review process and essentially making it trivially easy to apply to lift an NRPF condition on the basis of a risk of destitution without requiring evidence. This is not to say that the claimants in the case were not legitimate, of course - but rather to suggest that they were assembled and supported with a particular objective (to ‘force through changes’ to the NRPF system) in mind. The case was a mixed bag; ultimately the court found that there is nothing unreasonable about requiring family members of people requesting the lifting of NRPF conditions to provide evidence of their finances. But its decision also makes expedited requests to lift NRPF conditions much more likely to succeed on human rights grounds.

There is nothing, it is important to say, that is strictly speaking unlawful about all this (for all that I find it irritating that an innocent member of the public, reading the judgment or hearing about it, would never suspect the real reason for the entire charade taking place). It is not so unusual in common law jurisdictions, where litigation is sometimes not really anything to do with a particular set of claimants or their circumstances- they are just being deployed as an excuse to try to get a sympathetic ruling that will require a legal change or change of policy in the round.

But it is of course striking that when it comes to certain subject areas broadly coded as ‘left-wing’ in the current era - migration, climate change, equality law, etc. - strategic litigation of this kind is pursued with such alacrity, backed up with the financial resources necessary, whereas when it comes to issues that are not coded as ‘left wing’ (for example, to return to Woman A, the matter of state culpability for the activities of majority-Pakistani rape gangs) no such strategic litigation infrastructure really exists (beyond, with respect to free speech matters, the notable and very honourable exception of the Free Speech Union). When it came to Woman B (BPB), SAG and their fellow claimants, there was an entire battalion of well-equipped lawfare special forces operatives ready to not just win them money but use their case as a battering ram to change the law. When it came to Woman A - who certainly has a pretty strong prima facie case that her rights under Article 3 were violated by the British state in preventing to protect her from inhuman and degrading treatment - there wasn’t even a lawfare peashooter available on her behalf. The criminal law eventually founds it way to her tormentors, but that in itself will not lead to the tiniest change in the law or policy or put liability onto the state for the manifest failings of the police and social services in her case.)

This, then, to make clear, is largely the reason why the law develops in the way that it does - i.e. eternally in a progressive direction. It is not for the most part that judges are all raving radical lefties (though some are). It is that, at the end of the day, judges can only, as it were, hear what is put in front of them. They can only rule on cases where they are required to give a judgment. And if all of the cases in respect of particular issues (migration being at the top of the list) are being brought by what might be called the Left Lawfare Industrial Complex, then it is the Left Lawfare Industrial Complex that will tend to influence the development of law the most.

And there really does exist such a complex in the truest sense. To give just a brief impression of how vast a complex it indeed is, merely in respect of migration issues, let’s take PICUM, only itself one of the larger pan-European players in the migration field. This is an umbrella network of no fewer than 160 member organisations operating in 32 different countries; it is lavishly funded by the European Commission, the Open Society Foundations, the Oak Foundation, Robert Bosch Stiftung, and so on. PICUM itself is supported by the European Philanthropic Initiative for Migration (EPIM), a ‘philanthropic collaborative’ conglomeration of charitable entities working on ‘issues of migration, belonging and democracy’ and, amongst other things, ‘curating the migration ecosystem’. It is also funded by various big international foundations (including, you’ve guessed it, the Open Society Foundations, as well as Robert Bosch Stiftung and Britain’s very own Joseph Rowntree Charitable Trust) and funds projects connected to areas such as ‘Building Inclusive European Societies’, ‘EU Mobile Citizens’ Access to Rights’, ‘Communicating on Migration’ and ‘Shaping the Future of European Migration Governance’. EPIM, in turn, is part of an even bigger network - the Network of European Foundations - which brings together foundations around Europe to engage in ‘strategic collaboration’ in the interests of progressive causes.

Lower down the food chain, meanwhile, are entities such as Asylum Aid, which offers ‘high quality legal representation’ to asylum seekers; it is funded by, amongst other things, BNP Paribas, Unbound Philanthropy (a New York based foundation interested in the ‘intersection between climate and migrant justice’), Disrupt (an outfit ‘seek[ing] to disrupt the status quo of social injustice’) and, er, the Open Society Foundations. I could go on and on - in this area alone there are millions upon millions of pounds sloshing around annually to fund, amongst other things, strategic litigation, and I have no doubt that if one wanted to one could discover some of it making its way into the coffers of the Unity Project (which is rather cagey about its finances and board) to support claimants like BPB.

All of this, though, draws attention to a much wider problem. One of the major distinctions between the left support for causes such as open borders and the attitudes of the political right, particularly in the UK, is that the activist left is serious about winning battles in respect of the issues it cares about, and that it pulls out the stops to do so. It in other words appears to know itself to be in a knife fight and wants to emerge victorious. This is of course why those who sign up to its values engage in lawfare like the SAG case - which only incrementally, but noticeably, makes it easier for migrants to remain in the UK by improving access to benefits - with such vigour. And it is why there are such vast sums of money being funnelled into lawfare by left-leaning foundations and charities across Europe and around the world.

The political right, on the other hand, outside of the USA, is nowhere to be seen in the lawfare arena: it appears to be only blithely engaged, in respect of any given issue, in what it thinks to be a civilised, gentlemanly debate-club dispute that it can win with good slogans and polite but robust reasoning. It appears to understand nothing of the notion that, as a Match of the Day pundit might put it, when it comes to knife fights victories go to the side which ‘wants it more’. The way that the left uses lawfare in respect of immigration and open borders is a strong indication of this basic truth about political power. Left legal activists know what they want, and left donors are willing to spend the money to try to help them get it through any means necessary, including creative use of strategic litigation. When it comes to conservative activists and donors, the same simply doesn’t apply.

What explains this? The American political scientist Charles Kesler tells us that politics can be understood to operate in two modes: ‘normal politics’ and ‘regime politics’. Normal politics is what happens when the different sides abide by the same rules and aim towards the same or similar outcomes, but just in different ways. This is the type of politics that became familiar to us in the 1990s and 2000s, when the sliver of distinction between left and right over issues such as free markets, growth, immigration, trade, and so on was tiny.

Regime politics, on the other hand, is what happens when the composition of a regime itself is at stake in political struggle: attention shifts not to what the marginal rate of tax should be and matters of that kind, but on the truly fundamental questions - who gets to rule this society, who gets to be a citizen in it, and what are its values?

We are now, like it or not - I don’t think anybody could reasonably disagree about this - well and truly within the boundaries of regime politics. Everybody senses it: the very way in which we are governed, and our relationship to government, has been unsettled and is up for grabs. The left, certainly across Europe - the US is always an exception - seems to intuit this, and, knowing fundamental matters to be at stake, is fighting its political war as though this is the case.

But the right (again, the USA is different) hasn’t yet even grasped the nature of the problem it faces. Conservative politicians, activists and donors remain for the most part stuck in a normal politics paradigm governed by polite, dinner party discussion rules. They do not like regime politics, they fear it, and they wish it would go away. And they don’t want to stoop to lawfare because they don’t understand it and because they don’t currently have the conceptual tools to engage with what a knife fight entails. They need, in short conclusion, to learn quickly that instead of bleating about left lawfare they can start themselves to play the same game - and think rigorously about how they can use the courts to ‘force through changes’ that they care about. But in order to get to that position they are going to have to cotton on to the fact not just that they are in a war, but that it is a war taking place across a landscape of regime politics, i.e. one wherein foundational issues - it is difficult to think of anything more foundational than who is allowed to be part of the national community - have risen to the surface to be resolved.