We come back to the central thing
From Brexit to the Slough of Despond
DAVID MCGROGAN
Rather than words comes the thought of high windows:
The sun-comprehending glass,
And beyond it, the deep blue air, that shows
Nothing, and is nowhere, and is endless.
-Phillip Larkin, ‘High Windows’
Towards the end of 2019 Douglas Murray spoke for the nation when he appeared on BBC Newsnight in a debate over Brexit. By that stage over three years had passed since the actual vote had been taken to leave the European Union, and we still had not left; the establishment, like the collective embodiment of a recalcitrant toddler refusing to put his wellies on for a trip in the rain, had simply stomped its feet and held its breath and ‘thcreamed and thcreamed until it was thick’.
Murray, every inch the exhausted parent, after having sat listening to a condensed version of this scenario with Emily Maitliss and Paul Mason jointly taking on the part of the child, found himself suddenly blurting out:
‘We come back to the central thing. We had a vote three years ago, and it’s still not been acted upon.’
And one could almost see in his eyes the frustration, familiar to fathers everywhere: ‘I’ve asked you to clean your room fifteen times now Emily, and you still haven’t done it!’
Well, it’s now 2025, and in many important respects, they still haven’t. Yes, the UK is technically no longer a member of the European Union, but in most significant practical respects it still walks, swims and quacks like an EU Member State. After the Brexit vote, but before the UK had left the EU, a category of legislation – Retained European Union Law (REUL) – was created, on the basis that it would be terribly complicated to change any EU law that had been given effect here while we had been members. The idea was that on Brexit day all then-existing EU legislation would automatically be incorporated into UK law, to be gradually then amended or repealed as desired. After we had in fact nominally left the EU the name of this type of law was changed to ‘assimilated law’ by the Retained EU Law (Revocation and Reform) Act 2023. Notionally it can now be given its own domestic law interpretation by UK courts, who are no longer bound to follow the jurisprudence Court of Justice of the European Union, for all the good that will do. But in any case, there it remains.
There were originally found to have been 6,911 individual pieces of REUL, and under the last Tory government a small effort at least was made to take a machete to it. At the time of writing, of the original 6,911 figure, 1,578 laws have been repealed, and some others amended, replaced or expired. But that was then, and this is now. The Department for Business and Trade has a funky ‘REUL/Assimilated Law Dashboard’ which allows you to monitor progress and even, if you wish, download all the data, and it reveals that said progress has, to all intents and purposes, stopped. Here is how things currently look in tabulated form:
So while the Tories had managed to fight down the figure for entirely unamended REUL from 6155 in 2021 to 4903 in 2024, Labour has more or less put the kibosh on the entire project. The running total, as you can see, has declined by a grand total of one this year – although it is reassuring to reflect on the fact that, at this rate, we should have properly actually ‘left’ the EU in legal terms by the year 6859 AD.
It is hard to avoid the conclusion that this is all yet more guerrilla tactics fought by the British establishment against the Brexit project; it is handy indeed that 6,911 pieces of EU legislation were magically made part of ordinary UK law on leaving and that no effort whatsoever was made to properly catalogue or analyse it all in advance so that as much as possible could be torn up on Brexit day itself. And it is even handier that the bulk of it remained on the books, so to speak, so that a someday future Labour government (elected in 2024, as it happened), could preserve it all in aspic and – ideally – keep it warm for eventual re-entry.
As is always the case, the evidence for this is circumstantial, and so much of public life nowadays has taken on a gaslighting tenor that it is genuinely hard sometimes to work out whether one’s instincts are correct or one is turning into a swivel-eyed loon. Nonetheless, there is an alternative universe in which, on the 24th of June, David Cameron announced that he would stay on as Prime Minister and oversee an orderly process of withdrawal, within which all then-existing EU legislation would be identified and a decision made about its status in advance of leaving. This would also have gone alongside a proper strategy for actually leaving ‘without a deal’, in the nomenclature which subsequently emerged, so that we could have avoided all of the years of wearisome shenanigans which followed.
Wearisome shenanigans, though, have become the order of the day in Britain since the Brexit vote. Looking back now, the 24th of June was like the point in a marriage in which, to paraphrase Al Pacino in Heat, the two parties realise they are ‘passing each other on the downward slope’. Prior to that point, the two halves of the nation – those who, broadly, benefited from globalisation and those who did not – had lived in an uneasy but semi-permanent modus vivendi, chiefly sustained by the former working strenuously to ignore the latter, while the latter gamely stayed schtum. The Brexit vote was the moment when the downtrodden spouse finally plucked up the courage to say how desperately unhappy she was, and the deep fracture lying through the heart of society was revealed for both to see. The two parties are now locked in a sad situation indeed; divorced in all but name, they inhabit the same house but squabble over every last issue they can think of – one keen to go off and start a new life as an independent and autonomous individual, the other harking back to the good old days before ‘she changed’.
The bickering now mostly focuses on immigration and human rights, of course, and it is interesting to see exactly the same pattern developing as that which emerged during the Brexit years. Those who wish to reduce immigration, and repudiate the European Convention on Human Rights (ECHR) – the two issues are separate but overlap – romantically yearn for a moment in which they can express their dissatisfaction with the way things are going, and in good faith imagine that this can be done through the democratic process. Those who benefit from immigration and the existence of human rights law intend to fight tooth and nail to preserve the status quo regardless of what is expressed through the democratic will. And they will engage in whatever wearisome shenanigans it takes to get their way.
One important manifestation of this is absolutely unrelenting lawfare designed both to entrench human rights jurisprudence into domestic law and to entangle its central concepts in other bodies of law, including public law in general – often in the guise of ‘equality’. And this exercise, as it happens, benefits nicely from the existence of REUL/assimilated law, providing yet more opportunities for aforesaid shenanigans and for further difficulties to be thrown in the way of any attempt to genuinely extricate the UK from the managerial malaise.
A curious example of this comes in the form of a recent decision of the Administrative Court in the case of R (on the application of BLV) v Secretary of State for the Home Department [2025] EWHC 2516 (Admin). Ostensibly a rare outbreak of sanity in the broad field of immigration and asylum case law, it is usefully indicative of the extent to which wearisome shenanigans can interfere with good governance when motivated actors make use of legal complexity to agitate for pet causes.
The dispute is fairly easily explained at the level of fact. BLV was a 30 year old Iranian citizen who had come to the UK and then applied for asylum – the details on how this came to happen are hazy; his original application had been rejected but he (at least at the material time) was awaiting the outcome of appeal. He had a nasty condition called Usher’s Syndrome, which made him deaf from birth and which was gradually destroying his vision so that he was now legally blind. On top of this, he could only fluently communicate in Farsi Sign Language, and had only a limited understanding of British Sign Language and, it seems, no real capacity with written or spoken English at all.
BLV was the recipient of a considerable, and costly, level of state support. In the first place, he had been living for two years at a self-contained flat provided gratis by the Home Secretary in Enfield, a place just outside London where house prices are very high; on top of this, he was provided with income support of £49.18/week, and 10 hours a week of care from deaf support workers (the cost of which must run into thousands of pounds each month). He also seems to have had the benefit of Farsi Sign Language interpreters at various stages, which also cannot have been cheap. He was however, he argued, variously the victim of breaches of the Home Secretary’s public law duties arising from the Immigration Act 1999, or else of the Equality Act 2010, or else of the Human Rights Act 1998 – because his accommodation was not ‘adequate’. It was far away from his friends and the church he was attending, and he was worried about the stairs. Moreover, he was not being provided with free Wi-Fi, and the mobile phone signal was bad, so he was not able to carry out video calls as often as he wished.
You see, according to ss. 95-96 of the Immigration and Asylum Act 1999, the Home Secretary ‘may’ (I’ll come back to this word in a moment) provide accommodation and other support to asylum-seekers who would otherwise be ‘destitute’. Accommodation that is provided should be ‘adequate’ and support should be what is for ‘essential living needs’. And when somebody is severely disabled, as BLV was, the meaning of what was ‘adequate’ or ‘essential’ needed to change to reflect that disability. What is ‘adequate’ or ‘essential’ for an able-bodied person is not the same as for somebody who has a disability.
On top of this, the Equality Act 2010 imposes on public authorities (including the Home Secretary) a duty not to discriminate, and since BLV was disabled he – I paraphrase slightly – was being treated disfavourably by only being dealt with in the same way as an ordinary, non-disabled asylum-seeker (i.e. without recognising the effects of his disabilities). This required the Home Secretary to make ‘reasonable adjustments’ to her policy by providing him with better accommodation closer to friends in another part of London, or else giving him free Wi-Fi.
And, finally, s. 6 of the Human Rights Act 1998 requires public authorities to act in a way that is consonant with the European Convention rights. Article 8 of the ECHR, the right to respect for private life, includes the right to ‘establish and develop relationships with other human beings and the outside world’. And this has to be read alongside Article 14, which provides that all rights have to be secured without discrimination on the grounds of status. By housing BLV in inadequate accommodation that was not close to friends and did not have Wi-Fi, the Home Secretary was preventing him from ‘establishing and developing relationships with other human beings and the outside world’ in a discriminatory way. And this put her in breach of her duties arising from s. 6 of the HRA.
I wish I did not have to now tell you that it took 32 pages of densely written argumentation for the judge to come the conclusion: ‘Nice try’. But that is indeed what the decision amounts to. The judge was simply not persuaded that the Home Secretary had failed to provide BLV with adequate accommodation or treated him in a discriminatory way. And he was helped in reaching this conclusion by the fact that BLV, it seems fair to say, was either telling porkies or was being mistranslated at various occasions.
For instance, BLV claimed to be socially isolated in his accommodation but also (it emerged) had been annoying his neighbours by hosting raucous parties into the small hours of the morning. He alleged that ‘adaptive equipment’ in his flat, such as a fire alarm and special doorbell, were not working when actually he had disconnected them from the mains himself. He claimed that he owed £2,000 to his ex-girlfriend because she was covering the cost of his mobile data when the judge found, at the very outside, that the most he could possibly have owed her was just north of £1,000. He claimed he needed to use 200GB of data a month when for practical purposes, for almost all users, 100GB can be thought of as being effectively the same as an infinite amount. He suddenly remembered that he had a fear of lifts halfway through proceedings without having mentioned it before. He was said to be unable to go out alone because he was ‘at risk of falling’, when his own care support workers gave evidence that he would take the bus to catch the Tube to go to church by himself. And so on and so forth.
This obviously led the judge to take a dim view of the claim as a whole, which was dismissed. But this should not distract us from the fact that this bizarre spectacle went on the first place, or that, while the claim failed, BLV will go on receiving taxpayer support as he was previously doing. One feels sorry for anybody with Usher’s Syndrome – it sounds dreadful – but the country can ill-afford to support its own population of disabled people, let alone those from Iran who happen to show up on the doorstep, and our priority at this point, with fiscal crisis looming and a welfare state of ballooning size and scope, must surely be to disincentivise inward migration except of the very highly skilled insofar as it is possible to do so. Yet here we are, continuing to welcome waifs and strays, no matter how difficult it is to integrate them into society and no matter how many costly resources it takes, and continuing to behave as though our capacity to do so is infinite.
I have written before about the political philosophy of this problem – the desire of the modern managerial welfare state to literally attempt to govern the world – but here I would like to focus on the legal aspects. Why on earth are we in this mess? Why is it that we can get into a situation in which a High Court judge is raking over the minutiae of data usage in an asylum-seeker’s flat in order to make a decision about whether a failure to provide free Wi-Fi is violating an important public law duty?
The answer to this question is an involved one, but you will not be surprised to discover that a big part of the problem is REUL or ‘assimilated law’, as it is now called. You will remember that the Immigration and Asylum Act 1999 permits the Home Secretary to provide support for asylum-seekers – the crucial word in s. 95 being ‘may’. The entire regime of asylum-seeker support, in other words – the £4-5 billion spent each year at last count and no doubt higher now – was actually originally designed to be purely discretionary.
This was for a good reason. I am not sure that Tony Blair’s first Cabinet were devotees of Leo Strauss or his admonition that establishing what is just is a ‘function of the political art or skill’, but they certainly had the right intuitions in this regard. Deciding which foreign nationals it is just to allow to remain in the country, and to be supported in doing so, is properly a political and not a legal matter. It is a decision that should be being made by the sovereign in his most fundamental constitutional role as the one who decides which people to permit within the city wall and on what basis. This is a decision with legal effects and whose outcomes should follow due process, but it is not one whose scope should be fettered by legal constraint. And when the Immigration and Asylum Act 1999 was passed, this was the idea – the Home Secretary might decide to grant relief from destitution to individual asylum-seekers, but this was a matter of comity and not law. In the end, it is he or she who has a policy and he or she who is answerable to the electorate – and if that means disincentivising asylum-seekers from coming to the country by granting relief from destitution only sparingly, then so be it.
However, in 2003 a decision was made by the Council of the EU to harmonise the treatment of asylum-seekers across the Member States. Often called the ‘Reception Conditions Directive’, but with the official title ‘Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers’, this grandly declared in its preamble that :
A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
And in the interests of ‘freedom, security and justice’ all Member States would provide ‘Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States.’
Now, the original impulse here, freedom, security and justice aside, was the desire to ensure that asylum-seekers, who generally enter the EU through Greece, Malta, Italy or Spain, would have no reason to move on to northern Europe if they knew that the ‘minimum standards’ would be everywhere the same. It didn’t quite work out that way, of course. But in any event the UK then loyally incorporated the Directive via something called the Asylum Conditions (Reception Conditions) Regulations 2005. These regulations (not enacted by Parliament but created by the then-Home Secretary, pursuant to powers given to Ministers by the European Communities Act 1972 to make regulations incorporating EU law) effectively transform the word ‘may’ in s. 95 of the Immigration and Asylum Act 1999 into a ‘must’. And it therefore transforms what was a matter for discretion into a mandatory requirement.
The Asylum Conditions (Reception Conditions) Regulations 2005 are, you will of course have guessed, still in force as part of ‘assimilated law’. And while the UK left the European Union at the end of January 2020, we are in other words still effectively applying EU immigration law in this regard – albeit that the EU itself actually tweaked the Reception Conditions Directive in 2024.
This is what allows judges and the vast penumbra of very well-funded ‘charities’ who pursue litigation of the BLV variety to declare solemnly that the Home Secretary has a ‘public law duty’ to provide asylum-seekers – even those whose initial claim has been rejected and are now appealing the decision – with costly support for years on end. (BLV, I should not forget to mention, had been living in his flat in Enfield since 2023 and presumably still is.) And, of course, once this public law duty is acknowledged to exist, then this is what allows the doorway to be opened to further Equality Act 2010 and Human Rights Act 1998 claims; now that the Home Secretary is not providing discretionary support as a matter of comity but has a ‘public law duty’, then he or she has to exercise that duty in a non-discriminatory way and in a manner consonant with the Convention rights. And, hey presto, we find ourselves in the world of wearisome shenanigans, where highly motivated firms of solicitors, working with equally highly motivated barristers, and funded by pro-open borders charities, litigate strategically to expand the scope of the State’s duties.
This was transparently the case in BLV. The entire litigation, have no doubt, was carried out in order to try to get the Administrative Court to expand the operation of the Equality Act 2010 and the Human Rights Act 1998 in the field of asylum-seeker support – or else to force on the Home Secretary a broader range of duties arising from the Immigration and Asylum Act 1999. It was all quite deliberate. (A significant ‘tell’ here is that the claimant was represented by a barrister instructed by Deighton Pierce Glynn, a firm who have cropped up in previous posts in connection with strategic litigation conducted by the Unity Project.) Ultimately, the attempt, of course, failed. But this hardly matters – the lawfare will go on regardless. There will be another case like BLV being decided next week. And – who knows? – this one may very well end up expanding the Home Secretary’s duties with respect to asylum-seeker support further yet.
This should, in a normal country, be an easy problem to rectify. There is absolutely no reason for the Asylum Conditions (Reception Conditions) Regulations 2005 to continue to apply, other than the fact that the current government won’t repeal them. And there is absolutely no reason why we cannot transition to an eminently sensible position, which is that there is no point in coming to the UK to seek asylum unless you have a very strong claim to be refugee, because you won’t be able to work and you won’t be given any sort of assistance from the State.
This would solve much of the ‘small boats’ problem, for instance, at a stroke. But, to quote Douglas Murray, ‘we come back to the central thing’. Most people in the UK want to live in a normal country with a sensible policy in respect of immigration and asylum. But there is a big chunk of the population who can’t see what the fuss is about, and desire, to all intents and purposes, to have open borders. As with Brexit, they are in the minority, but they cling to the levers of power. And the struggle to get them to accept that in a democracy it matters what people actually want will be exhausting, painful, and complicated. They are going to fight every inch of the way. And lawfare of whatever stripe is going to be a major frontline in the battle.
It is all so tiresome. Remainers are not the only people in Britain who feel a strong sense of nostalgia for the days prior to 2016. At that time it felt as though – while there were many disagreements and sometimes vociferous arguments – politics was at least being conducted in good faith. People would vote for things and then government would attempt to make those things happen. Almost everybody who voted in the referendum, on either side, naively thought that the result would be fairly straightforwardly implemented.
We now live in a different world indeed, in which, thanks to the anti-Brexit reaction, we tend to assume only bad faith, skullduggery, recalcitrance and temper tantrums from the ‘other side’. And so it will no doubt be, as we move to the next phase of the restoration of British sovereignty in the form of our looming reckoning with the immigration issue. In fairly short order the electorate are going to vote in a government that intends to repudiate the ECHR, and possibly also the Refugee Convention, and do very drastic things to cut immigration. Everybody in the country can sense this. But instead of those things being implemented, the result is going to be long and very drawn out war of attrition. Be forewarned: this is likely to put the Brexit debacle in the shade. And a case like BLV provides just the tiniest hint of a taste of what is to come, as the struggle gets underway to untangle the great mess of legal instruments and duties that has tied successive governments up in knots for a generation.
This article (We come back to the central thing) was created and published by News From Uncibal and is republished here under “Fair Use”
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