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In the news
Proposed tightening of Article 8 under Immigration and Asylum Bill
On Thursday 8 October, the government published factsheets on the Immigration and Asylum Bill. The Bill is currently at the committee stage in the Commons. The factsheets set out the government’s view that the current immigration and asylum system is not fit to deal with “the sheer number of individuals that it is seeing today”, noting that over 460,000 people have claimed asylum in the UK since 2021.
The factsheet on Article 8 reform states that the government remains “committed to the ECHR” but believes that a “fundamental reset of the balance between Article 8 rights and the public interest” is needed. The factsheet explains the broad ways in which the Bill seeks to “reform” the application of Article 8 in immigration cases.
However, if passed into law, the proposed changes will take effect through amendments to Part 5A of the Nationality, Immigration and Asylum Act 2002 and will thus merely be matters to which courts must “have regard” (section 117A(2) of the 2002 Act). On current authority, this means that the new provisions will have no effect to the extent that they require decision-makers and courts to determine Article 8 claims inconsistently with Article 8 itself (Rhuppiah v SSHD [2018] UKSC 58 at [49]).
Record terrorism arrests reported
New Home Office statistics also published on Tuesday 8 October show record numbers of terrorism-related arrests in the year to June 2026. The total number of such arrests was 3,867 up from 234 in the previous year – a rise of 1,553%. The increase can be attributed to the proscription of Palestine Action on 5 July 2025 and the large numbers of people who publicly declared their support for the group in the wake of that decision. 94% of all terrorism arrests in the year were linked to support for Palestine Action. At the date of reporting, only 704 arrests (18%) had resulted in a charge, including 634 linked to Palestine Action support.
In the courts
Honours forfeiture recommendation is justiciable
In R (Baron Ranger) v Prime Minister [2026] EWHC 2466 (Admin), the High Court held that a recommendation that an honour be forfeit is open to challenge by way of judicial review.
Proceedings and background
The Claimant’s CBE was revoked by HM The King in October 2024. This step was taken on the advice of the Prime Minister after a recommendation by the Honours Forfeiture Committee. The Claimant challenges that decision on common law grounds and grounds under the Human Rights Act 1998 (HRA). In her judgment handed down on Tuesday 6 October, Lieven J dealt with the preliminary issue of whether, in principle, judicial review may lie in respect of a decision to recommend forfeiture of an honour. The sole question for the court at this stage was whether such decisions were “entirely non-justiciable”, i.e. whether or not they could be challenged on any grounds ([3]-[4] and [50])
In the GCHQ case [1985] 1 AC 374, Lord Roskill identified “the grant of honours”, among other exercises of prerogative power, as non-justiciable on the basis of having a “nature and subject matter … such as not to be amenable to the judicial process” (p 417). However, this reference to honours was obiter and it was not argued that the court was bound by it (see [24] and [79]). R v SSHD, Ex p Bentley [1994] QB 349 confirmed the point. In that case, the Divisional Court allowed a challenge to an exercise of the prerogative of mercy, another area of non-justiciability previously identified by Lord Roskill.
It followed that the question for the High Court was res integra, although Lord Roskill’s view had recently been approved by the Scottish Court of Session, Inner House. That court held in Senior-Milne v AG for Scotland [2020] CSIH 39 that a decision to grant or withhold an honour could not be subjected to judicial review, using an analogy with a decision whether or not to make a gift to illustrate that no legal rights or legitimate expectations arose (see [19]).
Decision and reasoning
Notwithstanding the persuasive authority of Senior-Milne, the judge concluded that the decision to recommend forfeiture was, in principle, open to judicial review. The case law since GCHQ revealed the continuing existence of a principle of non-justiciability in respect of: (i) matters falling beyond the “constitutional competence” of the courts under the separation of powers (paradigmatically, transactions of foreign states and proceedings in Parliament); and (ii) decisions that do not affect private legal rights or duties, do not raise reviewable matters of public law, and on which no other justiciable issues turn (Shergill v Khaira [2014] UKSC 33 at [41]-[43]).
The judge held that neither category applied in the present case. The decision to recommend forfeiture of an honour did not fall within the paradigm examples of the first category ([69]). As for the second category, a justiciable issue did turn on the decision. Public guidance assured that the decision would be taken in accordance with a clearly defined procedure. This pointed towards an apparent procedural legitimate expectation that the publicised process would be followed ([71]). Also relevant to the principle of legitimate expectations was the judge’s view that revoking an honour was different from not granting one. Revocation had “significant detrimental consequences for the individual”, being “a highly public decision, which by its nature is likely to attract wide-ranging comment”, unlike the private decision not to confer an honour in the first place ([76]).
On the face of it, this reasoning was sufficient to deal with the preliminary issue. If a justiciable claim could be brought on the basis of a procedural legitimate expectation, that showed a decision to recommend forfeiture of an honour was not entirely insulated from judicial review. However, the judge went further in her reasoning, indicating that a more substantive challenge might also lie based on the application of the forfeiture criteria and the exercise of judgment involved in doing so. Crucially, the judge explains that the forfeiture decision is made by “applying criteria, which are capable of largely objective analysis … The decision is not one of purely discretionary judgment, but rather the application of criteria of a nature which courts are very familiar with considering” ([72]). And in addition:
“There are moral and ethical judgments to be made in the decision whether to revoke an honour, but these are no different to many decisions that are amenable to judicial review. It may well be that a court would find that the Defendant has a broad margin of appreciation in making such determinations. But that is a matter for a subsequent stage … Further, those moral and ethical considerations are outlined in the guidance and therefore are now made in a structured context” ([75]).
This further line of reasoning suggests that the decision to recommend forfeiture has been sufficiently codified that it may in itself raise reviewable matters of public law, rather than being a decision that can be brought within the cognisance of the court only so far as a legitimate expectation, or other secondary justiciable issue, attaches to it.
Justiciability under the HRA
As for the question of justiciability under the HRA, the judge concluded that there was no barrier to bringing the human rights claim in light of the common law challenge being justiciable ([90]). The judge declined to assess whether the HRA challenge could be independently justiciable, as this would require an impossible counter-factual assessment on the premise that the common law position were not as she had found it to be ([92]-[93]).
On Law Pod UK and the UKHRB
- In Episode 245 of Law Pod UK, David Hart KC talks to Sir Richard Macrory, author and editor of the recent book EU Environmental Policy and Law: Reflections at 50.
- Lance Baynham discusses Birmingham Community Healthcare NHS Trust v Ibrahim [2026] EWHC 2468 (KB) in which the High Court upheld a Judge’s decision that the Defendant Trust had breached the Claimant’s rights under Article 14 ECHR when it failed to adopt an alternative procedure for dispensing Codeine outside of daylight hours during Ramadan in 2019.
