In the last days of 2025, British Prime Minister Keir Starmer stoked controversy by welcoming activist Alaa Abd El-Fattah to the UK after his release from prison in Egypt. Fattah has expressed extreme views, including hatred of white people and support for the killing of police and “Zionists,” including civilians. He became a UK citizen in 2021, while he was still in prison, on the basis of his mother’s UK citizenship. The right to citizenship by descent on the mother’s side for those born prior to 1983 used to be dependent on passing a “good character” test (rather than granted automatically), but this requirement was removed by the British Nationality Act 1981 (Remedial) Order 2019, due to judicial decisions made under the auspices of the UK’s Human Rights Act 1998. How, then, did human rights law come to facilitate the move to the UK of an activist whose own respect for human rights seems tenuous? To understand this, we need to look at the origins of human rights law.

National constitutions—including, most famously, that of the United States—often enshrine a range of human rights in law, allowing them to be enforced against the interests of the state itself. But the major international push for human rights law took place after World War II. The non-binding Universal Declaration of Human Rights was adopted by the UN General Assembly in 1948 and later treaties made human rights a matter of international legal obligation. These treaties included regional human rights instruments, such as the European Convention on Human Rights, which was opened for signature in 1950 and entered into force in 1953, as well as UN treaties such as the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

The European Convention on Human Rights was adopted by European states after the atrocities that took place in World War II, including the Holocaust. The idea was to prevent such horrifying human rights violations from occurring again. The European Court of Human Rights, a supranational court established in 1959, based in Strasbourg, France, interprets the Convention. In many areas, the Court provides a valuable service by holding states accountable for genuine violations of human rights in cases ranging from police failures to respond to domestic violence to media invasions of privacy and unnecessary workplace prohibitions of religious symbols. But in recent years the Court has become increasingly embroiled in controversy, especially in relation to migration.

The UK’s Human Rights Act was enacted under Tony Blair’s Labour government in 1998 and entered into force in 2000. It was designed to “bring rights home” by implementing the European Convention domestically. The Human Rights Act offers a moderate form of rights protections—in part because UK courts do not have the power to strike down Acts of Parliament, unlike, for example, US courts, which may invalidate Acts of Congress on the basis of their unconstitutionality. UK courts may merely adopt interpretations of legislation that are compatible with human rights under section 3 of the Act, or issue a (non-binding) declaration of incompatibility under section 4. Of particular importance is the obligation under section 6 for public authorities, such as government departments, to act consistently with Convention rights.

However, while UK courts cannot strike down an Act of Parliament, if a UK court declares such an Act to be incompatible with the European Convention, this may lead the European Court of Human Rights to declare a violation and the European Court’s decisions are binding in international law under Article 46 of the Convention. If a government wishes to respect international law, following judicial decisions on human rights is therefore not quite as optional as the design of the Human Rights Act might suggest. Although the UK government can choose whether to act on a declaration of incompatibility issued by a domestic court, it has no choice but to obey—at least in theory—when the European Court of Human Rights rules against it. Occasionally, the UK government pushes back on decisions it does not like and offers only token compliance, as when the European Court told the UK to allow prisoners to vote. And sometimes the European Court reconsiders a decision after resistance from UK courts, as in skirmishes over hearsay evidence and extradition with the possibility of life imprisonment. But for the most part, if “Strasbourg has spoken, the case is closed.”

The Human Rights Act has been debated since its introduction, and Blair himself is said to have felt some buyer’s remorse. The Conservative-led government in power from 2010 to 2024 ended up leaving the Act in place, though an abortive attempt to replace it was made in 2022. However, in 2025, Reform UK, the party that is currently leading in the polls, outlined plans to repeal the Human Rights Act and replace it with a British Bill of Rights, while the Conservatives have indicated similar plans.

A key issue is migration, as the state’s removal of a migrant can be challenged on human rights grounds, especially under Articles 3 and 8 of the Convention. Article 3 prohibits torture and inhuman or degrading treatment or punishment, and has been interpreted by the European Court to prevent migrants from being deported to countries where there are substantial grounds for believing that the person would face a real risk of being subjected to such treatment. Article 8 protects private and family life, and can be raised to challenge removal decisions that involve settled migrants or separation from family members. 

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Courts undoubtedly play a legitimate role in assessing human rights compliance, since if this were left entirely to the elected branches of government, they would be marking their own homework. But the nature of human rights law often requires courts to rule on contested areas of policy, and if those courts get creative in their interpretations of the law, they risk backlash. For example, the European Court of Human Rights has interpreted Article 8’s protection of private life as extending to a range of hot button issues not mentioned in the text of the Convention, including abortion and assisted dying. It has also interpreted Article 3 in surprising ways, such as finding—with little textual warrant—that irreducible sentences of life imprisonment are impermissible. The European Court famously considers the Convention to be a “living instrument” whose meaning evolves over time, which is not the usual way in which treaties are interpreted.

In some areas, human rights law entails the application of a highly discretionary proportionality balancing test to assess whether the state can interfere with a particular right. In the migration context, the European Court’s case law requires governments to weigh up the community’s interest in removal against the migrant’s right to private and family life under Article 8 by reference to various factors, including, if the migrant has committed a crime, the nature and seriousness of that crime. (In the UK, Immigration Rules provide guidelines for this exercise.) Although some data suggest that relatively few foreign national offenders have successfully appealed deportation decisions through the First-Tier Tribunal on human rights grounds, this does not capture the full picture since human rights objections to removals can also be addressed to the initial government decision-makers. The possibility that criminal migrants may be relying on human rights law to resist removal raises an obvious question: What about the rights of the local population?

A separate line of European Court cases relating to “family reunification” can require states to admit family members of persons who are already in residence. For example, in MA v Denmark—a case brought by a Syrian asylum seeker who entered Denmark hidden in a truck—the applicant was granted temporary protection status and then requested permission to bring over his wife and two adult children. The Court found that imposing a three-year waiting period before allowing his wife to join him in Denmark was impermissible under Article 8. The Court considered that “[t]he applicant had an interest in being reunited with his wife as soon as possible, whereas the Danish State had an interest in controlling immigration as a means of serving the general interests of the economic well-being of the country and of ensuring the effective integration of those granted protection with a view to preserving social cohesion.” Nonetheless, it sided with the applicant because it concluded that Denmark had not “struck a fair balance” of these competing interests.

However, what courts consider as striking a “fair balance” between the interests of a receiving population and those of a migrant is inherently highly subjective given that this requires them to compare two incommensurable things: this is not pitting like against like. In May 2025, several European governments wrote a letter raising their concerns about the European Court’s case law in relation to expelling criminal foreign nationals and objecting to

cases concerning the expulsion of criminal foreign nationals where the interpretation of the Convention has resulted in the protection of the wrong people and posed too many limitations on the states’ ability to decide whom to expel from their territories. In our opinion, safety and security for the victims and the vast majority of law-abiding citizens is a crucial and decisive right. And, as a general rule, it should take precedence over other considerations.

There is also ongoing discussion of a potential declaration by states parties to the European Convention on Human Rights on the issue of illegal migration, which they plan to adopt in May 2026. Starmer and Danish Prime Minister Mette Frederiksen wrote a joint op-ed in December 2025 calling for “modernisation of the interpretation of the European convention on human rights” in order to “control our borders.”

El-Fattah’s journey to the UK therefore occurred in an already fraught political context. The 2019 Remedial Order that allowed his citizenship to be registered without a “good character” test was made because UK courts declared the good character test in the British Nationality Act 1981 incompatible with Convention rights for certain paths to registration of citizenship.

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The Remedial Order cited the decision of the UK Supreme Court in R (Johnson) v Secretary of State for the Home Department in 2016, in which the Court found the good character test to be incompatible with Article 14 of the Convention (prohibiting discrimination) in conjunction with Article 8 (the right to private life) for children with British fathers, born out of wedlock. The case concerned a Jamaican-born appellant, whom the UK government was seeking to deport because he had been convicted of manslaughter. The Court ruled that it was discriminatory to impose a good character test, noting that “the unsympathetic context in which the issue arises should not distract us from the importance of the issue to anyone who was born to unmarried parents at the relevant time.” That may be so, but, again, the question is: What about the safety of the British population who were potentially endangered by the failure to deport a criminal who had committed manslaughter? The Remedial Order also cited a consent order before the Administrative Court in R (David Fenton Bangs) v Secretary of State for the Home Department in 2017, in which imposing the good character test for citizenship on a convicted murderer who had a British mother was considered to be incompatible with human rights.

In 1981, when El-Fattah was born, his British mother would not have resulted in him automatically receiving British citizenship. However, given that the 2017 case challenged the good character requirement relating to this pathway to citizenship (which had been introduced in 2002), by 2021 his British mother meant that he was able to receive citizenship without being subject to a good character test.

After the controversy over Starmer’s warm welcome to El-Fattah, the UK Supreme Court took the unusual step of issuing a statement stressing that it had played no role in the decision to award El-Fattah citizenship in 2021, since the order that was directly relevant to El-Fattah’s situation was made by the Administrative Court, rather than by the Supreme Court. However, that consent order followed the 2016 Supreme Court ruling in Johnson.

Human rights law inherently involves difficult trade-offs, but the deeper issue is that it often centres the human rights of claimants over those of the public at large. In one famous example, the European Court found that by threatening a kidnapper in an attempt to save a child’s life, German police had violated Article 3, and should have been more severely punished, a decision that was criticised for prioritising the human rights of someone who kidnapped and murdered a child over the rights of that child.

Some European Court decisions do push back against a focus on the rights of offenders over those of their victims or potential victims. The “rights of others” are specifically indicated as a basis for the limitation of several rights in the Convention. The Court has been clear that support for terrorist groups is not protected by the Convention, and it has employed Article 17 of the Convention—which excludes acts aimed at the destruction of any of the rights and freedoms in the Convention from protection on the basis of human rights—to reject some claims for protection of extremist acts. Despite this, there have been attempts to reverse the proscriptions of terrorist organisations on human rights grounds. Efforts of this kind exemplify the risk that human rights law will be used in ways that harm the human rights of others—which is perhaps the central problem in this area of law.