This post, authored by Dr David McGrogan, is republished with permission from The Daily Sceptic
It is impossible to understand our approach to matters of immigration and asylum except through the lens of political theology. We are in the grip of a politicised and secularised obsession with redemption. The asylum-seeker comes to our shores and, wherever he is from, whatever his background, and whatever he has done or might in future do, we stand ready to wash him clean and welcome him in as chosen of God. That the people who are most in thrall to this vision are almost invariably atheists is precisely the point: “All significant concepts of the modern theory of the state are secularised theological concepts.” It is through the death of God, the killing indeed of God, that the state – and hence, man – is made the vehicle of redemption.
This helps explain a lot of aspects of the issue that are at first blush puzzling, the most puzzling being: why is it that the British authorities seem so relaxed about, and almost keen to encourage, the entry into our territory of young men from extremely violent, misogynistic societies, almost above any other category of person? Why are they so hell-bent on exposing the citizenry to danger, for no discernible gain? It is precisely because there is no discernible gain, of course, and precisely because the entrant in question is so steeped in real or potential sin: that is why redemption is necessary in the first place.
I was reflecting on this the other day while reading, in connection with a bigger piece of work, the case of R (CSM) v Secretary of State for the Home Department [2021] EWHC 2175 (Admin), which is significant in establishing the nature of the duties owed in human rights law to people in immigration detention pending deportation who have contracted HIV. Other cases are much more egregious, but this one is fresh in my mind, and serves the purpose of illustration.
The anonymised claimant in CSM was a national of the Democratic Republic of Congo who came to the UK as a child with his father and was granted indefinite leave to remain. In 2013, aged about 21, he was convicted of attempted robbery and possession of a firearm and sentenced to seven years and two months in prison, and was deported to the DRC in 2017. He then duly made his way back to the UK in 2019 and made an asylum claim, on the (totally unproven and unevidenced, as far as I can tell) basis that on being returned to the country of his birth he had been tortured.
The thing was that CSM had HIV, which he apparently contracted as a child, and he needed to take medication daily. But he almost certainly deliberately, and almost certainly acting on advice from his solicitors, left his medication at home when attending his asylum screening interview. The reason he did this was probably that he knew (or his solicitors had told him) that, according to the rules, he could not be detained at an immigration removal centre without his HIV medication (detention being ordinarily routine for asylum seekers who have already been deported from the country once before, pending a decision on their asylum claims).
However, CSM ended up being detained in breach of policy anyway, for about 36 hours, at the intake unit where he had been interviewed, while staff attempted to find replacement medication. When a prescription for this was eventually issued, he was duly sent to an immigration removal centre, but in the end there was a gap of about four days in which he was unable to take his meds.
This was sufficient basis for a finding by Bourne J in the Administrative Court that the Home Secretary had violated CSM’s rights arising from Article 3 of the European Convention, i.e., not to be subject to inhuman or degrading treatment or punishment. The equation here, you see, runs: not being able to take one’s HIV medication for a few days + consequent slightly elevated risk of developing AIDS = inhuman or degrading treatment. And CSM was eventually in any case released a few weeks later back into society for, you’ve guessed it, mental health reasons. His asylum claim was at the time of the judgment (two years after the material events) still outstanding, which is normal when a judicial review is in the works; for all we know, it remains outstanding yet.
The important point to observe about all this is that, despite the facts that CSM was a foreign national who had committed serious criminal offences in the country, had already been deported once, had made his way back illegally and deliberately did not bring his HIV medication to his asylum screening interview in full knowledge that this would complicate his detention and possible removal, did not matter. In some deep and important sense, the British state, and hence the British people, were deemed by the Court to be responsible for his fate. Whatever consequences of his own decision-making were visited upon him, they were nonetheless somehow for us to absolve. The mechanism through which this attribution of responsibility happened, and generally happens, is, technically, human rights law. But it is not a legal matter, really. We don’t do these things because the law requires it: nothing in the European Convention indicates it – it all derives from lunatic interpretations of its text. And we could in any case change the law if we wished. We do it because we see the role of the British state as saviour and redeemer. We imbue it with redemptive power.
It is worth making clear that this is a relatively new development: we did not use to think like this. An interesting counterpoint to modern immigration cases of the CSM type is the 1980 case of R v Hillingdon London Borough Council ex parte Streeting [1980] 1 WLR 1425, containing one of the famous Lord Denning MR’s very last judgments. The late 1970s is not so very long ago in the grand scheme of things, but to read the judgments in Streeting really is to take a step through the door of a time machine into ancient history: things were very different then.
Sophia Streeting was an Ethiopian woman who had met and married a British man called Alan Streeting when he visited Addis Ababa in 1975. She was 19, he 45; he told her he was divorced and brought her and her infant son to Greece with him to live. He then in 1979 died suddenly of a heart attack while working in Libya, and his company flew his body back to England for burial with Sophia and her son in tow. It was then discovered that actually Alan Streeting had another wife – he had been married previously but never divorced his first wife – and therefore Sophia’s marriage to him was bigamous and a nullity.
I mentioned that things were very different in the late 1970s, and one example of this is that Alan Streeting’s employers, taking pity on Sophia, paid for her airfare back to Greece and then, when she was refused entry back to Athens, paid for her to come back to England and then put her up in a hotel at their own expense while they tried to find council accommodation for her by approaching the local authority on her behalf. (Can you imagine an employer behaving in this way in 2026?) The local authority – again, notice how different things were then – found her a place to live at a B&B while they conducted a worldwide search for a home for her, encompassing Greece and Ethiopia. But, almost six months later, they eventually decided they could not subsidise her accommodation in the country forever, and informed her that they had no obligation to do so, and that her support would cease.
Streeting by this time had been granted refugee status, and was hence lawfully in the country, and applied for judicial review of the decision to cease giving her accommodation support. Pursuant to the Housing (Homeless Persons) Act 1977, local authorities had a duty to provide accommodation to people who were unintentionally homeless and who had ‘priority needs’. According to the Council, however, this duty ought to be read as only being available to people with a ‘local connection’ to some part of England, meaning in effect having been born there; the statute was not intended to be read as applying to foreign nationals.
The High Court and Court of Appeal found in Streeting’s favour. There was nothing explicit in the statute which said that a homeless person must have a ‘local connection’ to some local authority in the country in order to be entitled to the duty in question. And Streeting was therefore entitled as anybody else lawfully in the country. But the judgments were all narrowly limited. All the judges, clearly, felt sorry for Streeting, and who wouldn’t? Nothing that had happened to her had really been her fault, and she was the very definition of somebody made ‘unintentionally homeless’. One would have to have had a heart of stone to have wished to see her and her son turfed out on the street and with nowhere safe to go.
Yet the judges recognised there was force to the council’s argument in policy terms: it cannot be the case, they unanimously agreed, that somebody “homeless overseas should be entitled to come to this country and say, ‘I am homeless in my own country. So you must house me here – at your expense.’” That would be, as more than one of the judges in the Court of Appeal put it, “absurd”. No: the duty in the Housing (Homeless Persons) Act 1977, insofar as it applied to foreigners, only applied to foreigners lawfully here. And that, the judges all felt, made their decision very limited in scope. As Lord Denning MR put it (remember what I said about how different things used to be?):
People from foreign countries are not allowed in [the country] except under carefully prescribed conditions. For instance, they might have to have a work permit: and that would not be given without arrangements having been made for their accommodation. Or they might be admitted as students: and that would not be given unless proper arrangements had been made. And so forth. It must be comparatively rarely that a foreigner is allowed to enter when he is homeless overseas, and will be homeless here — with no means to support himself or herself.
Of course if he is an illegal entrant — if he enters unlawfully without leave — or if he overstays his leave and remains here unlawfully — the housing authority is under no duty whatever to him. Even though he is homeless here — even though he has no home elsewhere — nevertheless he cannot take any advantage of the Acts. As soon as any such illegality appears, the housing authority can turn him down — and report his case to the immigration authorities. This will exclude many foreigners.
“It must be comparatively rarely that a foreigner is allowed to enter… with no means to support himself or herself” – these sound to us like words etched in some dead language on a piece of papyrus discovered in an archaeological dig in Mesopotamia. But of course that is how things were in the 1970s, before various legal changes that took place in the interim; for Denning and his brethren it was barely conceivable that the immigration authorities would simply let people in if they did not have a work permit or student visa and suitable accommodation already arranged. The judges could say with confidence that Streeting was a rare exception who was hardly setting a ‘floodgates’ type precedent. And from their position of faith in the security of Britain’s borders and the competence of the immigration authorities, they were able to be compassionate – to extend to poor Ms Streeting a helping hand and give her a roof over her head when she needed it.
The difference between CSM and Streeting is a stark one. We live now at a time in which it is not only possible for somebody to in effect turn up in the country and say, ‘I am homeless in my own country. So you must house me here – at your expense’ – it is common do so, by the many, many thousands. And yet in the face of this, we commit what in 1980 was perfectly well understood to be an absurdity. We allow it to happen, yes, but we go further – we encourage it by bending every incentive in the direction of encouragement of others to make their way here. The change of outlook and expectation from then to now is truly extraordinary. It is a transformation from a society which, in respect of matters of immigration, once prioritised secure borders and sensible strictness, to one which has basically no interest in border security whatsoever except to encourage yet more illegal crossings. What explains this?
In an introductory foreword to the fourth issue of the 1982 volume of the Harvard Law Review, titled ‘Nomos and Narrative’, the American legal scholar Robert Cover gets us a long way towards grasping this phenomenon when he describes constitutional thinking as tending towards “insular” and “redemptive” models.
Law, Cover tells us, is not just words written on paper; it is an “integrated world” which we “inhabit”. It is imbued with myths, visions, narratives and ideals, and these give it meaning, even while the law itself filters and shapes our perceptions of the world. Law springs from the norms and expectations that make up the shared way of life of a people, and they dwell in it; they stand inside the legal world they create. And this produces an “autonomous insularity”. A people creates and interprets its law, and its law in turn defines how that people perceives reality. Think of the US Constitution’s First Amendment, or the duty we all owe in English law to exercise
“reasonable care” towards those who might foreseeably be affected by our conduct. These are not just rules written on paper; they represent the values of a society and in turn shape how its members look at the world. Americans do not just speak freely because it is the law; they speak freely and the law both reflects and reinforces this characteristic of their society.
Law in this sense of an “integrated world” is what Cover referred to as a nomos. The law is both created and sustained by a shared way of life, but it also serves to sustain that way of life in turn. The people make it, and are defined by it. It tells them who they are, and shapes their attitudes, values – and conduct.
However, Cover notes that this also makes law a site of contestation about values. Sometimes, a group of people desire to effect transformational social change. And this, for obvious reasons, cannot come about within the “autonomous insularity” of the existing nomos. Law must to such a group be completely remade such that a new, better “integrated world”, imbued with the right values, can come into being. And Cover labelled this type of movement “redemptive constitutionalism”, because it takes place within an “eschatological schema”. This postulates:
- The “unredeemed character of reality as we know it”
- The “fundamentally different reality” that should take its place
- The replacement of the former with the latter
What is important about this is that law becomes the very mechanism through which the redemptive process takes place. Instead of actualising “autonomous insularity” it is made to do the opposite: the fact of its capacity to shape and direct the values of those who inhabit it is turned into its essence. And thus society itself is constituted altogether differently – it is changed from something autonomous and insular, deriving its identity and meaning from itself through its law, to something that drives itself forward towards a utopian end, with law its vehicle.
The central question here, as far as I am concerned, is not whether this is a plausible account of constitutional change as it has taken place Britain in the period between 1980, when Streeting was reported, and CSM, in 2021 – because it is – but rather why that constitutional change happened. Clearly, the main proximate cause is the Human Rights Act 1998, which fell in between the two cases and which is certainly credibly described as a type of “redemptive constitutionalism” in action. CSM could not have been decided the way it was decided, and could not realistically have arisen in the first place as a legal dispute, without its existence. Bizarro World interpretations of the Refugee Convention, too, are partly to blame.
However, observing this only postpones the question of causation for another day and for a higher level of abstraction. What is it about Britain, and indeed Western states more broadly, that makes them so uniquely easily seduced into redemptive constitutionalist narratives, and which therefore leads them into adopting such self-evidently ruinous policies? Why has the state taken on the role of God, or perhaps more accurately Christ, in our ongoing struggle with the matter of our place in the moral universe? Why, through the process of secularisation, has our approach to politics become so readily defined by what Cover called an “eschatological schema”? And why has this happened so comparatively rapidly, such that the law as it stood in 2021 was almost unrecognisable from that as it stood in 1980?
Clearly, a need is being met. And clearly that need has roots that go very deep into the Western soul. It is markedly noticeable that developed states outside of Western Europe and its broader family tree of descendants have none of the hang-ups about these matters that we do. It is simply inconceivable that a country such as Japan, South Korea, Taiwan, Thailand or Singapore would enact legislation or interpret existing legislation in such a way that permitted a man in CSM’s circumstances to stay in its jurisdiction for a single moment longer than was strictly necessary to deport him. That is simply not the way things are done there.
But it was not the way things were done here, either, until very recently. And this suggests circumstantially that there is something about post-Christian secularisation in particular that makes it susceptible to the type of redemptive constitutionalism we see evident in immigration law and policy in Britain and elsewhere. It is as though being used to the expectation of redemption for over a thousand years has inculcated its necessity in us so deeply that even in the absence of a belief in a saviour we yearn to imagine that we can be saved. Or, worse, we imagine that since we cannot be saved by a God we no longer generally believe in, we can instead save ourselves, and the rest of mankind with us, through politics.
As Christian belief has faded, in other words, we have ceased to think about, much less understand, the spiritual roots of our society. But we are leaves on its branches all the same, and we remain nourished by its roots, even in much diluted form. This is what gives such passion and vigour to our redemptive constitutionalism (evident not just in respect of immigration matters, of course). And it is what makes our policy choices in this regard so foolish and strange. We are assigning to the state a great weight of expectation that it cannot meet. And the result is that outcomes which a generation or two ago were well understood to be “absurdities” have become routine, and fair-minded, compassionate approaches to matters of immigration and asylum have become twisted into self-destructive frivolity.
Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
Your support is crucial in helping us defeat mass censorship. Please consider donating via Locals or check out our unique merch. Follow us on X @ModernityNews.
More news on our radar
