Impartial Activism

What does it mean to be impartial? As a former journalist, and especially as someone who used to work in fact-checking journalism, it’s something I’ve thought about a lot. It’s not just about objectively weighing the evidence, it’s about showing the readers that you’ve weighed it, and taken contrary evidence into account. But a story without a point of view is impossible, or perhaps just unreadably boring. One has to make determinations about which voices to include and how to present them, which is always a political judgment.

I suspect the judiciary has been engaged in a similar project, and prove their impartiality to the public. Just a few days ago, Robert Jenrick accused a crop of immigration judges of being “activists”, based on their prior pro-bono work for asylum detainees. “Enough of activist judges!” read a cover from the Daily Express last week. These political stunts, to be blunt, are not particularly credible, and are intended to apply pressure on the judiciary to deport more people. The Lady Chief Justice and the Attorney General have both publicly chastised politicians for criticising how immigration judges operate — if you want more deportations, change the law we are bound to apply, they say. But I do think as a cumulative drumbeat of negative media and political attention is beginning to draw a response. The judiciary is aware that some believe they are deciding cases based on pro-immigration bias — therefore, they’re trying to demonstrate impartiality.

We can best see this dynamic with the so-called politically-charged “stunt cases”. Epping Forest Council v Somani Group Hotels is one such stunt case, where a local council asked for an injunction to evict all of the asylum seekers housed in a local hotel. This is a political problem routed through the legal system, and the judiciary, I gather, is none too pleased about it.

The home office has a policy of housing asylum seekers around the country. Since there is basically no available housing, derelict hotels are the preferred stopgap. The Bell Hotel in Epping was one such derelict hotel: in decline for several years — “no longer the community hub for social gatherings and weddings that it had been 15 – 20 years ago” according to the judgment — and it had shut down during the-/ pandemic. It was used as a temporary homeless shelter, and then to house asylum seekers from 2022-2024, and then it closed again, and then the Home Office approached them in April 2025 with another offer of bloc-booked asylum seekers.

The hotel operators initially told Epping Forest Council it would apply for planning permission, then the Home Office told the hotel it probably wasn’t necessary, and then the hotel said they were withdrawing their application. At no point did Epping Forest Council even acknowledge these petitions. That all changed this summer, when a group of protesters gathered at the Bell Hotel when a migrant housed there had been charged (and later, convicted) with sexually assaulting a minor. That protest attracted professional racists from all up and down the country, who made the hotel and the town a flashpoint for criticism on social media. Things escalated: security staff were attacked. Epping Council wanted the migrants and protestors out, and the problem to go away.

Rather than challenging the government directly on public law grounds, Epping Forest Council sued the hotel and alleged that housing migrants there amounted to a “material change of use” under planning law. I want to note the cynical decision to suddenly decide planning permission was important, even though they received the application more than a year and a half ago.

Epping Forest Council asked for an injunction under TCPA 187b to evict the asylum seekers, and for interim relief of the same before the full case. Interim injunctions are granted on discretion of the court, and follow the “balance of convenience”. The first two steps are easy to rush through: is there a serious issue to be tried? Check. Both the Council and the Hotel group agree that it’s possible. Next: Would just paying damages be an inadequate remedy? Check. They’re asking for an injunction, an equitable remedy, rather than damages at common law. So: is it more convenient to grant the relief or not? This is a vibes-based test disguised as somber legal principle. That makes it particularly susceptible to political sensitivities.

Judge Eyre in the lower court said that the protests and perceived levels of crime were a problem, but they were less weighty than the public interest in incentivising all parties to undergo the democratic planning process. He granted the interim injunction on that basis and blocked the Home Office from intervening. Judge Eyre made sure to say this was “fact sensitive”, limiting the decision to this council and this hotel, c*riticising both the Home Office and the council for failing to engage with the democratic process, either through planning permission, or through taking less escalatory steps before legal action. He emphasised that this was a case of “technical issues” about planning law, and he would focus his judgment on the “narrow dispute” of principles of injunctive relief.

The Court of Appeal overturned that said that he’d failed to take into account the fact that the Home Office would have to find somewhere else to stick all those people, and we don’t really want to incentivise racist protest, or for people to use “potential crime” as an excuse for dodging planning law. They also allowed the Home Office to intervene on the merits of the case in October, saying that the Home Secretary’s rights were plainly affected, as they have a statutory duty to house them. The trio of judges also emphasised — literally underlining — that their decision had nothing to do with politics:

Planning law has emerged as a site of contest for political problems with asylum, because the Home Secretary has a duty to house asylum seekers. That conflicts with local authorities who have a duty to house local vulnerable people. There is not really any housing stock for either of these groups of people. To lots of onlookers, it looks like foreigners are breaking the law to enter the country and then jumping the queue. Local authorities have control over planning and land use, and they can stymie central government attempts to swoop in and fill otherwise empty buildings with asylum seekers.

Previous solutions to get around planning objections have included the Bibby Stockholm, which was a disease-ridden prison barge, and the country of Rwanda. The Crown has jurisdiction over the sea, so no local authorities can block it with planning law, and of course Rwanda has jurisdiction over Rwanda. The fact that all of these options are deeply inhumane doesn’t really enter into the equation. The asylum seekers have absolutely no say over where they go.

What do we make of this judgment? I feel it’s important to zoom out. The conflict at its heart is angst over legal sovereignty. “Human Rights”, although imported into domestic law via the HRA 199, come from the European Convention on Human Rights, and are adjudicated in Strasbourg. To some, it stings to see British judges appear to favour the rights and privileges of foreigners and foreign laws above elected authorities. Hence the need to perform impartiality.

So in this context, I read the first instance judgment as an attempt to tell politicians to stay out of it. Judge Eyre in the High Court knows this is a cynical use of planning law to deal with a political problem. He is therefore broadcasting to any interested onlookers: I will just look at the literal question before me, and keep my nose out of the political context. You lot can sort that problem out. Following this, made sure to specify in his judgment that he was not setting any sort of precedent and that he was deciding on the narrow facts of this case — what looked at first like a straightfoward win to the council was actually a boundary. He also blocked the Home Office from intervening, which has the bonus of literally keeping politicians out of it. This sort of impartiality says yes, I know this is a political case, but that’s not my problem. The legal system deals with all cases equally, bad faith or not.

The Court of Appeal was alarmed. They don’t want the justice system to be misused for political stunts. They don’t want to incentivise protests on the basis it can legally block government policy and encourage other councils elsewhere. Nor do they want to broadcast to the government that they’re going to obstruct their immigration policy. Instead, they overturned the injunction and allowed the Home Office to intervene as a party in the case. This sort of impartiality identifies this stunt case as something that should be sorted out by democratic rather than legal process. The system is for legal disputes, not political ones.

When the full case is heard next week, it’ll come down to whether there’s been a material change of use from a hotel to something else, and I’m sure it will be written in such a fact-sensitive way that will be incredibly difficult to replicate elsewhere. A “material change of use” is about what it sounds like: one can’t turn one’s home into a public-facing shop or a busy office space without permission from the local council. I can see both sides of the case here. One the one hand, it shouldn’t really matter the origin of the people staying in the hotel, why they’re there, or who’s paying the bills — it’s still a hotel and it still has guests. On the other hand, the central government basically turned an otherwise empty building into a dormitory with semi-permanent residents without asking the neighbours at all.

A final note: Case law has found that asylum seekers have a right to protection from specific rather than general threats of racial harassment, so long as the Home Secretary is aware of those threats. Since the racists protesting outside are livestreaming their grievances, the Home Secretary is absolutely aware of those threats. The 138 migrants housed in the Bell Hotel however will not be included in any representations before the court in this case. They are not a party to the case and the court cannot compel them to intervene. But if we were truly trying to produce impartial justice, those voices too would have to be heard.