SJ Interview: Thom Brooks

Thom Brooks is Professor of Law, Ethics and Government at Durham University, Principal of Collingwood College and the former, longest-serving Dean of Durham Law School. His work spans citizenship and immigration, criminal justice, legal and political philosophy, and the ethical implications of new technologies. His evidence has informed parliamentary consideration of citizenship and settlement policy, including the House of Lords’ recent inquiry into settlement, citizenship and integration. 

You began in political philosophy before becoming Professor of Law, Ethics and Government. How has that background shaped your approach to practical legal reform?

It has had a very significant influence. I did not set out to work in law or in a law school, and I did not study law before entering academia. That made me a slightly unusual law school dean, but it has also proved useful.

My PhD was in philosophy. One of philosophy’s great strengths is clarifying the concepts we use, which has obvious relevance to law. But it also encourages you to step back and see the wider picture: how different elements fit together, and how we make sense of ideas such as justice, freedom and knowledge. That training has been extremely valuable.

I saw its practical relevance very quickly through my own experience of immigration. When I was completing a temporary work visa and applying for permanent residence, I encountered a system that was difficult to navigate. It was hard to obtain clear, reliable advice, and immigration law was not then widely taught because it was outside the qualifying law degree. Many specialists focused on one route or visa category rather than the system as a whole.

That made the need for a bird’s-eye view very clear. Legal reform requires us to understand how apparently separate rules interact, to clarify what the relevant concepts mean, and to identify gaps between the formal system and people’s experience of it.

The same applies in criminal justice. Philosophers can speak about the purposes of punishment in ways that are quite different from judges’ language about sentencing. I have found the relationship between theory and practice continually productive. Each improves the other: theory can expose incoherence or unexamined assumptions, while practice tests whether an attractive idea can genuinely work.

Your research has influenced Parliament, government and the courts. What have you learned about turning academic ideas into workable policy?

It was not an obvious path for me. When I began my career, I knew very little about Parliament or the Westminster system. I am American, and I did not come to the UK with a network of political contacts or family connections here. My route into that world was largely fortuitous.

One of my first students, Luke Sullivan, soon became a Labour Party adviser, first in the Whips’ Office under Gordon Brown and now with Andy Burnham. He encouraged me to get in touch when I was in London and introduced me to people. Over time, I came to know parliamentarians and understand more clearly what they, judges and civil servants need when considering reform.

Academics understandably become excited by an idea because they believe it is right. But that is only the beginning. A policymaker must also ask whether it is implementable, what it will cost, whether the public will accept it, how it will be administered and what its unintended consequences might be.

That wider context is crucial. A proposal needs to respond to the practical constraints faced by those expected to deliver it. It also needs a clear account of the problem it solves and why existing arrangements cannot solve it. These were lessons I learned outside the classroom and without formal training, but they have become central to my approach.

The best academic engagement is not simply about presenting a finished solution. It is about listening to those who understand the operational realities, refining the proposal and recognising the difference between an intellectually compelling argument and a policy that can survive contact with the real world.

Your evidence featured prominently in the House of Lords’ recent report on settlement and citizenship. Which recommendations should immigration practitioners now press the government to adopt?

There are two areas where practitioners could make a particularly constructive contribution: returns arrangements with Europe, and a more ambitious approach to migration that supports growth.

The previous government placed great emphasis on enforceable barriers. It rejected the Rwanda policy as broadly unworkable or too expensive, while pursuing measures intended to address so-called pull factors, improve enforcement and increase cooperation with the EU. But I have long argued that returns arrangements with Europe need much more attention.

The Dublin Regulation no longer applies, and a new system is now in place. Yet participation in an effective returns framework mattered. There were never enormous numbers of returns under Dublin, but there were also comparatively fewer people arriving across the Channel. The deterrent effect appears to have been underestimated.

The current arrangement with France may be helping to some extent, but we need something larger and more creative. The UK does not need to rejoin the EU or the EEA to cooperate with European partners on returns. The challenges posed by criminal gangs, secondary movements and what is sometimes called asylum shopping are not uniquely British problems. They require a robust shared response.

Immigration, EU and public law practitioners have a great deal to offer in helping government design legally workable arrangements. I think ministers should listen closely.

But the agenda should not be solely restrictive. There is also substantial scope for better investor visas and more growth-focused routes. The United States provides one useful model: investment can be linked not simply to funds being deposited, but to evidence that new jobs have been created for citizens or permanent residents. A British equivalent could make a more meaningful contribution to local growth.

The debate too often focuses on the border measures that dominate newspaper coverage. Practitioners should press for both credible enforcement and a system that better attracts investment, talent and economic contribution. That would help migrants, businesses and the wider public alike.

From your experience advising governments and Parliament, what single reform to citizenship, immigration or criminal justice should be prioritised, and why?

I will be slightly naughty and offer two closely connected answers.

The first is a thorough refresh of the Life in the UK test. Successive governments have said since at least 2022 that the test will be revised, and the present provider’s contract ends next year. A new contract will be required in any event. The legal requirement already exists in primary legislation, so this does not require the creation of a wholly new statutory framework.

The case for reform is not merely that a test should be accurate and fair, although it plainly should be. The larger opportunity is to hold a public consultation on the expectations of British citizenship. What do we want people who become British citizens to understand? What does belonging mean?

There has not been a comparable public consultation since Sir Bernard Crick’s work around the original test more than two decades ago. It was sometimes mocked at the time as an impossible effort to define Britishness, but its value was in bringing people together to identify a shared civic identity. That means focusing on common values and public institutions, rather than treating Britishness as an ethnic or partisan possession.

Three editions of the test have now appeared, with a fourth on the way, but there has never been a proper public assessment of whether it assists integration. That matters. Around three million people have taken it, and it affects permanent residents as well as those applying for citizenship. It is not a marginal issue.

My earlier work on the test attracted support across the political spectrum. The Independent, Guardian, Telegraph and Daily Mail could all agree that it should not contain incorrect answers and should be fair. In a polarised debate, that is a useful place to begin.

My second recommendation is an integration commission or a revived Migration Impacts Forum. The former forum existed briefly until 2010, alongside the Migration Advisory Committee. The MAC concentrated largely on economic questions, such as salary thresholds, while the forum considered migration’s impact on local communities. That distinction matters.

You support restoring the Migration Impacts Forum. Would this improve policymaking and public confidence, or does the breakdown in trust run deeper?

I think it would make a real difference. Immigration rose sharply up the public-concern agenda after the forum was abolished in 2010. People’s concerns are often connected to perceived local impacts: pressure on housing, the NHS and public services, and the question of whether migration is fairly contributing to the tax base. The evidence varies between places, but government needs an independent, credible mechanism for identifying pressures and responding more quickly.

The original forum was jointly chaired by an immigration minister and a communities minister. My preference would be to locate responsibility for social cohesion principally within the Ministry of Housing, Communities and Local Government, while ensuring close cooperation with the Home Office. Social cohesion should not be treated solely as a Home Office concern.

A revived body should bring together local government, the NHS, academics and other relevant expertise. Lawyers should also have a clear place within it. Migration policy cannot be reduced to economics or headline numbers; it has legal, administrative and community consequences.

Restoring such a forum would not instantly solve every issue of trust. Public confidence runs deeper than the existence of one committee. But it would demonstrate that government is taking seriously the effects experienced in particular communities rather than allowing those concerns to be expressed only through polarised national rhetoric.

The proposed earned-settlement model could move many migrants from a five-year to a ten-year route. Where is the line between legitimate conditionality and retrospective unfairness?

As someone who came through the system myself, I am conscious of not wanting to pull the ladder up behind me. I became a permanent resident in 2009 and a British citizen in 2011. I remember the lack of clarity around requirements, and a Life in the UK test that included answers which were simply untrue. Fairness and transparency matter deeply.

My initial reaction to the proposed ten-year route was concern. But the detail of the white paper suggests that a sizeable number of people may never need to complete ten years.

A migrant on a work visa who works for five years may receive a five-year reduction and be able to apply for indefinite leave to remain after five years. Salary and other requirements will still apply, but many workers are unlikely to be materially affected by the headline ten-year figure.

I was also pleased to see recognition of non-economic contribution. In a 2022 Fabian pamphlet, I argued that unpaid voluntary work for charities, including religious organisations, should count towards a reduction in the residence period. The white paper proposes a three-to-five-year reduction for charitable contribution. The reductions are not stackable beyond five years, but the proposal is significant for spouses with childcare or other responsibilities who are not in paid work.

Work and civil-society contribution can both be meaningful forms of integration. Encouraging each is, in principle, defensible.

The position of refugees is substantially more difficult. A proposed twenty-year route creates serious risks, especially because the good-character requirement can be failed relatively easily by matters such as convictions or bankruptcy. That raises much more serious questions of proportionality and fairness. The likely effect may be to encourage people to move into work or family routes, but the impact assessment will matter enormously.

Your unified theory combines retribution, deterrence and rehabilitation. Is current sentencing policy principled, or increasingly determined by prison capacity?

At present, prison capacity is exerting a powerful influence. I do not think the system is principled in the right way.

England and Wales has five statutory purposes of sentencing. Judges and magistrates must ground sentences in one or more of them, although they need not specify which or show whether the purpose is likely to be achieved. The multiple-purposes approach is broadly right: retribution, deterrence, rehabilitation and restoration should each have a role.

The problem is that the sentencing guidelines do not cohere with those purposes. Where, for example, are deterrence and rehabilitation in the guidelines? They are not clearly present. Sentence lengths may reflect historic legislative choices, sometimes dating back many decades, rather than a transparent contemporary account of desert, deterrence, rehabilitation or public protection.

There is a disconnect between the purposes said to justify punishment and the way sentencing is actually structured. That is not a new concern, but it has become impossible to ignore when prison capacity is so constrained.

I favour a unified approach to punishment, based around the defence of rights, which gives the various purposes a coherent place. But whatever theoretical model is adopted, the present arrangements need much more serious work. They are neither sufficiently coherent nor evidently delivering the outcomes they promise.

As a former law school dean and now a leader working on AI and ethics, what skills should law students and early-career solicitors prioritise?

First, intellectual curiosity. Be open-minded about the issues at stake and the areas of law that may come to matter to you. I did not begin by intending to work on immigration or criminal justice. Those interests developed through experience, curiosity and a desire to understand problems that mattered.

Students and junior lawyers should let their concern for justice and the law act as a lodestar, rather than closing themselves off too early to unfamiliar fields or ideas.

Second, technological capability. AI is already changing legal work. At a legal education event, a senior legal figure made the point bluntly: teaching legal concepts alone is not enough to prepare people for practice. Lawyers need to understand how technology can help them do more work and do different work.

Firms are not necessarily recruiting fewer people, but they are expecting more from those they recruit. The profession has changed markedly in the past three to five years. The Solicitors Regulation Authority and the SQE need to treat technology as a core part of professional readiness.

That does not mean abandoning legal judgment, ethics or fundamental legal knowledge. It means understanding how to use technology intelligently, responsibly and critically. For the next generation of solicitors, that capacity will be as important as many of the traditional skills taught in legal education.