July 2022 Newsletter Newsletter

The Flight that Did Not Take Place

British Courts: A judicial review on the government’s policy to send refugees to Rwanda will take place in July. In the meantime, numerous organisations applied for injunctions to block the first flight, due to take off on 14 June, including the Public and Commercial Services Union, Care4Calais and Detention Action. In rejecting the application for a temporary injunction, Mr Justice Swift said ‘it is important for the secretary of state to be able to implement immigration control measures and preventing that would be prejudicial to the public interest’. He also said that the risks outlined by the claimants were ‘in the realms of speculation’. He granted permission to appeal to the Court of Appeal which subsequently upheld his initial decision. The High Court also dismissed a challenge by Asylum Aid and Freedom from Torture. Almost 100 migrants have submitted legal challenges asking to stay in the UK.

European Court of Human Rights: On the morning of 14 June, just seven men had been expecting to be sent to Rwanda. Through the day, four of those made individual claims to the British courts to stop them being forcibly sent. Three more men had their deportations stopped by an interim order by the European Court of Human Rights (ECtHR). The ECtHR ruling was based on its belief that there was a real and imminent risk of severe and irreversible harm to the men. It gave four main reasons:

  • The evidence from the United Nations High Commission for Refugees that asylum seekers in Rwanda would not have access to a fair and efficient process to determine their asylum claim.
  • The UK courts had acknowledged that this evidence raised very serious issues, even though they decided not to stop the removal.
  • Enforcing human rights in Rwanda would be difficult as it is not part of the European Convention on Human Rights.
  • There is no legally enforceable way of ensuring someone would be returned to the UK if the policy was found unlawful.

No deportations to Rwanda took place on 14 June. The flight to nowhere is thought to have cost around £500,000. The men who were reprieved? Five are victims of torture or trafficking; two are married; one has extreme PTSD due to previous trauma; and one has a son in Carlisle. The government has appealed against the ECtHR decision.

Concerns about ECtHR Decision: Some newspapers and MPs were highly critical of the ECtHR’s decision and there have been calls to pull Britain out of its jurisdiction. It is worth recalling the rationale for the European Convention on Human Rights (ECHR). It was established in 1953 on the basis that the state should not be left to safeguard individual’s rights because it was sometimes the state which was a threat to them. The ECtHR did not rule that the Rwanda plan was illegal; it acknowledged that the High Court will test this in July. It was simply protecting an individual against the state, i.e. doing what it was intended to do.  

It will also be very difficult to pull out of the ECHR and the jurisdiction of the ECtHR. Even if the government succeeded in getting legislation through the House of Commons and the House of Lords, it would require the consent of the Welsh and Scottish Assemblies; even if it tried to override them, it would have to rewrite and scrap the Good Friday Agreement; and the Brexit deal also locked in the UK’s commitment to the ECHR.  

The Government’s Response – The Bill of Rights Bill: The government has signalled that it will restrict the role of the ECtHR in the Bill of Rights Bill introduced into Parliament on 22 June. This would see the kind of interim order made by the ECtHR in the case involving deportations to Rwanda be non-binding in the UK; ECtHR case law would not necessarily be binding either. A Supreme Court would be established here as the ultimate arbiter on human rights.  The government has said that the planned legislation will help stop ‘trivial’ human rights claims by introducing a so-called permission stage requiring people to show that they have suffered a significant disadvantage before their claim can go ahead. It will also give MPs the power to change court rulings when judges interpret laws in a way Parliament never intended (or the government does not want?). Many human rights organisations have already spoken out against the Bill, with Amnesty’s chief executive Sacha Deshmukh calling it an ‘aggressive’ attempt to ‘roll back’ the laws, while Martha Spurrier, director of Liberty, said it was ‘a blatant, unashamed power grab’. We will say more about what Amnesty calls the Rights Removal Bill in our August Newsletter.