Rwanda asylum-seekers plan: Why the ECHR intervened and what happens now

How and why the Government’s flagship policy of sending Channel migrants to Africa was stalled and what Britain can do next

The Rwanda deportation flight at Boscombe Down Air Base in Wiltshire
The Rwanda deportation flight at Boscombe Down Air Base in Wiltshire Credit: Getty Images Europe

European judges blocked a British government flight to deport asylum seekers to Rwanda in a last-minute move that overruled the UK Supreme Court on Tuesday night. 

Here we look at how and why the Government’s flagship policy of sending Channel migrants to Africa, which it insists is legal and necessary to stop people smuggling, was stalled. 

What has happened?

The European Court of Human Rights (ECHR) has issued an interim measure to stop an Iraqi asylum seeker being flown to Rwanda on Tuesday.  

The court told the Government that the man, named only as KN, should not be removed until three weeks after the final domestic court decision in a judicial review into his deportation. 

What is the European Court of Human Rights?

The court is the legal arm of the Council of Europe and is based in Strasbourg, France. It interprets the European Convention on Human Rights, which is given force in the UK as part of the Human Rights Act. 

The Court has the power to make binding judgement and decisions in the UK, which can override decisions made by British courts and order the government to pay compensation.

Who is KN?

He was born in 1968 and left Iraq in April 2022. He travelled to Turkey and across Europe before crossing the Channel by boat. He claimed asylum on May 17. On May 27, a doctor issued a report indicating he may have been a victim of torture.

On June 6, KN was told his claim had failed and he was told he would be sent to Rwanda on June 14. The application to the ECHR was made on June 13 before its decision on the evening of the flight. 

What do British courts say?

On Monday, the UK Supreme Court threw out a bid by campaigners to stop the flight for Rwanda from going ahead. 

A High Court judge refused on Friday to grant a temporary injunction to block the flight, and on Monday three justices on the Court of Appeal upheld that decision. 

A judicial review into the legality of the Rwanda policy will be held in six weeks but the British courts said the flights could go ahead in the meantime. 

What is an interim measure?

They are orders issued under Rule 39 of the rules of the ECHR. They are only issued on “an exceptional basis, when the applicants would otherwise face a real risk of irreversible harm”.

The measure delays the deportation until three weeks after the judicial review.

How does the ECHR justify the decision?

It points to the criticism from the United Nations High Commissioner for Refugees, who has suggested asylum seekers in Rwanda will not have access to fair procedures on their claims. 

This could breach KN’s human rights, which are protected by the Convention.The ECHR said the risk was exacerbated because Rwanda is not signed up to or bound by the Convention. 

There was also no legally enforceable mechanism to make sure KN could be returned to the UK if the judicial review found the policy was illegal.

The decision points to a High Court finding that questions over the decision to treat Rwanda as a safe country gave rise to “serious triable issues”. The interim measure will give time for UK courts to consider that, it argues. 

Has anything like this happened before?

Yes. In January 2012, the ECHR blocked the deportation of radical cleric Abu Qatada from the UK to Jordan. It said there was a risk that evidence obtained under torture could be used against him there. 

Can the UK simply ignore the ECHR?

To a point. The UK is obliged to abide by the ECHR’s rulings by the Human Rights Act, which says it must take its decisions “into account”.

However countries can and do resist decisions by appealing and delaying implementing them.

In 2004, the ECHR ruled that refusing prisoners the right to vote infringed their human rights and later rejected a UK appeal.

Parliament rejected the Government’s attempts to introduce legislation giving prisoners the right to vote.

A 12-year stand-off was ended in 2017 after the court accepted a British compromise offer to give prisoners with short sentences on temporary release the right to vote.

It is unlikely the Government will take similar action over an interim measure, which does not bar the flight to Rwanda eventually taking place but only delays it until three weeks after the judicial review into the policy.

Ignoring the ruling also carries political risk because it would draw accusations that the UK was encouraging countries with poor human rights records, such as Russia, to ignore ECHR rulings.

Russia is set to leave the ECHR in September after accusations of war crimes in Ukraine.

How can this happen after Brexit?

The Council of Europe is not an EU body. Founded in 1949, it has 46 members, including 27 members of the EU.  While the UK left the EU with Brexit, it stayed part of the Council of Europe, which was founded after the Second World War to uphold democracy, the rule of law and human rights. 

Can’t the UK leave the ECHR?

We could, but doing so would have ramifications for Brexit agreements with the EU on extradition of criminals and lucrative data adequacy treaties which are conditional on continued membership of the convention. 

It would also bring reputational damage to the UK, which played a key role in setting up the Council of Europe and the ECHR after the war. 

What happens next?

The interim measure could set a precedent and is likely to encourage other asylum seekers being sent to Rwanda to also make applications to the ECHR. It could mean that the expensive flights are delayed until after the judicial review.

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