Clash on UNHCR at heart of European ruling on UK-Rwanda deportations

European court was persuaded by UN agency views that the British judge did not consider crucial

The Rwanda deportation flight at Boscombe Down Air Base near Wiltshire, England, was grounded at the last minute. Dan Kitwood / Getty Images

When British officials first travelled to Rwanda to discuss an agreement to send some migrants who arrive in the UK as stowaways to the African country, the issue of legal challenges was top of the agenda.

Not only was London prepared to grant certain undertakings to Rwanda, it also needed to ensure the set-up on the ground — particularly around the treatment of those deported, the options granted to those people by Rwandan authorities and the process around resettlement — would convince the courts that deportees' rights were not being infringed.

The British courts have not yet made a ruling on these issues but judges have refused to stop the deportation flights, finding the government had done its groundwork and would abide by any later rulings.

The European Court of Human Rights took a different stance when asked to consider the matter on Tuesday, grounding the first flight.

The ECHR judge granted the appeals while the passengers were on their way from a detention centre near Heathrow to Boscombe Down in Wiltshire, from where a chartered aircraft — estimated to have cost the taxpayer £500,000 and counting — was waiting to take them to Kigali.

After reviewing the case of an Iraqi man, who crossed the Channel by small boat before claiming asylum in May, the ECHR said his rights could only be safeguarded by stopping the deportation until a court considered his appeal.

A risk of ill-treatment in Rwanda, an absence of a legally enforced mechanism to return to the UK, and the fact the African state was outside the ECHR, formed reasons for the court to conclude that an injunction should be granted.

Similar injunctions were later granted for the remaining deportees until none were left. Its ruling took into account the assessment of the UN High Commissioner for Refugees that asylum seekers do not have access to “fair and efficient procedures for the determination of refugee status” in Rwanda.

Judges in the UK Court of Appeal took the view that UNCHR reports should not be decisive, noting the government had presented formal documents on arrangements for transfer and how the undertakings would be put into practice. Justice Jonathan Swift concluded that Home Secretary Priti Patel was entitled to pursue plans to deport asylum seekers on Tuesday’s scheduled flight, adding that a judicial review of the policy in July would conclude whether or not it was legal.

In contrast, the ECHR said no person should be forcibly removed to Rwanda until at least three weeks after the July hearing was concluded.

The last-minute intervention was a welcome turn of events for the growing number of vocal and active oppositions to the controversial policy. More than 160 charities and campaign groups have criticised the £120 million ($145m) plan to use Rwanda as the UK’s offshoring asylum centre. Several public figures, including the entire senior leadership of the Church of England and Prince Charles, have denounced the plans.

While a boon for campaigners, the ECHR ruling has led to fears the UK might withdraw from the European Courts system altogether, after Prime Minister Boris Johnson suggested “some laws” might need to be changed to “help us along”.

“The legal world is very good at picking up ways of trying to stop the government from upholding what we think is a sensible law,” said Mr Johnson when asked whether it was time for the UK to withdraw from the ECHR — which is not a European Union institution — following the court’s judgement on Tuesday evening.

“Will it be necessary to change some laws to help us as we go along? It may very well be and all these options are under constant review.”

However, Therese Coffey, work and pensions secretary, looked to downplay the suggestions of a withdrawal on Wednesday morning saying she was “not aware of any moves” to do so.

“Right now I am not aware of any decisions or even hints about that,” she told Sky News.

Ms Coffey said she expected the government would challenge a late-night ruling by the European Court of Human Rights, which led to the cancellation of the first deportation flight taking asylum seekers to Rwanda.

“The most important thing is that we tackle this issue right now. We will go back, I am sure, to the ECHR to challenge this initial ruling.”

What is the European Court of Human Rights?

The European Court of Human Rights is an international court set up in 1959 to rule on individual or state applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.

Its judgments are binding on the 46 Council of Europe member states that have ratified the Convention.

What is the difference between the Council of Europe and the European Union?

The Council of Europe is the continent’s leading human rights organisation, while the European Union is an economic and political partnership.

While Brexit represented the UK’s departure from the European Union, it is still a member of the Council of Europe and therefore remains beholden to the European Court and European Convention on Human Rights.

What is the European Convention on Human Rights?

The European Convention on Human Rights was developed amid the Second World War to ensure that governments would never again be allowed to dehumanise and abuse people’s rights with impunity.

It came into full effect in 1953 and intends to serve as a simple and flexible roundup of universal rights, which could be adapted over time.

Articles listed in the Convention include the right to a fair trial, right to liberty and security, and the prohibition of torture and cruel, inhuman and degrading treatment.

Why did the European Court of Human Rights intervene in the Rwanda flight?

The European Court of Human Rights confirmed it had granted an urgent interim measure with regards to an Iraqi national, and it is understood the court was considering a number of further requests.

The appeals were considered by an out-of-hours judge, overruling the UK rulings.

It is understood that, at present, there is not a route for the Home Office to appeal.

The European Court has indicated to the UK government that the Iraqi national should not be removed to Rwanda until three weeks after the delivery of the final domestic decision in his ongoing judicial review proceedings.

How does the European Convention relate to the UK’s Human Rights Act?

The UK was the very first nation to ratify the convention in March 1951.

The Human Rights Act of 1998 enshrined the European Convention on Human Rights into British law, allowing the rights guaranteed by the Convention to be enforced in UK courts.

However, the government has vowed to scrap the Human Rights Act and replace it with a new Bill of Rights, after a pledge to reform human rights laws was included in the Tory manifesto in 2019.

The government said the changes will strengthen “freedom of speech” and bring “proper balance” between the rights of individuals and effective politics.