News focus: Strasbourg in the crosshairs

After defeating legal challenges in the High Court, Court of Appeal and Supreme Court, the government was confident that a chartered flight taking the first group of asylum seekers to Rwanda would take off on Tuesday night.

So, it took the government by surprise when, shortly before take-off, the European Court of Human Rights announced it had granted an urgent interim measure for an asylum-seeker facing imminent removal. The flight did not take off.

Whether the Home Office’s Rwanda removals policy is lawful or not will be determined at a judicial review hearing next month. However, the Strasbourg court’s intervention has renewed another debate – over UK membership of the European Convention on Human Rights.

Even supporters of the convention, including the former lord chancellor Robert Buckland QC MP, found the Strasbourg court’s intervention puzzling. It followed a Supreme Court ruling that the Court of Appeal did not err in law in holding that the High Court was entitled, when assessing the balance of convenience, to proceed on the assumption that the government of Rwanda would comply with assurances provided in the two countries’ memorandum of understanding. The Government Legal Department assured the Supreme Court that, if the appellant were to succeed in challenging the Home Office’s policy, he would be returned to the UK.

So why did the Strasbourg court decide to grant an urgent interim measure, indicating to the UK government that the applicant should not be removed until three weeks after the final domestic decision in his judicial review proceedings?

As we spurn Strasbourg’s alien and inappropriate system, we should devise our own bill of rights

Andrew Tettenborn

In its ruling, which the Gazette received at 7:39pm on Tuesday, the ECtHR said: ‘The court had regard to the concerns identified in the material before it, in particular by the United Nations High Commissioner for Refugees, that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”.

‘In light of the resulting risk of treatment contrary to the applicant’s convention rights as well as the fact that Rwanda is outside the convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues.’

Under rule 39 of the Rules of Court, the ECtHR may indicate interim measures to any state party to the European Convention on Human Rights. Such requests are granted on an exceptional basis, when the applicants would otherwise face a real risk of irreversible harm.

Home secretary Priti Patel told MPs that she was surprised and disappointed by the Strasbourg court’s intervention. Asked about leaving the convention, she said only: ‘It is right that I am in the process going back to the European Court of Human Rights and we will continue to work with the Court of Appeal, the Supreme Court and the High Court, because it is important that we understand their rulings and work with them in any way possible to deliver our policy.’

But, writing for the Daily Mail, Andrew Tettenborn, a law professor at the University of Swansea, said the UK ‘ought to sack’ the European Court of Human Rights. ‘As we spurn Strasbourg’s alien and inappropriate system, we should devise our own bill of rights, reinterpreting the convention’s articles in a sober and limited way appropriate to this nation in this century. UK judges should rule on UK cases,’ he said.

However, Robert Buckland, writing for the Daily Telegraph, counselled caution. While he found Strasbourg’s decision ‘hard to understand’, leaving the convention on this basis ‘would be using a political sledgehammer to crack a legal nut’.

Buckland suggested reform, not revolution: ‘Our government led reforms to Strasbourg processes back in 2012 with the Brighton Declaration… The court should continue the process it began at Brighton, and increase the scope of the “margin of appreciation” it gives to member states. While it should still be unafraid to find violations due to procedural failings, it should not get into the weeds of domestic decisions.’

The Home Office’s policy was up in the air. So too the UK’s membership of the convention.