The first deportation flight of migrants to Rwanda which had been due to take off yesterday was cancelled at the last-minute following a major intervention from the European Court of Human Rights.
All migrants were removed from the plane at Boscombe Down in Wiltshire after the court granted an urgent interim measure in regards to an Iraqi national, and was considering a number of further requests.
Home Secretary Priti Patel described the European Court of Human Rights intervention as ‘very surprising’, adding that ‘many of those removed from this flight will be placed on the next’.
As Prime Minister Boris Johnson insisted the Government would not be deterred from its policy, here are some of the key questions surrounding the European court and how it relates to the UK and this case:
Why does a European court have jurisdiction in the UK after Brexit?
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 in the European Convention on Human Rights.
While Britain officially left the European Union on January 1, 2021, it did not leave the European Convention on Human Rights.
That means judgements by the European Court of Human Rights are still binding on Britain, because it is one of the 46 Council of Europe member states that have ratified the Convention.
While Brexit stopped European Union law superseding UK law, including on areas such as agriculture, it did not affect the standing of the European Convention on Human Rights in Britain.
The Human Rights Act of 1998 – when Tony Blair’s New Labour government was in power – enshrined the European Convention on Human Rights into British law, allowing the rights guaranteed by the Convention to be enforced in UK courts.
The Government has previously 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.
So why did the European Court of Human Rights intervene in the Rwanda flight?
Left-wing lawyers appealed through the UK court system in the case of an Iraqi asylum seeker, referred to as KN, who was due to be on the first flight to Rwanda last night.
They appealed on the grounds of whether Britain’s policy is in accordance with the Human Rights Act, whether the Home Secretary has the right to carry out the removals, the rationality of her claim that Rwanda is generally a ‘safe third country’ and whether there is enough malaria prevention in the country.
Having exhausted High Court and Supreme Court routes in the UK to prevent KN being put on the flight, the man’s lawyers went to the European Court of Human Rights, which they could do because Britain is still a member of this despite Brexit.
The European Court of Human Rights then issued an interim measure in a last-ditch intervention, which said KN should not be sent to Rwanda until a full decision on the legality of the Government’s policy has been reached in the domestic courts.
The court also said it was effectively barring KN from being sent to Rwanda under its rules which apply when there is an ‘imminent risk of irreparable harm’.
The appeals are understood to have been considered by an out-of-hours judge on papers, overruling the UK rulings. It is understood the European Court of Human Rights was considering a number of further requests.
The European Court of Human Rights added that the UK Government must not remove KN until three weeks after a full judicial review by the UK High Court has taken place into the legality of the policy – which is due in late July.
What happens next in the courts?
A full High Court review of the Rwanda policy is expected in July.
In its ruling, the European Court of Human Right acknowledged concerns about access to ‘fair and efficient procedures for the determination of refugee status’ in Rwanda.
It also considered the fact that Rwanda is not part of the European human rights framework and the absence of ‘any legally enforceable mechanism’ to return KN to the UK if there is a successful legal challenge to the policy.
The court ruled that KN should not be removed until three weeks after the delivery of the ‘final domestic decision in the ongoing judicial review proceedings’ – something which could put the Government’s Rwanda policy on ice for months.
The grounded Rwanda deportation flight EC-LZO Boeing 767 at Boscombe Down Air Base in Wiltshire last night
What will happen to the next Rwanda flight?
The Government still intends to go ahead with the next deportation flight to Rwanda – with Home Secretary Priti Patel saying that preparation ‘begins now’, adding that she will ‘not be deterred from doing the right thing’.
Work and Pensions Secretary Therese Coffey said she is ‘highly confident’ that the Government will be able to go ahead with the policy of deporting migrants to Rwanda. She told how the Home Office is ‘already getting ready for the next flight and we will to continue to prepare and try and overturn any future legal challenges as well’.
Ms Coffey also said ministers were ‘surprised and disappointed’ by the ruling by the European Court of Human Rights and she has ‘never known such a quick decision made by somebody at the ECHR’.
But human rights lawyer Frances Swaine, who represents a man due to be flown to Rwanda, said the Government should wait until a judicial review is heard before attempting another deportation flight to the country.
‘The European Court of Human Rights has recommended that there are no other flights proposals put together until the substantial judicial review hearing into the whole policy is heard’, she told the BBC. ‘We’re expecting that that would take place in about six weeks time during July although we don’t have a firm date for it yet.
‘And I think if I was the Government, which obviously I’m not, but if I was, I would be sitting back and thinking was it worth it, either from a financial or a legal perspective, to organise one of these very expensive flights again when they’ve been so unsuccessful this time around on legal grounds.
‘Because there will be a decision in July as to whether or not this policy can be extant, or whether there would need to be some changes to the law if the Government was absolutely determined to see it through. But wait until we have the decision first and then decide whether to go ahead.’
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.
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 of 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.
Could the UK leave the European Convention on Human Rights to get the policy through?
The Government has already committed to a shake-up of human rights laws but the intervention of the European court will fuel demands for the UK to leave the convention entirely.
The Prime Minister did not rule out such a drastic measure when questioned about it yesterday, ahead of the Strasbourg court’s injunction. But leaving the ECHR – which emerged in the aftermath of the Second World War – would be a significant step which could have major knock-on effects on other international agreements.
Under the Good Friday Agreement, the ECHR underpins human rights guarantees in Northern Ireland. Remaining signed up to the ECHR also helps ensure judicial and legal co-operation with the EU under the terms of Brexit.
Work and Pensions Secretary Therese Coffey said she doesn’t know of any moves for the UK to leave the European Convention on Human Rights, saying: ‘Right now I am not aware of any decisions or even hints about that.’
Ms Coffey told how she instead expected the Government would contest the ruling, saying: ‘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.’
Does this mean the Rwanda migrants plan is illegal?
This is a major issue of contention. Campaigners for the individuals selected for the first flight have already argued in court that if the policy is eventually ruled unlawful, anyone sent to Rwanda would have to be brought back.
The United Nations refugee agency warned the Home Office twice that the move to send asylum seekers to Rwanda was unlawful, saying that this was because of the risk of refugees being refouled by the African country.
Refoulement is where refugees or asylum seekers are forcibly sent back to a country where they could face persecution, and is illegal under international law – something the UN has responsibility for overseeing.
Mayor of London Sadiq Khan has also described the policy as ‘potentially unlawful’, but the Home Office has defended it and Prime Minister Boris Johnson said the Government had anticipated ‘a lot of teething problems’.
Court of Appeal president Lord Reed said yesterday there had been an ‘assurance’ that, if the Government’s policy is found to be unlawful, steps would be taken to bring back any migrants flown there in the interim.
Will the government have to pass a new law?
Passing a new law enacting the Rwanda policy through the Commons and Lords could bypass the current legal challenges to the policy. But left-wing lawyers could still try to argue that the Human Rights Act supersedes the new law.
What will happen to the asylum seekers who were meant to be on the flight?
The migrants are likely to have been returned to a detention centre after being taken off the flight, and Home Secretary Priti Patel said that ‘many of those removed from this flight will be placed on the next’.
The ECHR ruling said the migrant known as KN should not be removed until three weeks after a full judicial review by the UK High Court has taken place into the legality of the policy
What would have happened to the migrants sent to Rwanda?
The first migrants to arrive in Rwanda were expected to have been flown into a private terminal at Kigali’s international airport before being taken straight to accommodation at Hope Hostel – where they will be given a chance to rest, eat and settle in, as well as being tested for Covid-19, before they are processed.
The Rwandan government said this is the only facility being used for initial accommodation under the plan so far. Hope Hostel can sleep 100 people, although plans for expansion could see another block built on the site.
A large tent has been erected next door and is understood to be where the processing will take place. Within 24 hours of arrival, migrants will get a three-month residency in Rwanda while their immigration status is decided.
The immigration department will submit a file for the consideration committee within 15 days, after which a decision is expected to be reached within a further 45 days, the Rwandan Ministry of Justice said. The new arrivals will not need to submit an asylum claim, but those who do will have this considered in the first instance.
Anyone without an asylum claim, or one that is rejected, will then be considered under wider immigration rules with a view to provide a right to residency and to work. The government said it had boosted staff numbers and resources to make the process as efficient as possible and hopes to consider claims within three months.
While their immigration status is determined, migrants will take part in an ‘orientation’ programme to help them adjust to their new life in Rwanda – if they choose to stay – with information about the country such as the weather and geography as well as a tour of the area. Food and accommodation will be provided and paid for.
Migrants will also be given a monthly allowance of 100,000RWF a month (roughly £90) to help pay for essentials. Meanwhile they will be given access to language classes and translation services as well as legal advice.
What does Rwanda say about last night’s cancelled flight?
Rwandan government spokesman Yolande Makolo said that the country is ‘not deterred by these developments’.
She added: ‘Rwanda remains fully committed to making this partnership work. The current situation of people making dangerous journeys cannot continue as it is causing untold suffering to so many. Rwanda stands ready to receive the migrants when they do arrive and offer them safety and opportunity in our country.’
The Rwandan government has already hit back at ‘insulting’ criticism of plans to send migrants there, saying opponents were ‘missing the bigger picture’ about efforts to improve the standard of living and offer better opportunities so their young people do not move to Europe as well as provide a safe haven for refugees.
Schoolchildren walk along a street among pedestrians in Kigali, Rwanda, today following the dramatic flight cancellation
Why does the UK government want to fly the migrants to Rwanda?
The Government says it welcomes refugees who come by approved immigration routes, but wants to put the criminal smuggling gangs who operate dangerous Channel crossings out of business.
Home Secretary Priti Patel has said that the ‘Migration Partnership’ with Rwanda aims to ‘see those arriving dangerously, illegally, or unnecessarily into the UK relocated to build their lives there’.
The Government has spoken about breaking the business model of people smugglers amid concerns over the demands on the current system and the cost to the taxpayer of regular crossings over the Channel.
At a Cabinet meeting yesterday, Prime Minister Boris Johnson said that what the ‘criminal gangs are doing and what … those who effectively are abetting the work of the criminal gangs are doing, is undermining people’s confidence in the safe and legal system, undermining people’s general acceptance of immigration’.
Speaking earlier this week, Mr Johnson told LBC radio: ‘I think it’s very important that the criminal gangs who are putting people’s lives at risk in the Channel is going to be broken – is being broken – by this Government.
‘They are selling people a false hope, they are luring them into something extremely risky and criminal.’
Ms Patel has said the ‘vast majority’ of those who arrive in the UK through means deemed ‘illegal’ – such as on unauthorised boats or stowed away in lorries – will be considered for relocation.
More than 28,000 migrants entered the UK across the Channel last year, up from 8,500 in 2020, and about 10,000 have arrived so far this year. Dozens have died, including 27 people in November when a single boat capsized.
Why do some people object?
Refugee Council chief executive Enver Solomon said the threat of removal will cause ‘human suffering, distress and chaos’ with ‘far reaching consequences for desperate people who are simply in need of safety’.
Mark Serwotka, general secretary of the Public and Commercial Services union, said the policy is ‘inhumane’, while Prince Charles is also understood to have privately condemned the scheme as ‘appalling’.
The Archbishop of Canterbury and other senior bishops suggested the Rwanda scheme breached Christian values, writing in a joint letter to the Times: ‘Whether or not the first deportation flight leaves Britain today for Rwanda, this policy should shame us as a nation.
‘The shame is our own, because our Christian heritage should inspire us to treat asylum seekers with compassion, fairness and justice, as we have for centuries.’
The letter went on to describe those facing removal as ‘the vulnerable that the Old Testament calls us to value’ and urged the creation of safe migration routes to combat ‘evil’ traffickers.
Migration and refugee groups point out that there are no approved legal routes for most people, with the exception of those fleeing Afghanistan and Ukraine.