News focus: Strasbourg in the crosshairs | New
After rejecting legal challenges in the High Court, Court of Appeal and Supreme Court, the government was confident that a chartered flight carrying the first group of asylum seekers to Rwanda would take off on Tuesday evening.
Thus, he took the government by surprise when, shortly before take-off, the European Court of Human Rights announced that it had granted an emergency provisional measure to an asylum seeker threatened with imminent deportation. The flight did not take off.
Whether or not the Interior Ministry’s deportation policy from Rwanda is legal will be determined at a judicial review hearing next month. However, the intervention of the Strasbourg court has reignited another debate – over the UK’s accession to the European Convention on Human Rights.
Even supporters of the convention, including former Lord Chancellor Robert Buckland QC MP, found the Strasbourg court’s intervention baffling. It followed a Supreme Court ruling that the Court of Appeal had not erred in law in holding that the High Court was entitled, when weighing the balance of convenience, to leave the assumption that the Rwandan government would abide by the assurances provided in the two countries’ MoUs. The Government Legal Service assured the Supreme Court that if the appellant succeeded 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, telling the UK government that the claimant should not be deported until three weeks after the final domestic decision in its judicial review proceedings?
As we reject the alien and inappropriate Strasbourg system, we should design our own bill of rights
Andrew Tettenborn
In its decision, which the Gazette received at 7:39 p.m. on Tuesday, the European Court of Human Rights said: “The court took into account the concerns identified in the documents before it, in particular by the Office of the High Commissioner for United Nations Refugee Agency that asylum seekers transferred from the UK to Rwanda will not have access to fair and efficient refugee status determination procedures as well as the finding of the High Court that the issue whether the decision to treat Rwanda as a safe third country was irrational or based on the investigation gave rise to “serious issues that could be brought to trial”.
“Given the risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the legal area of the convention (and is therefore not bound by the European Convention on Human Rights ) and the absence of any legally binding mechanism for the return of the applicant to the United Kingdom in the event of a successful challenge on the merits before the national courts, the Court decided to grant this interim measure to prevent the removal of the applicant until the national courts have had the opportunity to consider these issues first.
Under Article 39 of the Rules of Court, the ECtHR may indicate interim measures to any State party to the European Convention on Human Rights. These requests are granted on an exceptional basis, where the requesters would otherwise face a real risk of irreversible harm.
Home Secretary Priti Patel told MPs she was surprised and disappointed by the intervention of the Strasbourg court. Asked about her departure from the convention, she simply said: “It is right that I am going back to the European Court of Human Rights and we will continue to work with the Court of Appeal, the Supreme Court and High Court because it is important that we understand their decisions and work with them in every way we can to implement our policy.
But, writing for the Daily Mail, Swansea University law professor Andrew Tettenborn said the UK ‘should sack’ the European Court of Human Rights. “As we reject the alien and inappropriate Strasbourg system, we should devise our own bill of rights, reinterpreting the articles of the convention in a sober and limited way appropriate to this nation of this century. British judges should decide British cases,” he said.
However, Robert Buckland, writing for the Daily Telegraph, advised caution. Although he found the Strasbourg decision “difficult to understand”, leaving the convention on this basis “would be like using a political hammer to crack a legal nut”.
Buckland suggested reform, not revolution: “Our government carried out reforms to the Strasbourg processes in 2012 with the Brighton Declaration…The Court should continue the process it started in Brighton and increase the scope of the ‘margin of appreciation” which it grants to the Member States. . If he should not be afraid of finding violations due to procedural flaws, he should not enter into the meanders of internal decisions.
Home Office policy was on hold. The same applies to the accession of the United Kingdom to the convention.