Experts cast doubt on Braverman’s hopes of ECHR rule change on Rwanda
Legal experts have cast doubt on the UK’s claims of “possible reforms” to European court of human rights procedures that stopped an asylum seeker from being deported to Rwanda last year.
During a two-day visit to the country’s capital, Kigali, Suella Braverman told a selected group of government-friendly papers that she was “encouraged” by the government’s “constructive” talks with Strasbourg to overhaul court injunctions. An ECHR injunction last June prevented an Iraqi national from being deported from the UK to the east African country.
But legal scholars have questioned whether the Strasbourg court would weaken a mechanism intended to protect people facing an “imminent risk of irreparable harm”, with one warning that an apparent plan to ignore ECHR injunctions would be a “significant and dark turning point in [the UK’s] history”.
At stake is the ECHR’s rule 39, which allows a judge to impose an injunction pending further legal proceedings to decide on the merits of a case.
These so-called interim measures are typically used to suspend an expulsion or extradition, often by asylum seekers who fear persecution if they are returned to their home country. Between 2020 and 2022, the ECHR granted 12 of 161 applications for interim measures against the UK government.
Alice Donald, an associate professor of human rights law at Middlesex University, said she found it “extremely hard to believe that the court would be willing to countenance any variation for the UK to be let off from complying with these urgent measures, or indeed would be willing to weaken the mechanism as a whole in order to placate the UK”.
She added: “I have to think that is government spin to suggest that.”
Asked for comment, the ECHR issued a statement saying it was “constantly seeking to improve and fine-tune its working methods”. It said it “amends the rules of court and issues updated practice directions for the benefit of all parties if and when the need arises”.
“Since last November, reflections are ongoing in relation to the procedures for dealing with interim measures,” it added. “This internal review is unrelated to any individual case or the position on interim measures of any one of the 46 member states.”
The justice secretary, Dominic Raab, and the attorney general, Victoria Prentis, were said to have been informed of the review during meetings at the court earlier this year.
The Strasbourg court emerged from the Council of Europe, the human rights organisation founded in 1949, which is separate from the EU and has 46 members from Iceland to Turkey.
Toufique Hossain, the director of public law at Duncan Lewis Solicitors, said the ECHR’s intervention was prompted by concerns that asylum seekers transferred to Rwanda would not have access to fair and efficient procedures for the determination of refugee status.
“These issues will be substantively considered by English courts,” he said. “If the government has any respect for the rule of law, they will adhere to the rule 39 process.”
Braverman, the home secretary, has already faced criticism for the attempts to control media coverage of her Rwanda trip that included a photo op at an accommodation block set to host asylum seekers. The Guardian, the Daily Mirror, the Independent and the i newspaper were barred from the trip that mostly included right-leaning newspapers.
She was reported by the Telegraph as saying: “The government has been clear that the opaque Strasbourg process which led to the last-minute grounding of our Rwanda flight with a rule 39 last year was flawed.
“But I’ve been encouraged by the government’s constructive recent discussions with Strasbourg, including around possible reforms to rule 39 procedure.”
The government’s illegal immigration bill includes a placeholder clause that is expected to be replaced by drafting that would permit the home secretary to ignore ECHR rule 39 injunctions. A similar clause already exists in the government’s bill of rights, overseen by Raab, although this could be axed by No 10.
Hossain said the apparent proposal to override rule 39 would “mark a significant and dark turning point in this country’s history, that diminishes its standing at home and abroad”.
Donald said any attempt to ignore the government’s obligations to act on rule 39 orders “would be a clear breach of the UK’s obligations under the ECHR”. She added: “It would be instructing UK judges to ignore interim measures regarding the UK and there is no way that this could be compatible with the UK’s obligations.
“Passing a law defying an obligation in this way does not override the obligation or make it go away. It would also of course embolden other states to flout their obligations, so there is great concern about the possibly ‘contagious’ effect of this bill.”
The ECHR has previously ruled that failure to comply with a rule 39 order amounts to a breach of article 34 of the European convention on human rights, which enshrines the right for anyone to apply to the court.
The British government helped to write the European convention on human rights after the second world war and was one of the first countries to ratify it in 1951, before its entry into force in 1953.
While often used in deportation cases, the convention has other uses. In February the ECHR issued a rule 39 order calling on Russia to release the opposition leader, Alexei Navalny, citing the risk to his life in prison, where he is being held on charges widely held to be politically motivated. The Russian government ignored the order.