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Priti Patel said on Wednesday that European judges had not imposed an “absolute bar” on migrants being deported by the Government to Rwanda as she vowed to press ahead with a second flight after the first one was grounded following legal rulings.
The Home Secretary told MPs that the European Court of Human Rights in Strasbourg had not ruled that the policy was illegal but it had “prohibited” the removal of three of the small number of people who were due to be deported.
She added: “Those prohibitations last for different time periods but are not an absolute bar on their transfer to Rwanda.”
Any of these individuals released by the courts would be “tagged” while action to deport them is “progressed.”
However, it was far from clear how long it would take the Government to organise a second flight or if it would risk wasting hundreds of thousands of pounds of taxpayer’s money by doing so before British judges rule on whether the policy is legal, a judgement expected before the end of July.
Elsewhere, Downing Street suggested the UK could pull out of the ECHR were it to prove on obstacle to Government policy.
Asked if the Government could withdraw from the ECHR, the Prime Minister’s official spokesman said: “We are keeping all options on the table including any further legal reforms that may be necessary.
“We will look at all of the legislation and processes in this round.”
Attorney General Suella Braverman echoed that position and said many people would be frustrated at the role played by a “foreign court”.
Pressed on whether withdrawing from the ECHR was a possibility, she told the BBC’s World At One programme: “We’re not ruling anything in and we’re not ruling anything out.”
Shadow home secretary Yvette Cooper told Ms Patel the Rwanda situation is “a shambles”, adding: “This is not and never has been a serious policy and she knew that when she chartered the plane.”
Ms Patel’s statement to the Commons came as Boris Johnson’s immigration policy was plunged into further confusion on Wednesday after a Cabinet minister was unable to say when a second attempt would be made to send a deportation flight to Rwanda.
Work and Pensions Secretary Thérèse Coffey hit out at European judges for intervening late on Tuesday night which led to the flight, with just a few migrants due to be on board, being halted before take-off.
She insisted the Home Office was preparing for a fresh attempt to send a flight to Rwanda. But when pressed on Sky News about whether it would take days or weeks, she said: “I’m not going to get into operational disclosures.”
Ms Coffey was also unable to say if the Government intended to deport hundreds or thousands of migrants to Rwanda in the first year of the scheme’s operation.
She suggested that the European Court of Human Rights (ECHR) had rushed through its ruling on one case, an Iraqi national, which had led to other legal action and steps to stop the deportation of the handful of other people due to be on the flight.
The court, which is separate from the EU, 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. A full trial of the legality of the deportation policy is due to be heard in the British courts by the end of July.
Human rights lawyer Frances Swaine, who represents one of the people due to be sent to Rwanda, urged the Government to wait for that decision before organising any more flights, estimated to cost £250,000 to £400,000.
“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,” she said.
Home Office sources said Ms Patel was already preparing for the next flight. The source said this included examining whether the European ruling amounted to a block on flying any migrants out ahead of the High Court hearing on the legality of the scheme or whether it might be possible to send some on a plane before it takes place.
“We remain confident that the policy is legal,” the source added, saying there was no need for ministers to pick a fight with the Strasbourg court at this stage.
Ms Coffey, though, criticised the decision, saying: “The British courts gave the go-ahead for this flight to happen despite the challenges that happened.
“Frankly, the Government is disappointed with the (European) decision, I have never known such a quick decision made by somebody of the ECHR on trying to intervene. I think the public will be surprised we have European judges overruling British judges.”
Tory MPs suggested the scope for the European court to enforce the European Convention on Human Rights in Britain should be reduced.
There have been multiple occasions this Parliament of legislation passed with great speed. What last night showed is we now need the same speed and urgency to bring in a UK Bill of Rights and remove all power of the European Court of Human Rights over our sovereign decisions.
— Greg Smith MP (@gregsmith_uk) June 15, 2022
Sir Iain Duncan Smith told LBC: “The truth is, this was always a voluntary affair, the ECHR. Many countries sign up to some but not all of the requirements in the ECHR. That’s allowed. ”
On Friday a High Court judge ruled that there should be a full review of the removals policy, but that Ms Patel would be acting lawfully if in the meantime she sent some asylum seekers to Rwanda.
But in its ruling, the ECHR acknowledged concerns about access to “fair and efficient procedures for the determination of refugee status” in Rwanda, the fact the African nation is not part of the European human rights framework, and the absence of “any legally enforceable mechanism” to return KN (the Iraqi) to the UK if there is a successful legal challenge to the policy.
Up to seven people had been expected on the 10.30pm flight from a military airport in Wiltshire. Labour accused the Government of “picking a fight” to blame someone else for the chaos and of “abandoning all British decency”.
Hundreds more migrants crossed the Channel in small boats on Tuesday
Ministers are paying £120 million to Rwanda to accept migrants whose cases for asylum will be processed there. The migrants would be allowed to stay in that country if successful.
The Government has faced criticism, from the Church of England and reportedly also from the Prince of Wales.