The president of the European Court of Human Rights (ECHR) has indicated the UK would be in breach of its legal obligations if it does not comply with emergency orders from the court to block attempts to send asylum seekers to Rwanda.
Síofra O’Leary, president of the ECHR, on Thursday said that states had a “clear legal obligation” to obey so-called “rule 39″ measures, which are issued by the court in cases where it feels a need to intervene to prevent real and “irreparable damage” to an individual.
UK prime minister Rishi Sunak has previously said that he will not let foreign courts intervene in the country’s controversial effort to send asylum seekers to Rwanda.
Asked last week whether he would be willing to ignore such rulings, Mr Sunak said: “I’ve been crystal clear repeatedly that I won’t let a foreign court stop us from getting flights off and getting this deterrent up and running.”
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Mr Sunak has made “stopping the boats” of asylum seekers arriving from across the English Channel one of his key pledges to the British public in advance of a general election expected this year.
The plan to send migrants to Rwanda to have their asylum cases processed there – the linchpin of Mr Sunak’s strategy to deter migrants – was dealt a setback last year when the supreme court ruled the plan was unlawful.
The government responded by signing a new treaty with Kigali in an effort to respond to some of the supreme court judges’ concerns, and by laying new legislation before parliament that would disapply parts of the UK human rights law.
The Bill, which passed through the House of Commons earlier this month and has begun facing harsh scrutiny in the House of Lords, clearly stipulates that it is at ministers’ discretion whether they comply with rule 39 injunctions from Strasbourg.
The ECHR issued rule 39 measures against the first flight taking asylum seekers to Rwanda in 2022. It also said that it received 63 requests to apply interim blocking measures against the UK last year, but only one application was granted, which concerned a deportation to the US.
If the UK refused to obey the court’s interim orders – so-called “pyjama injunctions” because they are often issued in the evening – it would be in contravention of the right of individuals to claim violations of their human rights as well as its obligation to obey the jurisdiction of the court, Ms O’Leary said.
She said that the UK had obeyed all previous instances in which it had been issued with rule 39 measures dating back to the 1950s, except for one exceptional case, and that Westminster urged Russia to comply with rule 39 measures over its treatment of Alexei Nalvany in 2021.
Rule 39 measures “also benefit UK citizens”, Ms O’Leary said.
The home office drafted guidance to civil servants last week stating that they are obliged to obey ministers’ decisions about whether to comply with injunctions from Strasbourg.
Some home office officials are uneasy about the situation and want clarity from a legal authority, such as the attorney general, about whether their individual involvement in ignoring a rule 39 order would amount to breaking the law.
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Some legal commentators have insisted that international law in this context only governs states, rather than individuals. – Copyright the Financial Times Limited 2024