Why Is A European Court Overseeing The UK's Asylum Plans?

And no, it's got nothing to do with the EU.
The government's first flight sending asylum seekers to Rwanda was grounded on Tuesday night by the ECHR
The government's first flight sending asylum seekers to Rwanda was grounded on Tuesday night by the ECHR

The first flight carrying asylum seekers from the UK to Rwanda was aborted at the 11th-hour on Tuesday, following intervention from a European court.

This seems surprising considering several UK courts were willing to let the flight go ahead.

So why was the European Court of Human Rights (ECHR) able to make the final decision for a policy – however controversial – which was not stopped in Britain?

What is the ECHR?

The ECHR applies and protects the European Convention on Human Rights.

This convention looks after the rights of everyone in the Council of Europe. There are 47 member states, including the UK, who have all promised to protect basic human rights to anyone within their borders, including their own citizens and other nationalities.

The UK made these rights part of its domestic law through the Human Rights Act 1998.

The convention itself was initially proposed by former prime minister Winston Churchill and put together with the help of British lawyers, in the wake of World War 2.

It has nothing to do with the European Union, a trading bloc which is now made up of 27 members (so half the size of the Council of Europe) and which the UK is no longer part of.

What is the Rwanda policy again?

In April, Downing Street announced that, to tackle the influx of asylum seekers to British shores and supposedly to deter human traffickers, those who reached the UK through illegal means would soon be flown to East Africa.

The Home Office has created a scheme with Rwanda where these deported refugees would be given accommodation and support while their asylum application is considered by the Rwandan government.

If successful, they can stay for five years, receiving education and support from Rwanda.

If their bids fail, they can apply for other immigration routes but may still be deported.

Either way, they would not be able to fly the 4,000 miles back to the UK.

The policy immediately sparked debate, with campaigners launching legal challenges linked to modern slavery and human rights claims.

High profile figures including the Archbishop of Canterbury (and reportedly the Prince of Wales) have also waded into the debate, and called the government out for its “immoral” policy.

Interestingly, prime minister Boris Johnson did make it clear from the offset that Downing Street was expecting significant pushback – but maintained that the government would see off legal challenges.

So, how did this court intervene with the Rwanda flight?

Last week, up to 130 people had been told they were going to be flown to Rwanda, but series of successful appeals to UK courts whittled this number down to single figures come Monday.

Seven people were then expected to be sent to Rwanda on Tuesday, until judges in Strasbourg (where the ECHR is based) were able to grant last-minute injunctions and remove some passengers from the flight.

Other last-minute appeals in UK courts were then successful, meaning the flight was grounded just half an hour before its scheduled departure.

The surprise intervention was praised by campaigners, with the chief executive of the Refugee Council Enver Solomon explaining: “The fact that the final flight could not take off is indicative of the inhumanity of the plan and the government’s complete refusal to see the face behind the case.”

How could the ECHR’s actions have repercussions for UK politics?

Some hardline Conservatives are already pushing for the government to alter the Human Rights Act so that the UK is no longer involved with the ECHR.

One senior member of the party reportedly told POLITICO’s Playbook on Tuesday: “We cannot allow foreign judges to decide UK border policy. It’s very simple.”

Some Tories have even called for the UK to just ignore the ECHR’s decision.

Johnson did say back in 2016 that he backed the convention and the court because “it’s very important for us”.

“I’m a supporter. It was one of the great things we gave to Europe under Winston Churchill.”

Yet, on Tuesday the prime minister seemed to hint that he was considering changing his position.

“The legal world is very good at picking up ways of trying to stop the government from upholding what we think is a sensible law,” he said.

“Will it be necessary to change some rules to help us as we go along? It very well may be. All these option are under constant review.”

However, not everyone in government appears to agree with the prime minister just yet.

Pensions secretary Therese Coffey rejected calls to leave the ECHR this week, telling Radio 4′s Today programme: “I don’t think that’s even a question that, I’m aware, is on the table at all.”

Pensions minister Guy Opperman also told Times Radio he would not be pushing to withdraw from the ECHR and that he did not think it was government policy.

He said: “I don’t believe it is our policy, nor would it be something I will be advocating for withdrawing from the ECHR.

“I think the situation is that, as I understand it, the UK courts have primacy on this matter, but as I understand the decision last night from the ECHR, a decision was made that not everything had been considered by the UK courts in those circumstances.”

What happens next?

Home secretary Priti Patel, who has been championing the divisive policy since it was announced, said that she was “disappointed” by the ECHR’s decision when it broke on Tuesday, but indicated the fight for the policy was not over.

Cabinet minister Coffey also told Sky News on Wednesday that the government was planning to “overturn any future legal challenges”.

While the government has declared that the next flight to Rwanda is already being prepared – with many of those who were due to fly on Tuesday expected to be on the next flight available – a time frame has not been unveiled just yet.

Rwandan government spokeswoman Yolande Makolo also remained confident despite the setback, saying: “We are not deterred by these developments. Rwanda remains fully committed to making this partnership work.”


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