Why the government’s plan to send asylum seekers to Rwanda is hanging by a thread

The president of the European Court of Human Rights (ECHR) has said that countries must comply with its judges’ interim rulings. Siofra O’Leary’s comments come as the UK government tries to push its Rwanda legislation through parliament.

The UK is a signatory to the European Convention on Human Rights, which the ECHR exists to interpret.

The government’s Rwanda (Asylum and Immigration) Bill is designed to restrict the ability of the ECHR to stop deportations by issuing interim rulings under Section 39 of the Convention, which applies in circumstances wherein someone is considered to be at immediate risk of harm.

The fact that the UK is a signatory to the Convention is the very reason why our own Supreme Court – not a foreign or an international court – declared the Rwanda plan unlawful last year.

The Section 39 interim rulings can be overturned in a fuller judgment. They are applied quite rarely, but in 2022 a Section 39 interim measure was effective in blocking the departure of a scheduled deportation flight from the UK to Kigali.

The Rwanda bill is intended to allow ministers to decide whether or not to comply with Section 39 rulings. “I would not have put that clause in the bill if I was not prepared to use it,” said Rishi Sunak.

O’Leary’s comments should certainly not be a surprise to Sunak, who travelled to Iceland last year to attend a Council of Europe summit.

He pleaded in vain with O’Leary for reform of the Convention – in particular, the emergency interim Section 39 notices, which are sometimes dubbed “pyjama injunctions”. These can, for example, get a refugee off a plane going to Rwanda pending a full hearing – as indeed happened in 2022, causing a furore.

It will obviously strengthen the resolve of the bill’s opponents to disrupt its progress.

The House of Lords, which is currently considering the most recent version of the treaty between Britain and Rwanda, has already signalled its dissatisfaction with legislation and with the plan as a whole, citing the Supreme Court’s reasoning. That is, that Rwanda isn’t a safe place, and that refugees we send there might be returned to their home countries where they are likely to be tortured or killed.

O’Leary’s comments are likely to add to their determination to delay the bill, and, given the proximity of the next election, that would effectively kill it off, assuming that there will be a change of government. Even if Sunak was able to get it through the House of Commons again, he wouldn’t have enough time before the election to force it through.

Well, yes, though it is often forgotten.

If the Rwandan government doesn’t want this troublesome – though lucrative – scheme to continue, then it can end it, whatever our own parliament has to say. And the latest words from the ECHR president could persuade the Rwandan authorities to delay the implementation of the plan, or even to abandon it.

Some months ago, Vincent Biruta, Rwanda’s minister of foreign affairs, said: “It has always been important to both Rwanda and the UK that our rule-of-law partnership meets the highest standards of international law, and it places obligations on both the UK and Rwanda to act lawfully.

“Without lawful behaviour by the UK, Rwanda would not be able to continue with the migration and economic development partnership.”

To be fair to Sunak’s critics on the right – who’ve been involved in successive attempts to toughen up the bill and make all Section 39 rulings null and void – the only real way to ensure the legality of the Rwanda plan is for the UK to withdraw from the European Convention on Human Rights entirely, and abolish the Human Rights Act 1998. After three months’ notice that the UK intended to leave, the entire legal problem would go away.

However, new legal and political problems would soon arise. The Tory party’s centrist faction would try to stop that withdrawal, and there’d be another split.

The Convention is also an integral part of the Good Friday Agreement, so the Northern Ireland peace process would come under yet more pressure. In addition, withdrawal would worsen Britain’s relations with the EU, especially given that the Convention is referred to in the Brexit agreement.

Besides all that, the UK would find itself without the formal recognition and protection of human rights that can be deployed through an independent court system.

Not much now, aside from leaving the Convention – but we need not have ended up here. Though it would have been a bit messy, and not easily defensible, the government could simply have ignored and disobeyed inconvenient rulings from Strasbourg, pending further legal and political activity.

The most celebrated instance of such an approach came about in 2005, when the European court ruled that the traditional law that imposed a blanket ban on British prisoners exercising the right to vote was contrary to the Convention.

Politically, this was an impossible instruction to comply with. The ruling was therefore just ignored by successive ministers in successive parties, one of whom, Kenneth Clarke, declared it a “particular political” matter, which had no legal substance but sounded good.

Eventually, via negotiations with the Council of Europe – not part of the EU but a human rights organisation that is made up of politicians from all of its member states – a compromise was reached that left Britain’s policy on prisoners’ votes virtually unaltered.

Arguably, the same could have been done in respect of the Rwanda plan, but following the intervention of the UK Supreme Court, that opportunity for creative ambiguity has passed.

To sum up: the chances of planes taking off for Rwanda – not to mention “stopping the boats” – look vanishingly small.