Conspiracy or cock-up?
It’s hard to tell whether the UK’s self-generated clashes with both European courts this week should be categorised as conspiracy or cock-up. I’ll leave for another piece the prospect of infringement proceedings at the EU’s court of justice over the Northern Ireland protocol bill. This piece is about proceedings yesterday at the entirely separate European Court of Human Rights.
As you would expect, the courts have not had time to deal with detailed challenges brought by the asylum-seekers facing removal to Rwanda last night. The merits of their challenges are to be considered at a hearing in the High Court next month. The only issue has been whether they should stay in the UK in the meantime.
Last Friday, Mr Justice Swift refused to grant an interim order blocking removal. That decision was upheld by the Court of Appeal on Monday. One unnamed Iraqi applicant asked the Supreme Court yesterday for permission to appeal. That application was considered without an oral hearing by Lord Reed of Allermuir, Lord Hodge and Lord Kitchin. Permission to appeal was refused after an assurance was given on behalf of the home secretary Priti Patel.
It’s worth reading Reed’s judgment. I have emphasised a particularly striking sentence in the first paragraph:
The appellant is one of a number of claimants who applied to the High Court on 8th June for permission to bring an application for judicial review of the Home Secretary’s decision that certain persons, including themselves, who have made claims for asylum in the United Kingdom should be removed to Rwanda so that their claims for asylum can be determined by the Rwandan authorities. In bringing that application, the appellant’s lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the Government.
On 10th June, Swift J granted the claimants permission to apply for judicial review. That application is expected to be heard in July. It is at that hearing that the question will be decided whether the Home Secretary’s policy is lawful or not. I should make it clear that neither the courts below, nor this court, are deciding that question at present.
Having decided that the question whether the Home Secretary’s policy is lawful should be decided at a later date, the question then arose as to what was to happen in the meantime. The judge had to decide whether the balance of convenience favoured allowing the claimants to be removed to Rwanda in pursuance of the Home Secretary’s policy, or favoured the appellants’ being allowed to remain in this country until the lawfulness of the Home Secretary’s policy had been decided, in which case he would have to grant an interim injunction to prevent their removal. He decided that question in favour of the Home Secretary, essentially on the basis that the importance of her being able to implement her policy in the meantime outweighed the significance of the problems which the claimants might suffer if removed to Rwanda. In forming that view, the judge considered a volume of evidence, including evidence relating to the memorandum of understanding and notes verbales entered into between the UK Government and the Government of Rwanda.
The claimants then appealed to the Court of Appeal. It refused their appeal on June 13th. As it explained, its role in relation to applications for interim injunctions is very limited. Put shortly, it was not entitled to interfere with the judge’s decision to refuse to grant an interim injunction unless he had erred in law or had conducted his evaluation in a manner which was unreasonable. The court held that those tests were not met, and therefore refused the appeal.
There is now only one of the original claimants, the appellant, who is still facing removal. The appellant has applied to this court for permission to appeal against the decision of the Court of Appeal. He wishes to appeal on the following ground: that the Court of Appeal erred in law in holding that the judge was entitled, when conducting his assessment of the balance of convenience, to proceed on the assumption that the Government of Rwanda would comply with the assurances provided in the memorandum of understanding.
This court is not persuaded that the Court of Appeal arguably committed such an error. It did not hold that the judge was entitled to assume that the Government of Rwanda would comply with the memorandum of understanding, and the judge did not make such an assumption. He did attach weight to the assurances given in that document, and was entitled to do so in the light of the evidence before him. The degree of weight which he gave to that evidence was a matter for his assessment, as the Court of Appeal correctly held.
One related matter which was of concern to this court was whether, if the appellant were to succeed at the hearing proposed for July in his challenge to the lawfulness of his removal to Rwanda, he would then be returned to this country, where it would follow that his asylum claim ought properly to be dealt with. In that regard, The Government Legal Department have informed the court, on behalf of the Home Secretary, as follows:
“If the High Court were to make an order that the [Home Secretary] should use her best endeavours to ensure the Appellant’s return to the UK from Rwanda following a trial, and there were no stay of any such judgment, then the [Home Secretary] would seek to comply with that order. There are arrangements for return of relocated individuals in Article 11 of the MOU which provides that: ‘Following a request made by the United Kingdom, Rwanda will take all reasonable steps in accordance with international human rights standards to make a Relocated Individual available for return to the United Kingdom should the United Kingdom be legally obliged to facilitate that person’s return.’”
In the light of that assurance, and for the reasons I have explained, the court refuses permission to appeal.
The next step was an urgent application to the European Court of Human Rights in Strasbourg. While that was going on, the prime minister gave a pooled interview. He was asked whether it was time for the UK to withdraw from the court’s jurisdiction by leaving the Council of Europe. His answer was rambling and inconclusive, as this clip shows.
I do not read that as a commitment to reverse government policy and withdraw from the human rights convention.
The Strasbourg court granted what it calls interim measures last night. This is the closest it can get to an injunction against a member state. Again, it’s worth reading a lengthy extract from the court’s press notice and judgment:
On 13 April 2022 the UK Government entered into a Memorandum of Understanding with the Government of the Republic of Rwanda for an asylum partnership arrangement. Under that arrangement, asylum seekers whose claims were not being considered by the UK could be relocated to Rwanda.
The applicant, KN, an Iraqi national, was born in 1968. He left Iraq in April 2022, travelled to Turkey and then across Europe before crossing the English Channel by boat. Alleging that he was in danger in Iraq, he claimed asylum upon arrival in the UK on 17 May 2022.
On 24 May 2022 the applicant was served with a “Notice of Intent” indicating that the authorities were considering deeming his asylum claim in the UK inadmissible and relocating him to Rwanda. On 27 May 2022 a medical doctor in the Immigration Removal Centre issued a report indicating that the applicant might have been a victim of torture.
On 6 June 2022 KN was notified that his asylum claim had been deemed inadmissible. He was served with removal directions to Rwanda for 14 June 2022.
The High Court refused to grant the applicant’s request for interim relief, either by preventing the relocation of all asylum seekers to Rwanda under the asylum partnership agreement or by preventing the applicant’s removal there. It assumed that Rwanda would comply with the Memorandum of Understanding, even though it was not legally binding, but in any event it considered that the interim period was likely to be short (it plans to hear the applicant’s judicial review challenge in July) and it found that if the applicant’s judicial review challenge was successful, he could be returned to the UK. It did, however, accept that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues” which would have to be considered by the court when it addressed the merits of the applicant’s challenge. An appeal was heard on 13 June 2022 and was dismissed. The Supreme Court refused permission to appeal on 14 June 2022.
In examining the request for an interim measure on 14 June 2022, the European Court decided:
“In the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of the United Kingdom, under Rule 39, that the applicant should not be removed until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial review proceedings.
The parties are therefore required to notify the Court immediately of the delivery of that final domestic decision.
The Court had regard to the concerns identified in the material before it, in particular by the United Nations High Commissioner for Refugees (UNHCR), that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”. In light of the resulting risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues.”
That ruling applied only to KN. But, in circumstances that are not yet clear, lawyers for other asylum-seekers who were to be deported last night persuaded the courts that it should apply to them too.
What happens next?
Comment
The government may not have predicted which court was going to block the flight to Rwanda last night. But it knew very well that lawyers would do their best to protect their clients while the legal issues were resolved by the courts.
Everyone remembers the case of M v Home Office in 1991. An asylum-seeker was deported to Zaire, contrary to a court order, and the home secretary Kenneth Baker was found to have been in contempt of court. By the time officials realised their error and tried to bring him back, M had disappeared.
It would have been simple enough for the government to have postponed last night’s flight once it knew that there was to be a hearing next month. But perhaps a conflict with the lawyers — and the courts — was just what ministers wanted.