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When will Rwanda flights take off?
And will Braverman obtemper the Strasbourg court?
When will the flights take off? That was the question a Conservative MP asked Suella Braverman in the Commons yesterday.
“The home secretary seems to be implying that she will obtemper the order of the European Court of Human Rights issued under article 34 of the convention,” said Joanna Cherry KC, the Scottish National Party MP who chairs parliament’s joint committee on human rights.
This was the second Scottish legal term Cherry had introduced me to in a week. It sounded as if Cherry was accusing Braverman of being angry with the Strasbourg judge who had blocked the previous home secretary’s attempt to relocate asylum seekers to Rwanda in June. In fact, obtemper means to comply with, or obey.
And that was indeed the home secretary’s response to the 139-page ruling delivered by Lord Justice Lewis and Mr Justice Swift. Removals would go ahead “once the litigation process comes to an end”, said Braverman. She had “huge confidence in the judgment that has been handed down today”.
In summary, the High Court concluded that it was lawful for the government to make arrangements for relocating asylum seekers to Rwanda — and for their asylum claims to be determined in Rwanda rather than in the United Kingdom. However, the home secretary needed to decide whether there was anything about each person’s particular circumstances which meant that his or her asylum claim should be decided in the United Kingdom — or whether there were other reasons why that person should not be relocated to Rwanda. As the home secretary had not properly considered the circumstances of the eight individual claimants whose cases were before the court, those claims would be referred back to her for reconsideration.
The legal commentator David Allen Green has made some shrewd observations on this ruling in his new Substack blog:
What happens next?
As a matter of law, the only thing preventing the government sending asylum seekers to Rwanda is the order of the Strasbourg court mentioned by Cherry. That order continues “until three weeks after delivery of the final domestic decision in [the] ongoing judicial review proceedings”.
It’s worth noting that the government is making no attempt to challenge that order. No formal procedure exists for appealing against so-called interim measures but presumably the court would consider a challenge if it was brought.
The government is not appealing against the court’s ruling in the eight individual cases. It will simply reconsider their claims if it wants to remove the individuals concerned.
So it’s for the other side to appeal. And, entirely properly, the government will wait until the appeal process comes to an end before taking any further action. As Braverman told MPs:
We know that further legal challenges are possible, and we will continue to defend this policy vigorously in the courts. However, once the litigation process has come to an end, we will move swiftly in order to be in a position to operationalise the policy and deliver on our promise.
How long all this takes will depend on whether appeals are heard by one court or two: it’s possible the case may be considered by both the Supreme Court and the Court of Appeal or by just one court. We’ll have a better idea of the legal process after the next hearing on 16 January but a final ruling is not expected before the spring or early summer.
Appeals could be brought by the individual claimants against the decision that the Rwanda scheme is lawful. Appeals could also be brought by the three organisations who were told yesterday that they had no legal standing to bring claims: the charities Detention Action and Care4Calais and the trade union PCSU, which represents Home Office officials.
Let’s assume that yesterday’s generic judgment is upheld by the appeal courts and the Home Office manages to process a plane-load of individual claims lawfully. What next?
No doubt, some migrants would again lodge applications at the European Court of Human Rights. Would the Strasbourg court delay matters for another year or so by issuing new interim measures? Or would it respect the decisions of judges in the United Kingdom, allowing the flights to take off provided the government agrees to let asylum seekers return to the UK if the Strasbourg judges subsequently rule in their favour?
The latter seems more likely. But how many migrants will risk their lives crossing the Channel in the meantime?
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