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Will UK leave ECHR?
Rishi Sunak reportedly open to withdrawing from human rights treaty
Rishi Sunak is prepared to take Britain out of the European convention on human rights after being warned that 65,000 illegal migrants are expected to come to the country this year, the Sunday Times reports this morning. How likely is that?
The prime minister has clearly been influenced by the decision of a single, unnamed judge at the human rights court last June to block the removal of asylum seekers to Rwanda while challenges were going through the courts of the United Kingdom.
Those challenges were dismissed by two senior judges in the High Court at the end of last year. They concluded that it was lawful for the government to make arrangements for relocating asylum seekers to Rwanda and for their claims to be determined in Rwanda rather than in the United Kingdom.
However, government officials should have decided whether there was anything about each person’s particular circumstances that meant 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 were referred back to her for reconsideration.
The asylum seekers have been given permission to appeal and the Sunday Times suggests that a hearing will take place in April. “It could then be referred to the Supreme Court, but ministers are hopeful that appeal judges will rule that there are no legal grounds for that.”
The “interim measures” indicated by the Strasbourg court last summer — in effect, an inunction or an interdict — will come to an end “three weeks after delivery of the final domestic decision in [the] ongoing judicial review proceedings”.
If the claimants lose again, ministers apparently expect the asylum seekers to bring a substantive complaint to the human rights court. Presumably, they would not be removed while it was being considered. But, says the Sunday Times, the government believes “Strasbourg will be wary of overturning a ruling by Britain’s highest court”.
That all seems plausible. The Strasbourg judges have huge respect for the way the human rights convention is applied by judges in the United Kingdom. It’s possible that asylum seekers could be sent to Rwanda early next year — so long as the Home Office can find staff capable of considering their individual circumstances.
But this is where the story gets confusing.
will outline plans to deport them within “days or weeks” rather than “months or years” to their country of origin or to Rwanda, with which Britain has signed a deal.
A No 10 source said: “For the first time, if you come here illegally, you can expect to be detained and removed from the UK. It’s as simple as that. You won’t be able to claim asylum in the UK — which 90 per cent of small-boats arrivals did last year — and you won’t be able to abuse our world-leading modern slavery protections either.
“Instead, your claim will be swiftly processed and you will be removed to a safe country, whether that’s the country you came from if it is safe, like Albania, or a safe country we have an agreement with, like Rwanda.”
It appears that this is the legislation that could provoke the UK into leaving the human rights convention:
A Downing Street source said: “We know how critical it is to have a bill that not only gets through parliament but that can be upheld in the courts. As we have seen with Rwanda, anything we do in this space will be challenged — and so it needs to be legally watertight.”
The Supreme Court, now presided over by Lord Reed, is believed to be more likely to take the government’s side than it was under Baroness Hale, who was president when the court ruled Boris Johnson’s prorogation of parliament unlawful in 2019.
But the real test will be whether the European Court of Human Rights seeks a confrontation. The government’s position is effectively an ultimatum to the Strasbourg court not to put Britain in a position where it has little choice but to leave the convention. Ministers believe it is possible that the Strasbourg court could refuse to hear such a case, though that may be wishful thinking.
Let’s look at the timing. The government will want new legislation in force by the summer, when the weather is more favourable for the traffickers who send people across the channel in small boats. Once the legislation is in force, legal challenges will be brought on behalf of individual claimants. If last year’s pattern is repeated, the courts of England and Wales will refuse to grant interim injunctions.
What will Strasbourg do this time? Hard to say, but there is every chance that the human rights court will not grant interim measures this summer as readily as it did last year.
But what if it did? Would an temporary order — holding the ring until the issue has been decided by courts at all levels — really justify the UK joining Russia and Belarus as the only European countries outside the human rights convention? Surely the government would want to argue its case through the courts before taking a step that would inevitably lead to the UK leaving the Council of Europe?
As the Sunday Times reports, withdrawal from the convention could not take place before the general election expected next year. “The Tories would then put withdrawal from the [convention] at the heart of their manifesto, drawing a sharp dividing line between the Conservatives and Labour.”
So that’s another known unknown.
Still, the prime minister does have one priceless asset: the secretary of state in charge of the proposed legislation would be Suella Braverman. As The Times reported yesterday, without a trace of irony,
A government source pointed out that Braverman was a barrister and former immigration lawyer and therefore “knows [the subject] inside out”.
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