European judges may stop migrants being flown to Rwanda ‘for years’

Legal experts tell ministers Strasbourg court will ‘take its time, as it routinely does’ and could outlaw policy

MINISTERS have been told that flights to deport asylum seekers to Rwanda could be delayed “for years” by the European Court of Human Rights.

Senior lawyers and government insiders fear that the court could use temporary injunctions – the tactics that it deployed to ground Tuesday’s flight – to delay the operation of the Government’s Rwanda policy aimed at deterring migrants from crossing the English Channel.

Yesterday a dozen migrants reached Devon for the first time, as at least 150 crossed the Channel, following 444 who made it to England in small boats on Tuesday, pushing the total towards 11,000 this year, more than double the rate at the same point in 2021.

In a dramatic last-minute intervention, the European court halted Tuesday’s flight with four of the seven asylum seekers already having boarded after it backed a legal challenge by one of them, a 54-year-old Iraqi who came to Britain by small boat less than a month ago. The court ruled that the man, referred to as KN, should not be deported until at least three weeks after a judicial review next month decides whether the Government’s Rwanda policy is lawful. It upheld his plea for an injunction because of the risk of illtreatment it claimed he could suffer in Rwanda, because of the absence of a legally enforced mechanism for him to be returned to the UK and because Rwanda is outside the European Convention on Human Rights (ECHR).

The closed-doors decision by an out of hours duty judge had a domino effect on the legal challenges trying to block the flight. Two more had their cases back by the European court before the remaining four – said to be victims of trafficking – were removed from the 767 jet due to fly them to Rwanda.

A government source said the threeweek delay could be critical in allowing time for an appeal to be lodged with the European court if ministers won the judicial review.

“The Strasbourg court would be motivated to protect its process by a similar injunction preventing the flights until the case was resolved, which could take a year or more,” said the source.

The warning has been laid out by some of Britain’s leading constitutional lawyers including Richard Ekins, Oxford university’s professor of law and constitutional government, and exmandarin Sir Stephen Laws, former Parliamentary counsel who prepared Government legislation.

“If the Supreme Court in the end upholds the lawfulness of removal to Rwanda, it is of course entirely conceivable – indeed probable – that the [European court] will make further interim measures restricting removals to Rwanda until the [court] has itself had time to hold a hearing and to make its own decision,” they wrote in a paper for think tank Policy Exchange. “What this means is that, if the UK complies and if the [European court] – as it routinely does – takes its time then the Government’s Rwanda policy may not go ahead for years. That would effectively end it.”

It comes as The Daily Telegraph can also reveal that Boris Johnson finds the arguments for leaving the European Convention on Human Rights (ECHR) “persuasive” and is seriously considering the move despite some Cabinet opposition. The Prime Minister is understood to have told Downing Street figures at a meeting yesterday that people who voted for Brexit would be angered by the blocked Rwanda flight ruling.

A senior government source said of Mr Johnson’s thinking: “He understands people who voted for Brexit would be baffled why a European court is overriding the UK courts.”

The UK remains bound by the ECHR despite leaving the European Union as

they are separate entities, a distinction Downing Street figures think may be lost on some voters.

The Prime Minister’s openness behind closed doors to consider leaving the ECHR goes further than the UK Government’s public position, which is supportive of the convention.

Cabinet ministers are split on the issue. Dominic Raab, the Justice Secretary, has promised that the UK will remain in the ECHR, even as he brings forward a new Bill of Rights. But Suella Braverman, the Attorney General, briefed Downing Street figures yesterday that the UK courts would continue to uphold human rights to the same degree if the country was out of the ECHR. Nadine Dorries, the Culture Secretary, and Jacob Rees-mogg, the Brexit opportunities minister, have both previously publicly criticised the ECHR.

The UK has remained a signatory of the ECHR, which is policed by the European Court of Human Rights, despite leaving the EU. Its judgements are binding on the 46 Council of Europe member states – including the UK – that have ratified the convention.

The interim injunction by the European judge cannot be appealed even though Ms Patel yesterday told MPS it was heard in private in an “opaque” process that did not even allow British Government lawyers the right to make submissions. Even the duty judge’s name remains secret. Nor can it be ignored as that would breach international law even though senior legal experts in the UK believe it may be “ultra vires” because article 35 of the ECHR bars the European court from intervening in ongoing domestic UK legal action which in this case is the judicial review.

Professor Ekins, head of Policy Exchange’s judicial power project, said: “It is extremely anomalous and the Government should be yelling from the rooftops that the court doesn’t have jurisdiction. It is possible the European court backs down.”

Ms Patel is, however, determined to press ahead with plans to send asylum seekers to Rwanda within weeks even before the judicial review rules on the legality of the policy.

“We believe that we are fully compliant with our domestic and international obligations, and preparations for our future flights and the next flights have already begun,” she told MPS.

This is based on Home Office lawyers’ assessment that European court’s injunction is not a “blanket” ruling but allows for removals of migrants to Rwanda to be treated on a case by case basis. How far this holds true has yet to be tested.

Ministers are also considering an “opt out” from European human rights laws for migrants who enter the UK illegally and try to fight deportation by claiming it breaches their right to a family life.

Article 8 rights to a family or private life in the ECHR is the main route used by asylum seekers fighting removal from the UK – and was deployed by many of the 130 migrants who successfully challenged their deportation to Rwanda on Tuesday’s flight.

Under plans being considered for a new British Bill of Rights to be published within weeks, illegal migrants could see their ability to use the right to a family life to prevent deportation severely limited.

However, the bill would still leave the European Court of Human Rights with powers to decide on breaches of the convention, which is why Boris Johnson is now considering whether to quit the ECHR altogether.

However, leaving the ECHR – which emerged in the aftermath of the Second World War – would be a significant step which could have major knock-on effects on other international agreements.

Under the Good Friday Agreement, the ECHR underpins human rights guarantees in Northern Ireland. Remaining signed up to the ECHR also helps ensure judicial and legal co-operation with the EU under the terms of the Brexit deal.

Who governs Britain? It certainly isn’t Boris Johnson. You may support his Rwandan refugee policy, or you may loathe it. But the central promise of his administration was that such important decisions would be taken in the UK, with the ballot box the ultimate arbiter. The European Court of Human Rights’s decision to effectively block the Government from sending refugees to Rwanda thus symbolises the moral and practical implosion of his project. He was elected to take back control, to give a voice to the culturally conservative majority, to wrestle power from acronym-wielding experts, and yet is proving laughably ineffective at influencing, let alone directing, affairs of state.

Even the Supreme Court agreed that there was no reason why the plane couldn’t take off – but then the judges in Strasbourg swept in, reminding Britain that it isn’t in charge. The Government knew this might happen, but took no measures to prepare, and I doubt it will really do anything meaningful about it now. That is why so many Tory voters have lost patience with Johnson: he is all talk, and no delivery.

The Blob is naturally making the most of a weak government that doesn’t seem keen to exercise power. Take education: ministers don’t believe in “decolonising” universities, so why is it happening? The Tories don’t think that girls should be banned from wearing skirts, so why are some schools imposing such absurd rules? How come the Education Secretary wasn’t even aware that his own Bill contained provisions that would revoke the independence of free schools?

Or take welfare: during Covid, the sanctions imposed on recipients who turn down jobs or miss meetings were suspended. The Government says that it wants to fully reintroduce conditionality, but so far this has not fully happened, which is one reason why the total number of people on out-of-work benefits is above 5 million at a time of extreme labour shortages. As to taxation, Treasury mandarins believe that it should go up, and that tax cuts today would be inflationary, and the Government simply acquiesces. Or inflation: the Bank of England isn’t being held accountable. Devolution, an ultimate Blairite project, doesn’t work as currently constituted, but keeps being extended by clueless Tories.

Tony Blair was devastated by the referendum, but he is having the last laugh. We’ve ended up with a technical Brexit in which Britain is subservient to a permanent Left-wing, politico-managerial class. Many Tory MPS might as well be Labour MPS, and vice versa. Nothing has changed: Whitehall Blairites seized the power relinquished by Brussels’s social-democrats.

More money is being spent on the NHS and the public sector than even Blair could have dreamt of; taxes have shot up far more quickly than under Labour. All of Gordon Brown’s extensions of the welfare state remain largely intact, and now social care is being nationalised, creating yet more dependence on state largesse.

Command and control environmentalism pervades all policy, and price controls are back. The labour market is more regulated than ever.

The Government’s debilitating inability to say anything intelligent on human rights sums up the predicament of Tory Britain. One of the big Left-wing untruths of the moment is that membership of the European Convention on Human Rights is necessary to enjoy human rights, and that without it we would turn into a totalitarian hell-hole. It is absurd – none of the non-european liberal democracies are members, and yet all protect human rights – but still the Left is winning.

The ECHR was originally proposed by Churchill to enshrine rights and protect democracy across a Europe that had only just emerged from the horrors of fascism, genocide and the Second World War. It made sense, in the context of the time, for the likes of Germany, Italy and France to sign up, but Britain should have pursued its own path, just as America, Canada or Australia chose to rely on their own domestic rules and courts. Churchill didn’t realise how a well-intentioned document would be weaponised by a new generation of anti-democratic Left-wing activists.

England had led the world on individual rights with the Magna Carta in 1215, Habeas Corpus in 1679 and the Bill of Rights in 1689, and the common law, the judiciary and the jury system were hugely effective at protecting the individual against the power of the executive. Relative to almost everybody else, we were a human rights success story. It is true that a number of gaps soon became apparent – for example, British free speech was insufficiently protected – but we could have resolved all of these domestically through legislation. There was also (and remains) a case for another, broader modernised Bill of Rights, but that too should be a national endeavour.

By the 1980s, the Left had become obsessed with the idea of granting the ECHR judges more power over an ever-broader conception of human rights. They wanted to build an international, technocratic class divorced from national accountability and from the common law tradition, and loved the activist nature of the Strasbourg court. By enshrining the ECHR into British law via the Human Rights Act of 1998, Blair helped cement his cultural putsch.

Real rights violations by rogue states weren’t blocked – absurdly, Russia ratified the ECHR in 1998 and will only be properly kicked out in September – but the court dedicated itself to creating new rights out of thin air, deciding that prisoners should be allowed to vote. It extended its reach into overseas military occupied areas and war zones, and decreed that “whole life” sentences violate human rights unless they are “reducible”.

The problem is that extricating ourselves from this madness would take great political skill and energy. The ECHR and the Council of Europe are separate from the EU, but the latter insisted on membership of the ECHR as part of the Withdrawal Agreement, and Blair baked ECHR membership into the Good Friday Agreement and the legislation that created Scottish devolution. Dominic Raab’s strategy is to largely return to the pre-1998 settlement and dilute the Human Rights Act, rather than to tear the whole of it up. I doubt these reforms will be enough, but the tragedy of what should have been a great reforming government is that Johnson has run out of time to take back control.

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Johnson was elected to take back control, and yet is proving laughably ineffective at influencing affairs of state