Only quitting the Convention will restore national control over migration
Even if Government reverses the Supreme Court Rwanda case, Strasbourg could still delay deportations of illegal immigrants
Rishi Sunak’s plan to rush through new laws, enabling illegal asylum seekers to be deported to Rwanda for processing of their claims, is doomed to fail, according to a major new expert study.
It concludes that as long as the UK is a signatory to the European Convention on Human Rights, it will face appeals to the European Court of Human Rights in Strasbourg and further long delays in processing claims.
The Prime Minister will have to turn to the option of withdrawal from the ECHR if he is to fulfil his pledge to do “whatever it takes” to stop the flood of asylum seekers making the hazardous voyage across the Channel.
To speed up resolution of the migrant crisis, Britain should announce at once its intention to quit the ECHR. It will then be able to resist pressure to apply the Strasbourg court’s case law on migration during the lead up to when the country formally leaves the Convention.
“The Rwanda removal scheme is still left vulnerable to ECHR-based legal challenges in the UK courts. There will be challenges based on individual circumstances even if emergency legislation reverses the effect of the Supreme Court decision, unless that emergency legislation is drafted to exclude those individual challenges as well,” the report warns.
The paper has been drawn up for the Centre for Brexit Policy by Martin Howe KC, a distinguished barrister and expert on European law.
Remaining as member of the ECHR has additional risks for the UK’s attempts to take back control of its borders because of the Strasbourg Court’s powers to issue last-minute rulings blocking flights – and because of the reluctance of ministers to confront it.
Mr Howe adds: “Even if the UK courts ultimately allow removals to Rwanda to go ahead, migrants’ lawyers can then make direct petitions to the Strasbourg Court and ask that Court for an “interim indication” against the deportation going ahead until the full hearing of their case, likely to be years later…
“Last year the Government bowed to such an interim indication and halted a flight to Rwanda at the last minute. Since then no flights have taken place.
“The government now has the clear power under UK law to ignore Strasbourg Court interim indications in future, but there is still a question mark over whether it has the robustness do so and face the ensuing row.”
Mr Howe rejects the argument that pulling out of the ECHR will not be enough to restore national control over borders and that Britain will also have to pull out of the Geneva Convention on Refugees or other international treaties.
He points out that the Geneva Refugees Convention is much less extensive than the Strasbourg Court’s case law under the ECHR and would not preclude the processing of asylum claims in Rwanda.
Mr Howe accuses the Strasbourg Court of subverting the laudable aim of protecting fundamental human rights when the Convention was drawn up after the Second World War.
“The Strasbourg Court has transformed it into something completely different, by acting effectively as a law-making body rather than sticking to its allotted task of interpreting the text which was agreed by the founding states.”
He points out that the founding states deliberately did not include asylum rights in the text of the Convention, because they were to be covered in another treaty. That has not stopped the Strasbourg Court from creating asylum rights which are not in the text by claiming to interpret the Convention.
“Leaving the EU was supposed to give us back control of our borders. But we won’t truly get back control until we leave the ECHR as well.
“We should ask ourselves what purpose is served by having a foreign court which supervises our rights and liberties?”
Although the small boats issue is now the most pressing and immediate, leaving the ECHR would also allow other serious problems caused by the Strasbourg Court’s over-extensive case law to be dealt with, including its very damaging interference with overseas military operations and its undue restrictions on freedom of the press.
“Canada, Australia and New Zealand seem perfectly happy that they can protect the rights of their citizens without needing to subject themselves to some external regional court,” he writes.
“When the foreign court to which we have flaccidly subjected ourselves is as deeply flawed at the Strasbourg Court, the question should not be ‘why should we leave’ but ‘why on earth are we still a member?”
Click here to read the report.