The last-minute halting of the first flight to Rwanda is humiliating for Boris Johnson’s government. An urgent interim measure from the European Court of Human Rights prompted a domino effect of domestic court orders that ended with the plane returning to base without passengers.
The ECtHR’s order came down to three factors. First, that evidence from the UN High Commissioner for Refugees and others suggested asylum seekers transferred to Rwanda ‘will not have access to fair and efficient procedures for the determination of refugee status’. Second, that the High Court had found ‘serious triable issues’ in the government’s decision to treat Rwanda as a safe third country on the grounds that it was ‘irrational or based on insufficient enquiry’. Third, the lack of ‘any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge’ in the UK courts. Since Rwanda is not a state party to the convention, the ‘risk of treatment contrary to the applicant’s convention rights’ meant the Iraqi national who brought the case could not be removed until the domestic courts had ruled on the merits.
The interim measure and subsequent UK court orders are being celebrated by opponents of the government’s Rwanda plan. It is hardly a surprising outcome. I and others predicted it when the policy was announced. Whatever the merits or the morals of the plan, I am not sure the events of last night are a cause for celebration. Of course, they have kept these applicants in the UK a little longer and those responsible have delivered a setback to a policy measure they regard as cruel, callous and contrary to the UK’s international and humanitarian obligations. The politics of the first deportation flight, a Boeing 767 chartered at a cost of £500,000, departing with an empty passenger manifest is humiliating for the Home Secretary and the Prime Minister. They look weak, outmanoeuvred and not in control of the situation.
Yet it is these very considerations that should give progressives, liberals and others pause. For one, a deportation ordered by the Home Secretary and not blocked by UK judges has been interdicted by a court in Strasbourg, and not just any court: the big, bad, criminal-coddling, border-opening one with ‘European’ and ‘Human Rights’ in its name. Yes, the Council of Europe, of which the court is a creature, was first proposed by Churchill. Yes, the convention it upholds was drafted by a British Tory, David Maxwell Fyfe. The fact remains that the court has become contentious in Britain, so much so that merely invoking its name is the political and legal equivalent of saying ‘candyman’ five times into a mirror.
Many among the general public consider it a foreign institution imposing the preferences of foreign judges on the UK. It is telling that even the BBC, in its write-up of last night, felt the need to clarify that the ECtHR was ‘part of the Council of Europe, which still counts the UK as a member, rather than the European Union’. Ministers have got their bogeyman and even if a UK court eventually deems the Rwanda policy unlawful, Strasbourg and its convention will be shoved into the firing line along with the concept of domestic judicial review.
Ministers also couldn’t have asked for a better case study for their deportation regime. The applicant in K.N. v. the United Kingdom is an Iraqi national who, according to the court, ‘left Iraq in April 2022, travelled to Turkey and then across Europe before crossing the English Channel by boat’. Now, the Refugee Convention, to which the UK is a state party, doesn’t require refugees to claim asylum in the first safe country. It does, however, forbid signatories from penalising refugees for ‘illegal entry or presence’ where they have come ‘directly from a territory where their life or freedom was threatened’ (Article 31) or refouling them to a territory where they would be at risk on the basis of their ‘race, religion, nationality, membership of a particular social group or political opinion’ (Article 33).
Again, though, there is international law and then there is national public opinion. Britain heeds the former more scrupulously than its domestic critics would admit and gives the latter shorter shrift than many of the enlightened European countries those domestic critics long for it to emulate. No matter. The result is the same: ministers will be able to point to a failed asylum seeker who, though fearing for his life, crossed the entire continent of Europe without finding a safe country until he reached the UK. That a medical doctor at the Immigration Removal Centre filed a report ‘indicating that the applicant might have been a victim of torture’ is not immaterial – but neither will it shape public opinion in the way asylum progressives might hope. The perception that Britain is falling victim to asylum shopping is something progressives prefer to wave away but it is a central component of public hostility towards the current refugee regime.
We aren’t really talking about law here but about politics – Tory politics. Winning a fifth election in a row was already going to be a huge ask, even before Boris Johnson became damaged goods. Doing so after admitting defeat to the lawfare industry, particularly on the question of border integrity, would be an almost impossible gradient to scale. If the Rwanda policy is ultimately frustrated, it would be politically lethal for the Prime Minister, the Home Secretary and their party. While current talk of withdrawing from the ECHR seems rash, a defeat for the government in Strasbourg would likely shift Conservative backbenches, grassroots and voter opinion on the convention to the right.
Progressives should not welcome such a development as toxifying the Tory brand for the same reason they should not rub Conservative noses in last night’s embarrassment. The idea of ECHR withdrawal entering into the mainstream of British politics would put Labour on the wrong side of the very voters it needs to win back. It could represent another Brexit-style cleave in the political landscape. The public wants effective asylum policies and is not well disposed to judges – in Strasbourg or in London – overturning measures to secure the border. It’s not enough for progressives to oppose the Rwanda plan, they need to propose their own plan, one that is compassionate and humane but that a sceptical public can have confidence in.