Asylum seekers’ appeal to the European Court of Human Rights: clearing the fog of disinformation

“Opaque….scandalous….politically motivated” are the UK Home Secretary’s choice observations on the recent judgements of the European Court of Human Rights (ECHR). The ‘Rwanda removals’ incident has certainly lit up media interest, leading to predictable, partisan opinion but little explanation. The appeal to the European Court of Human Rights by those due to be flown to Rwanda sought an ‘interim measure’, not a lasting judgement. The government’s case for its planned action is well-documented elsewhere so this summary sets out to clarify what happened in Strasbourg, no more.

In agreeing to grant the interim measure, the ECHR noted that the asylum partnership arrangement between the governments of the UK and Rwanda provided for asylum seekers to have their claims considered after relocation to Rwanda but also that a UK Court would be ruling on the issue in July.

The ECHR ruled that the removal of the initial applicant should not take place until three weeks after the final decision of the UK court. However, on the same day as its ruling, five others also due to be flown to Rwanda, lodged applications with the Court, requesting similar interim measures to halt their own removal. In two of these, the Court decided to stay the applicants’ removal until 20 June so their requests could be considered in greater detail. Two others had their appeals rejected and the final request was withdrawn as the UK Home Office had by then ‘capitulated’.

The Court is empowered by the Convention to rule in such cases without prejudging the subsequent decision on the case by a UK court. Such requests to the ECHR are rare but apply when the applicants would otherwise face a real risk of irreversible harm. That irreversible harm was clear in this case because, if the UK Courts decide in July that the Home Office’s case falls, to whom should those already deported apply for return to the UK? The Home Office’s failure to respond satisfactorily led the ECHR to reach the only possible decision, whatever partisan media uproar this provoked.

A brief guide to the European Court of Human Rights

The Court was a creation of the Council of Europe, following the adoption of the European Convention on Human Rights in 1953. Only a few years before, the machinery of the United Nations had failed to agree a Convention, that is a binding instrument that signatory states cannot cherry pick. Instead, the UN’s Members States had to settle for the non-binding Universal Declaration of Human Rights (UDHR), although this is widely agreed as the most important international statement after the UN Charter itself. Rene Cassin of France and other European human rights activists who had worked on the UDHR knew that a Convention for Europe was both within their grasp and sorely needed as its member states were emerging from such a wounding war. The Court was set up in Strasbourg in 1959.

Today, the Council or Europe numbers forty-six member states. Only two member states have left it.  Greece pulled out in 1969, to avoid expulsion, after a military coup but re-joined five years later. Earlier this year, Russia pulled out following its invasion of Ukraine, which would have seen it expelled anyway. Few can imagine the UK following these.

The workload of the ECHR is enormous. In 2021, there were 72,000 pending applications including those targeting Russia (25%), Turkey (23%) and Ukraine (15%), collectively totalling two thirds of all applications. Only a tiny proportion of these reach legal process but each can create a storm in the accused Member State. In 2021, the Court dealt with 215 applications from the UK, 205 of which were declared inadmissible. Only one violated the European Convention on Human Rights but this failed to generate indignant outrage.

David Wardrop, Chair Westminster UNA

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