Sunak urged to leave the ECHR as migrant crossings rise

Pressure is stepping up again on the government to act more swiftly over migrant crossings after new figures today showed that more than 100,000 migrants have made the journey across the Channel over the last five years.

Further adding to the tension was the news that today – Thursday –  has been the busiest day of the year so far for crossings, with an estimated 600 arriving on Britain’s shores. 

These latest figures will add fuel to the lobbying by a third of the Cabinet who are planning to urge Rishi Sunak to leave the European Convention on Human Rights ahead of the upcoming Supreme Court ruling on whether the Rwanda plan is legal or not. 

Suella Braverman is the most senior Tory to say she would support leaving the human rights convention if it continues to block the Rwanda deportation flights while immigration minister Robert Jenrick said the government will do “whatever is necessary” to defend the country’s borders. But now it has been reported that they are backed by several more members of the Cabinet who want to make pulling out of the ECHR a main feature of the Conservative party’s election campaign next year. 

The deportation of asylum seekers to Rwanda as a “safe third country” was blocked last summer by the European Court of Human Rights in Strasbourg by a last-minute injunction, or, a rule 39 order.

This was a temporary measure which demanded that a domestic court look properly at the cases of the claimants to determine whether their deportation was legal. 

The UK’s High Court had determined that Rwanda was a safe third country where those deported were unlikely to face any human rights violations.

This decision was overturned on 29 June when the Court of Appeal ruled against the plan, deeming Rwanda’s asylum system insufficiently safe for the deported refugees. Essentially, the Court of Appeal agreed with Strasbourg. The Lord Chief Justice said: “Unless and until the deficiencies in its asylum processes are corrected, removal of asylum-seekers to Rwanda will be unlawful.” 

The government then filed an appeal and the hearing will most likely be in October. 

Sir John Redwood, former cabinet minister, told The Telegraph that, after the parliamentary recess, the government ought to pass legislation to nullify the ECHR without having to leave the convention and the 46-nation Council of Europe. The Council, which enforces the European Convention on Human Rights, is nothing to do with the EU. It was set up in the wake of the Second World War to uphold human rights, democracy and the rule of law in Europe. So, Brexit has no implications for the binding nature of the convention. 

Redwood said: “…the legal fix now is to get parliament back and put through a very short, simple piece of legislation which instructs all British courts to say it is parliament [that] will take these necessary actions to stop the boats, notwithstanding anything that the European court might have in mind.”

According to Redwood, this step would mean that the European court ruling would disapply without having to get out of the whole thing and cause a giant row. You’d get an instant result.

“I don’t know why the Cabinet doesn’t see this and why it doesn’t get on and do it.”

It seems that many others don’t see this simple fix either. Joshua Rozenberg KC, writing in The Spectator, was adamant that the government “simply cannot legislate its way out of these (Council of Europe) obligations.” In his Substack, A Lawyer Writes, Rozenberg also made clear that the Illegal Migration Bill 2023, which Braverman introduced in order to circumvent the court in Strasbourg and the 1953 Geneva Convention, doesn’t actually let the government do any such thing. 

When the Bill was passed, Braverman touted “rights brakes” as a means of circumventing international conventions. But Rozenberg said: “As far as I can see, that section [55 of the Bill] has not yet been brought into force.”

Even if that part of the Bill was in force, the convention would still be binding and a standoff with the Council of Europe would take place.

If the government’s appeal is ruled successful by the Supreme Court in October, the Rwanda plan is likely to be delayed by immigration lawyers fighting on behalf of refugees, much in the same way it has already been delayed for over a year. 

If the government loses, it’s back to the drawing board for the Tories ahead of election year. It remains to be seen how popular leaving the Council of Europe and its human rights convention will be on the campaign trail. 

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