European judges fight back over UK plans to ignore injunctions

Home Secretary set to be given ‘discretion’ to ignore Rule 39 orders, which were used to ground first migrant flight to Rwanda

The Government is amending the Illegal Migration Bill to give Suella Braverman the discretion to ignore interim injunctions
The Government is amending the Illegal Migration Bill to give Suella Braverman the discretion to ignore interim injunctions Credit: Stefan Rousseau/PA Wire

European judges are preparing to fight back over UK plans to ignore their injunctions on deportation flights, which they say could breach human rights.

Senior Strasbourg sources warned that plans to give Suella Braverman, the Home Secretary, discretion to ignore injunctions known as Rule 39 orders would “undermine” individuals’ rights and freedoms under the European Convention on Human Rights.

They cited precedents where countries including Belgium and Turkey and Moldova had flouted Rule 39 injunctions and were found to be in breach of the convention.

The orders – described by Tory MPs as “pyjama injunctions”– were used late at night by a single judge at the European Court of Human Rights in June to ground the first flight to Rwanda.

The Government is amending the Illegal Migration Bill to give the Home Secretary the discretion to ignore interim injunctions to stop a deportation flight.

Lord Thomas of Cwmgiedd, a former Lord Chief Justice, issued a warning to the Government on Thursday, suggesting the Bill risks defeat in the Lords.

Speaking to BBC Radio 4’s Today programme, he said Rule 39 orders would be “a very serious step for the Government to be contemplating putting into force”.

 

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UK courts will also be prevented from granting injunctions to stop migrants being deported on human rights or other grounds. They will only be allowed to remain if they face a “real risk of serious and irreversible harm” in the country to which they are being removed. Any other claims will only be considered once they are deported.

Ministers argue they are not breaching the convention because Rule 39 injunctions are only “internal rules” of the court. Mr Sunak has described them as “opaque, unfair and unjust”.

However, a European court source said: “Under the Convention system, interim measures [Rule 39] play a vital role in avoiding irreversible situations that would prevent national courts and/or the court from properly examining convention complaints and, where appropriate, securing to the applicant the practical and effective benefit of the convention rights asserted.

“A failure by a respondent state to comply with interim measures undermines the effectiveness of the right of individual application guaranteed by Article 34 and the State’s formal undertaking in Article one to protect the rights and freedoms set forth in the convention.”

The new amendments follow a backbench rebellion by some Tory MPs, who had demanded that the Government toughen the Bill.

Mrs Braverman had proposed to negotiate reforms of the injunctions with Strasbourg to ensure they were not used arbitrarily and without the UK Government having a say. She reserved the right to take powers to ignore them but Tory MPs believed that did not go far enough and tabled amendments to enact them immediately.

The MPs have now agreed to withdraw them in return for the concessions offered in talks with Robert Jenrick, the immigration minister, Home Office officials and political advisers from Number 10.

Meanwhile, the Foreign Secretary has warned Conservative Right-wingers against pushing for Britain to quit the European Convention on Human Rights.

In comments exposing the divisions in the party over the convention, James Cleverly told The Guardian he was “not convinced” that it was in the best interest of Britain to be outside it with countries such as Russia and Belarus.

Mr Cleverly suggested changes should be made with the agreement of European partners rather than unilaterally, saying: “In terms of our international agreements, these things get amended and changed all the time. I think some people underestimate how much influence we have on the world stage,” he said.

It came as Theresa May and Iain Duncan Smith called on Rishi Sunak to exempt human trafficking victims from his small boats legislation. The two former Conservative leaders have tabled an amendment to the Bill, which demands that people who have been “unlawfully exploited” and are in the UK should be exempt from the legislation.

It risks causing a major headache for the Prime Minister, who faces the prospect of a powerful rebellion led by two of the most senior backbenchers in his party.

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