The deeply controversial plan to outsource asylum protection to Rwanda suffered a defeat as legal interventions emptied the first deportation flight prior to departure. Despite the failure of deterrence policies and the defeat, the UK government vows to continue pursuing its agenda.

The human rights organisation Detention Action announced just before midnight on 14 June: “With only minutes till the flight to Rwanda was due to take off, a series of legal decisions – from the High Court, the Court of Appeal & the European Court of Human Rights (ECHR) – have seen all people seeking asylum taken off the flight”. The latest blow to the controversial UK-Rwanda plan – that was introduced in the context of the heavily criticised Nationality and Borders Bill and is set out in a recently signed MoU with Rwanda – follows  intense legal battles on multiple levels.

On Friday, a High Court judge refused an injunction which would have grounded the flight, with the Court of Appeal later endorsing the judgment,  At the same time, individual challenges led to person after person being removed from the flight, with only seven deportees on board when the flight was eventually cancelled.  A Home Office source had earlier predicted to media that the number of deportees could drop to zero before departure, stating that lawyers: “are going to use every trick in the book to try to thwart the last people who are still on the flight”. Prime Minister Boris Johnson accused lawyers of abetting criminal gangs, provoking outrage from the Law Society and Bar Council, the professional bodies for the legal sector. In addition, a judicial review concerning the lawfulness of the agreement itself is pending, with a decision expected in July.

Legal arguments from the UN Refugee Agency (UNHCR) that has firmly and explicitly opposed the deal became a decisive factor before the European Court of Human Rights (ECtHR). In its ruling on the case of the Iraqi national K.N. v. the United Kingdom, granting an urgent interim measure, the ECtHR stated: “The Court had regard to the concerns identified in the material before it, in particular by the United Nations High Commissioner for Refugees (UNHCR), that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”. In light of the resulting risk of treatment contrary to the applicant’s Convention rights, the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues”. The Iraqi man in question was the last of seven remaining people still set for deportation and the ECtHR ruling allowed lawyers for the other six to make successful last-minute applications.

NGOs have urged the government to reconsider its policies in light of developments: “The cancellation of last night’s flight should have been the moment the Government abandoned this cruel policy – but shamefully the opposite seems to be the case” Amnesty UK stated in a press release.  “Whilst we are relieved to hear the flight to Rwanda did not take off as planned tonight it is clear that the Government remain determined to press on with this deal, leaving us to continue to witness the human suffering, distress, and chaos the threat of removal will cause with far-reaching consequences for desperate people who are simply in need of safety,” Enver Solomon, CEO of ECRE member the Refugee Council warned. The scene is now set for a continued legal battle and public protests, with civil society, including human rights lawyers and organisations, church representatives, trade Unions, opposition politicians and activists mobilized with challenges before the High Court set for July. A public opinion survey showed that 45% of the public oppose the policy, compared to 35% who support it.

Through a period when the target of tens of thousands of deportations to Rwanda gradually dropped to hundreds, tens, then less than ten and ultimately ending in a cancelled flight, the arrivals across the channel that deportations were meant to deter have continued. However,  Home Secretary Priti Patel spearheading the UK’s harsh deterrence policies remains defiant:  “We will not be put off by the inevitable legal last minute challenges nor we will allow mobs…to block removals,” the Home Secretary stated, continuing: “We believe that we are fully compliant with our domestic and international obligations, and preparations for our future flights and the next flights have already begun,” she added. Cabinet minister Therese Coffey said the government was “surprised and disappointed” by the ruling, adding: “I think the public will be surprised at European judges overruling British judges”. Coffey has suggested the UK government would: “go back, I am sure, to the ECHR to challenge this initial ruling”. While  Prime Minister Boris Johnson revived threats  to leave the European Convention On Human Rights other government members have  backtracked.

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This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.