Explained: UK has left EU, so how did Europe’s human rights court stop Boris Johnson’s Rwanda deportation plan?

“The legal world is very good at picking up ways of trying to stop the government from upholding what we think is a sensible law,” Johnson said. “Now, will it be necessary to change some laws to help us as we go along? It may very well be. And all these options are under constant review.”

The European Union and Council of Europe

If the UK has already left the European Union (EU), why is it still obliged to follow the guidelines of the European Convention on Human Rights (ECHR)?

Despite Britain’s exit in January 2020, it still continues to be a member of the Council of Europe. Established in the wake of World War II in 1949, the Council of Europe (CoE) is an entirely separate entity from the EU. The Council (46 members) is Europe’s chief human rights organization, while the EU (27 members) is an economic and political alliance.

The UK joined the EU in 1973, 24 years after becoming a member of the Council.

The ECHR was introduced by the Council in 1953. In a 1994 resolution passed by the Council, it stated that all member states are required to “respect their obligations” under the ECHR, and that all new members have to ratify the convention within a year of joining.

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European Convention on Human Rights

After the death and destruction of World War II, leaders in Europe sought to stop a similar catastrophe from taking place again. They believed the solution lay in strengthening democracy, human rights, and the rule of law.

The ECHR came into effect in 1953 to safeguard fundamental human rights in Europe and to ensure that governments could not “dehumanise and abuse people’s rights with impunity”, according to Amnesty International.

Drawing from the UN’s Universal Declaration of Human Rights, the Articles in the ECHR include the right to life, right to liberty and security, right to a fair trial, and freedom from torture.

In 1959, the European Court of Human Rights was established in Strasbourg, France, to enforce the rights guaranteed by the ECHR. People who believe that these rights have been contravened can approach the court, the judgments of which are binding on all member states of the Council of Europe.

The UK and the ECHR

As the first country to sign the convention in March 1951, the UK has a long-standing relationship with the ECHR. After the end of World War II, the Congress of Europe was held in The Hague, which was attended by over 750 delegates from across the continent. During his speech to the Congress, Winston Churchill said, “In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.”

Britain also committed to incorporate the ECHR to Northern Ireland after signing the Good Friday Agreement in April 1998, which marked the end of the violent conflict since the 1960s.

In fact, the UK played an important role in the creation of the Council of Europe and the subsequent ECHR. The convention was enshrined in British law with the Human Rights Act of 1998. The Act, which came into force in October 2000, incorporates rights of the ECHR into domestic British law and allows the rights guaranteed by the ECHR to be enforced in domestic courts.

In more recent years, however, the Human Rights Act has been seen as a constraining liability. Former Prime Minister David Cameron had pledged to replace the legislation and replace it with a new British bill of rights.

The Conservative Party’s 2019 manifesto pledged to “update” the Human Rights Act to ensure a “proper balance between the rights of individuals, our vital national security and effective government”.

Critics argue that the removal of the Human Rights Bill would mean that people who want to raise human right cases under the ECHR will no longer be allowed to seek redressal in the UK, but will have to travel to the court in Strasbourg to be heard.

In a document presented to Parliament in December 2021, the UK Ministry of Justice suggested that updates should be introduced to the Human Rights Act “to strengthen the role of the UK Supreme Court”. It also suggested that in light of the “ongoing challenges in deporting foreign national offenders”, provisions in the new Bill of Rights could be included which would limit such claims by human rights grounds.

The Rwanda deportations

In April this year, the UK government announced that for a 5-year trial period, it would send some asylum seekers who have illegally crossed the English Channel to Rwanda for refuge instead. This scheme, which would require Britain to pay Rwanda an initial £120 million, would, according to the government, discourage others from crossing the Channel.

After a series of appeals by lawyers, the last of which was dismissed by the Supreme Court, a plane carrying seven people was set to take off for Rwanda. However, just before the flight could take off, the European Court of Human Rights in Strasbourg granted urgent interim relief to an Iraqi asylum seeker on the plane, claiming he faced “a real risk of irreversible harm”, The Guardian reported.

The court ruled that he “should not be removed until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial review proceedings”.

Home Secretary Priti Patel said she was disappointed but would not be “deterred from doing the right thing.” She added: “Our legal team are reviewing every decision made on this flight and preparation for the next flight begins now,” the Associated Press reported.

Johnson’s decision to deport asylum seekers to Rwanda was criticised by his political opponents, human rights organisations, and charities for being inhumane. In a letter published in the Times, the archbishops of Canterbury and York, along with other senior members of the Church of England condemned the policy, calling it “immoral”, and saying it “shames Britain”.

Prime Minister Johnson had earlier said that he would not be “deterred or abashed” by critics of the policy.