Professor Rory O'Connell unpicks some of the Home Secretary's misunderstandings and misrepresentations of the ruling that prevented the removal of asylum seekers to Rwanda
As widely reported, the planned removal of asylum seekers to Rwanda last week was halted after the European Court of Human Rights (ECtHR) ordered interim measures. This has provoked the Home Secretary to criticise the European Court of Human Rights’ actions.
According to the Home Secretary, the interim measures are based on "rule 39. They’ve not used this ruling previously, which does make you question the motivation and the lack of transparency.”
What is Rule 39?
Rule 39 is in the Rules of Court of the European Court of Human Rights. This allows a Chamber of the Court, the President of one of its sections or a duty judge to indicate to the parties any interim measures that should be adopted in the interests of the parties or of the proper conduct of the proceedings.
Interim measures under Rule 39 are used where there is an ‘imminent risk of irreparable harm’ and typically where there is a threat to someone’s life, or a threat that someone will be subject to torture, inhuman or degrading treatment.
The use of interim orders is most common in cases involving expulsion or extradition.
Is Rule 39 unusual?
No. Rule 39 deals with the situation where there is a case before a court that will need time to be resolved but there is a risk that one of the parties may suffer irreparable harm before the legal issues can be resolved. To protect the existing state of affairs courts can issue orders pending the resolution of the case. This can happen before domestic courts or international courts.
It is therefore unsurprising that the European Court of Human Rights has such a provision in its Rules of Court; and it is reasonably long-standing, dating to the 1974 Rules of Procedure of the European Commission of Human Rights.
Has Rule 39 been used before?
Yes. According to European Court of Human Rights statistics, the European Court of Human Rights considered 5,518 applications for interim measures during the three years 2019-2021. Of these, the European Court of Human Rights decided 3,118 applications were outside of scope; refused 1,775 applications and granted 625 applications.
The grant of 625 applications is a significant number though it should be put in the context of the overall workload of the European Court of Human Rights, which receives tens of thousands of applications each year.
Has Rule 39 been used in a UK case before?
Yes. As Adam Wagner has pointed out, interim measures were ordered in the very high-profile Abu Qatada case. Of the 5,518 requests for interim measures during 2019-2021, 180 involved the UK. The European Court of Human Rights approved interim measures in 7 of those cases – 2 in 2020 and 5 in 2021.
The Home Secretary has criticised the European Court of Human Rights for acting in an opaque way, not disclosing who the judges are, and just issuing a press release not a judgment. Is this true?
It is partially true but needs to be put in context. There is no judgment at this stage and the press release does not provide the names of any judges.
However, this is how the European Court of Human Rights deals with these types of applications given the need for speed and the scale of the European Court of Human Rights’ workload. The approach is no different from other requests for interim measures whether involving the UK or other states.
According to the Home Secretary the decision was politically motivated. Is there any evidence for this?
No. The Home Secretary does not offer any actual evidence or reasoning for this serious accusation.
The European Court of Human Rights has included brief reasons for why it has requested interim measures in its press release. The European Court of Human Rights noted that the UK courts believed there was a serious question about whether Rwanda was a safe country and this would have to be decided at the merits stage of the case. Given there was no legally enforceable way to insist Rwanda return anyone to the UK if a UK court subsequently ordered, the European Court of Human Rights requested the interim measures. While brief, this reasoning does not disclose any political motivation.
Was this decision due to Brexit?
It is difficult to see how Brexit has any relevance. The European Court of Human Rights monitors the application of the European Convention on Human Rights (ECHR). This is part of the Council of Europe system. The Council of Europe is separate from the European Union (EU). Following the expulsion of Russia, the Council of Europe has 46 member states. The 27 EU states are members but so are nearly a score of other European states.
Will a British Bill of Rights make a difference?
The Telegraph also reports on the proposed new British Bill of Rights, suggesting this will curb the ability of ‘migrants who enter the UK illegally’ (ie presumably asylum seekers) to fight deportation. This comment in the Telegraph article highlights that the purpose of the proposed British Bill of Rights seems to be to reduce human rights protection rather than expand it. Any such move would not affect the legal position in international law. States cannot invoke provisions of their domestic law to avoid their international law obligations.
Rory O’Connell is Professor of Human Rights and Constitutional Law at Ulster University, Northern Ireland. From 2014-2020 he was Director of Ulster’s Transitional Justice Institute (TJI). Rory tweets @rjjoconnell.
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