Nor were states allowed to take into account the risk of harm to the host country, for example from suspected terrorists.Īll this Strasbourg case law was cemented into UK law by Tony Blair’s Human Rights Act, leading to the woeful state of affairs we face today. This case law expanded so that a mere risk, rather than a certainty or probability, that someone would be subjected to treatment contrary to Article 3 was sufficient to bar their removal. Instead, rights to asylum were covered in the Geneva Refugees Convention, which was drafted in parallel by very much the same group of countries.īut the European Court of Human Rights decided a series of cases which held states responsible for what happens to people outside their borders if they are expelled, despite the words of the Convention which only require states to secure the convention rights to people “within their jurisdiction”. The ECHR itself does not contain any rights to asylum. It is worth asking how we have got to this position. At worst, if the Supreme Court does not overrule the two to one majority decision in the Court of Appeal, that policy will be frustrated altogether. So at best, a vital policy of the Government supported by Parliament will have been frustrated by months of legal delays during which illegal migrants have continued to cross the Channel. That leaves the final decision with the Supreme Court, which may hear the case this autumn. So far, three senior judges (two in the High Court, and Lord Chief Justice Burnett who dissented in the Court of Appeal) have sided with the Government, and two in the Court of Appeal have sided with the UNHCR. So our domestic judges are left acting as referees on foreign relations matters between our own Government and a UN agency which seems committed to preventing the Rwanda scheme at all costs. His agency was allowed to intervene and effectively act as a party in the case, instructing counsel and submitting evidence to the court. Detailed agreements and monitoring arrangements between the UK and Rwanda would back this up.īut the UN High Commissioner for Refugees (UNHCR) does not agree. The UK Government’s assessment is that Rwanda would operate the asylum scheme properly, so asylum seekers transferred there would not be at risk of being returned to their home countries if they would be subjected to mistreatment there. Our courts, conscious of their lack of expertise in foreign relations matters, have traditionally deferred to the judgment of the executive. The judgment would have been read with absolute astonishment by lawyers only a generation ago. But in June the Court of Appeal said that would contravene Article 3 of the European Convention on Human Rights, which outlaws inhuman or degrading treatment. The Government’s solution is to remove illegal arrivals promptly to Rwanda. The incentives arise from the fact that the tangle of laws and treaties which apply in the UK make it virtually impossible to remove illegal migrants, however meritless their claims to asylum may be. This news highlights how vital it is to remove the incentives which lead people to undertake this dangerous journey. Once again, tragedy has struck in the Channel with the deaths of migrants crossing in small boats to reach England.
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