Image description: a plane on the runway.
Since its announcement, the Conservative government’s policy to remove asylum seekers to Rwanda before considering their asylum application has generated deep concern amongst human rights commentators and experts. The European Court of Human Rights recently stepped in, issuing “interim relief” under Rule 39 of the Rules of Court, preventing a total of three deportations from occurring until the lawfulness of the policy could be tested in domestic courts. These orders, alongside a handful of domestic injunctions which followed, effectively grounded the first flight headed to Rwanda.
Unsurprisingly, this drew the chagrin of usual suspects – critics of ECHR and anti-immigration tabloids among them. It also drew the ire of Justice Secretary, Dominic Raab. The Telegraph reported that Raab advocated “ignor[ing] last-minute injunctions in future”; indeed, provisions to this effect soon appeared in his newly-announced Bill of Rights. Tossing red meat to the base is par for the course for Raab, but, if we are to take his warning seriously, it might be worth pausing to consider what Rule 39 does, and how it is used in practice.
Firstly, it is important to emphasise that the Rule 39 mechanism is only ever used in novel, exceptional cases. The ECtHR jurisprudence indicates that interim measure should only be issued in the face of “an imminent risk of irreparable damage” to a claimant. Usually this only occurs when there is a risk of Article 2 (right to life) or Article 3 (freedom from torture) being breached. For instance, the mechanism was used to halt the execution of a member of the Ukrainian armed forces in Russian-controlled Donetsk. The same authorities also sentenced two British nationals to death.
Rule 39 orders were also issued in two famous cases concerning the UK, involving Charlie Gard and Pippa Knight, seriously ill children whose families challenged the medical decision withdrawing their care. The temporary injunction issued by the Court allowed it time to examine their cases before their life support was turned off.
The exceptional nature of Rule 39 measures is evidenced in the official statistics as to its use. In 2019, Strasbourg received 82 requests for interim measures against the UK; none were granted. In 2020, it received 47 requests; 2 were granted. In 2021, it received 51 requests; 5 were granted. This means that during the last three years for which we have reliable data, Strasbourg has granted just 7 of 180 requests for interim measures (a success rate of just 3%).
Interim measures are tailored to the individual situation of the applicant and are designed to be as short as necessary. Often, as with the Rwanda deportees, the measure is designed to stay in force until meaningful examination of the merits of the policy can be undertaken. If it is considered that this examination must be conducted by Strasbourg, the case is expedited so it can be determined as a matter of urgency. Further, an interim measure can be modified or rescinded at any point, should the circumstances of the claimant’s situation change.
Importantly – this is something which has seemingly eluded certain commentators – issuing an interim measure does not indicate that the action being put on pause will ultimately be found to be unlawful. In Gard and Knight, the life support cases mentioned above, the Court later agreed with the UK that the children’s care could be withdrawn. Other examples include Ahmad, D and Harkins. Indeed, an interim measure does not prevent the actual policy from going ahead. It simply requires that policies be subject to scrutiny before their implementation.
Ultimately, whilst interim measures can slow government action, we should remember that they are temporary measures aimed at ensuring that the legality of the process is ensured. They are rarely granted, except in exceptional cases like the present one.
Should the government choose to go against the Rule 39 order in the current case, as some have argued, not only would this put the UK in direct breach of its international law obligations, but should a deported individual need to be returned at a later date, this will be of great cost to both the government (financially) and to the claimant (psychologically). Surely, it is much better for the government to know when they can, and when they cannot, remove someone. Rather than acting as an impediment to effective governance, Rule 39 interim measures ensure that ECHR member states act lawfully and fairly. The UK should be no exception.