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UK floats Council of Europe exit after court halts Rwandan deportations

Britain’s first attempt at Rwandan deportations under a controversial new asylum policy has been stymied following an eleventh-hour intervention from the European Court of Human Rights.

LONDON (CN) — The United Kingdom government's plans to send asylum seekers to Rwanda to have their applications processed has suffered an early setback, after court rulings prevented the first deportations from taking place just minutes before flights were due to take off.

A reported seven people were scheduled to be deported from London’s Heathrow Airport to the Rwandan capital Kigali for asylum processing on Tuesday night – the first deportations to take place under Britain’s highly unusual and controversial new refugee policy.

The U.K.’s Court of Appeal had initially concurred with a High Court ruling that the flights could go ahead, on the basis that the British government would return the asylum seekers from Rwanda if a judicial review scheduled for next month found the policy unlawful.

However, the Court of Appeal reversed its position late on Tuesday following an intervention from the European Court of Human Rights, or ECHR, which issued an injunction in one of the cases. The ECHR indicated that the deportation should not go ahead until after the judicial review proceedings have resulted in a decision on the legality of the policy. The ruling allowed the other six asylum seekers to successfully secure injunctions.

Further deportations now seem unlikely until after the judicial review ruling, the outcome of which is almost certain to be appealed.

When the policy was announced in April, many commented on the questionable legality of Rwandan deportations and the likelihood that it would be stalled by potentially years of court proceedings. Similar refugee resettlement schemes attempted in Denmark and Israel have been buffeted by mounting legal obstacles. Indeed, the likelihood of such obstacles was acknowledged by the British Prime Minister Boris Johnson before any legal challenges had been mounted, with Johnson preempting court proceedings by slamming “a formidable army of politically motivated lawyers who for years who have made it their business to thwart removals and frustrate the government.”

The United Nations has repeatedly condemned the U.K.-Rwanda immigration partnership. A statement released by the organization's refugee agency states that it will “externalize the U.K.’s fundamental obligations to people seeking asylum in the country. The partnership proposes an asylum model that undermines the established international refugee protection system. It risks the arbitrary denial of access to asylum and lacks realistic durable solutions for the refugees affected.”

The agency says the policy does not “comply with the United Kingdom’s obligations under international law and finds the arrangement to be inconsistent with global solidarity and responsibility-sharing.”

In response to the flight grounding, British government ministers directed their ire at the Strasbourg-based ECHR and the Council of Europe, a non-EU European institution that created the court and to which Britain remains a member. Speaking in the House of Commons, Home Secretary Priti Patel said she welcomed “the decisions of our domestic courts, the High Court, the Court of Appeal and the Supreme Court to uphold our right to send the flight.”

“This decision by the Strasbourg court to intervene was disappointing and surprising, given the repeated and considered judgements to the contrary by our domestic courts,” she added.

Speaking to the BBC, Deputy Prime Minster Dominic Raab said that “it is not right for Strasbourg to intervene in the way it did,” and promised that proposed reforms to the U.K.’s landmark Human Rights Act that would ensure that it could not in the future.

Many Conservative members of Parliament went further than Raab, however, suggesting that the U.K. should withdraw from the Council of Europe. This was a possibility the prime minister left the door open for, saying that “all options are on the table.”

Unlike the EU – a more politically contested set of institutions – the Council of Europe has universal membership across the continent and is not traditionally a contentious organization. The U.K. was the among the first signatories to the treaty establishing the organization in 1949, and the British government played a highly active role in its establishment. The only countries to have ever left the council are Greece, during a period of military dictatorship, and Russia, following its invasion of Ukraine earlier this year.

Leaving the ECHR would thus make the U.K. quite the outlier by European standards. It would also threaten to unravel the Good Friday/Belfast peace agreement in Northern Ireland. The region’s membership in the ECHR is a specific requirement within the peace agreement. A withdrawal could hardly come at a worse time as uncertainty over post-Brexit arrangements continues to disrupt and collapse Northern Ireland’s fragile peacetime political institutions.

However, there are other political considerations at play when it comes to Conservative soundings over immigration and Europe. The schedule to which the Rwandan policy has been rolled out has provoked widespread suspicion and accusations of cynicism on the part of the government. The policy was initially announced just two days after Johnson was fined by police for attending a party while coronavirus lockdown measures were in place.

And the speed at which the deportations have been pursued, before the legal basis for the policy has even been established, correlates with the increasing intensity of the scandal that has consumed Johnson’s premiership. The prime minister narrowly won a vote of confidence among his parliamentary peers just last week, and the government’s desire to move on from the story and promptly change the news cycle is evident.

Provoking another round of conflict with European institutions – Johnson’s electoral bread and butter – may be just what the prime minister needs to steady his sinking ship, consolidate support among his base, and win back his most hardline of backbenchers.

There are some signs that the Rwandan policy is successfully doing just that. Polling suggests that the political salience of immigration and asylum has gradually crept up among the public in recent months, and that the policy performs well among Conservative-supporting and Brexit-backing voters. Simultaneously, the policy has provoked near-revulsion among liberals and left-wingers in Britain.

If the issue of Rwandan deportations succeeds in reopening the cultural divide between Remain and Leave voters from the U.K.’s 2016 EU referendum, then the proposals could contribute to an electoral salvage job for an otherwise increasingly unpopular government, regardless of the policy’s success on its own terms.

Alongside rising tension with the EU over Northern Ireland, the issue of human rights reform in the U.K. looks set to tee up yet another summer of confrontation between Britain and Europe. But the extent to which the British government can further capitalize on a cultural divide which propelled it to power remains to be seen.

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