On 25 April, the UK signed into law a highly controversial policy that could see asylum seekers deported to Rwanda.

The policy was introduced to tackle the issue of small boats crossing the English Channel and forms part of Prime Minister Rishi Sunak’s key priority to tackle high levels of immigration.

Two specific aspects of the bill raised concerns. First, the presumption that Rwanda was a safe country and, second, that this assertion couldn’t be challenged by the courts.

The proposal to give ministers discretion to disregard international law, including interim measures issued by the ECtHR in deportation cases, was a clear red flag, says Lord David Anderson of Ipswich KBE KC, a barrister at Brick Court Chambers and cross-bench peer in the House of Lords. ‘The United Kingdom actually has a very good track record in complying with interim measures’, he says, ‘but to state in an Act of Parliament that the Minister was entitled not to comply with them was a step too far for many of us.’

Anderson concedes the government has introduced multilateral judicial mechanisms and training schemes to ‘remedy the defects’ identified by the Supreme Court. ‘But that’s no excuse for preventing the courts from hearing any evidence to the contrary’,’ he says. ‘If the government ever wants to overturn the conclusive presumption that Rwanda is safe, it will have to introduce more primary legislation, which doesn't seem a sensible use of parliamentary time.’

Although attempts by Anderson and others to amend some of the bill’s most controversial provisions were voted down, he believes the Lords has an important ‘restraining factor’ on government. ‘Second chambers mean second thoughts and challenge is good’, he said. ‘What we tried to do […] was to concentrate on issues of constitutional principle, rule of law and respect for international law, but[ …] when a government is politically, entirely committed to something happening, the House of Lords, as the unelected house, is unable to stand in its way. We saw the same thing with Brexit legislation.’

The policy has provoked controversy elsewhere. In March, as the scheme was still being debated in Westminster, the risk of deportation to Rwanda provided sufficient concern for Ireland’s High Court to rule that the UK was unsafe for returning asylum seekers.

The ruling followed a challenge to the lawfulness of Ireland’s designation of the UK as a ‘safe third country’ and featured two applicants who were refused international protection in Ireland based on their connection with the UK.

Ireland’s designation, which was last formally reviewed in December 2020, permits the Irish authorities to find that an international protection application is inadmissible if the applicant has arrived from the UK. However, in light of the Rwanda policy, the judge said Ireland’s current designation of the UK was ‘unlawful’ as a matter of EU law.

Nicolas Rollason, head of business immigration at Kingsley Napley and Co-Chair of the IBA Immigration and Nationality Law Committee, says the judgment exemplifies how other countries view the Rwanda policy. ‘The judgement didn’t get much publicity in the UK, but it’s quite a major ruling of the High Court in Ireland […] that these people are at risk,’ he says.

Sources close to the case told Global Insight the ruling is likely to be appealed, though the timeframe remains unclear. Meanwhile the Irish government appears to have identified a workaround. Within days of the UK signing the Rwanda bill into law, Ireland’s Justice Minister, Helen McEntee, said the government would pass its own legislation that would redesignate the UK as a ‘safe country’ to enable asylum seekers to be sent back to the UK.

The Irish government has said more than 80 per cent of recent arrivals to Ireland came over the land border with Northern Ireland via the Common Travel Area (CTA) – although there are no official statistics to support this claim. Under the CTA’s rules, UK and Irish citizens can travel freely across the border, but it makes no reference to refugees.

Legal aid for asylum cases in the UK is virtually non-existent, meaning very few asylum seekers will be able to appeal against deportation. Despite the severely backlogged judicial system, the government says there will be judicial capacity to fast-track Rwanda appeals.

A spokesperson for the judiciary confirmed that 25 dedicated hearing rooms and 150 judges will be available to oversee asylum cases. Global Insight also understands the Judicial Appointments Commission is recruiting and training more judges to start sitting from ‘the summer’ when the first flights to Rwanda are expected to leave.

As diplomatic tensions between London and Dublin swirl once again over the Irish border, Rollason is perturbed about the damage the Rwanda policy has already inflicted on the UK’s global standing. ‘The real effect is to send out a message to the rest of the world that the UK does not observe the rule of law or take it seriously’, he says. ‘I think that will really backfire on the UK, particularly if we see that it doesn't have a deterrent effect.’

As of 8 May, the Home Office reported 8,826 migrants had crossed the English Channel so far in 2024 – more than the same period in 2022 and 2023.

Image credit: MichaelAntonKraus/AdobeStock.com

In a judgment in April, the European Court of Human Rights (ECtHR) found that climate frameworks and policies put in place by governments – or the lack of them – can breach human rights. In Verein KlimaSeniorinnen Schweiz & Ors, the Court ruled that the Swiss government had breached the right to private and family life under Article 8 of the European Convention on Human Rights (the ‘Convention’) by failing to take timely and appropriate action in designing and implementing legislation on the climate crisis.

The Court’s judgment potentially opens up a raft of claims against government inaction across countries who are signed up to the Convention. ‘The Court has gone much further than anyone expected and it will set a new precedent in climate litigation’, says Lucy Pert, Jurisprudence Observer Officer of the IBA Litigation Committee and a partner at Hausfeld in London.

Another important aspect of the case concerns the principle of actio popularis. The Convention doesn’t admit general public interest complaints, as Corina Heri, a postdoctoral researcher in the Climate Rights and Remedies Project within the University of Zurich’s Faculty of Law, explains. ‘You can’t just come to the ECtHR when you don’t like a policy; you have to have suffered yourself.’

The judgment stands out for numerous reasons, including that it sets positive obligations and duties on states. John Balouziyeh is Treasurer of the IBA Human Rights Law Committee and a partner at Curtis, Mallet-Prevost, Colt & Mosle in New York. Speaking in a personal capacity, he says that ‘establishing positive duties to act is rare in international law. Some treaties codify affirmative duties to act or to rescue, but they are the exception. Rather [than] codify positive duties to act, most international treaties establish negative duties that prohibit parties from violating rights.’

However, the Court stated, climate change is different because it’s a ‘common concern of humankind’ and, therefore, it could allow a case to be brought by an association of people ‘in the context of climate change’. As Heri says, ‘normally the Court is really focused on individuals, but it clarified that climate change is a new challenge and we need to come up with different solutions.' The Court is also being quite pragmatic. ‘It is ensuring that future cases are bundled together and so it won’t be swamped by thousands of individual cases’, adds Heri. ‘Where individuals band together they can share resources and expertise in cases that are by nature complex and expensive.'

Critics argue that the case has overstepped the mark. Dissenting Judge Eicke said that the Court has de facto created an entirely ‘new right to effective protection from […] climate change’ and imposed a new ‘primary duty’ to adopt and apply rules and regulations that are ‘capable of mitigating its future effects’.

The ECtHR described its aim as being to respect the role of the executive. ‘Judicial intervention […] cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government’, it said. Savaresi says the Court made it clear ‘that it is not taking the place of the executive. But it felt that we cannot have the law staying on the bookshelf as a dead letter, we need to give it life and meaning.’

The ECtHR set out where governments have a wide scope in which to operate, and where it’s narrower. It stated that governments have a narrow margin regarding what states should be aiming for, such as setting out emissions reduction ‘targets and pathways’ and providing evidence on compliance with those targets, but a wide margin of appreciation in assessing how to reach those objectives.

There don’t, however, seem to be limits as to the types of cases and factual matrices in which the judgment could be applied. It could be cited in respect of all manner of climate policies and related issues, perhaps even criminal cases, says Heri. ‘The judgment could also be relied on in potential protest cases where protestors argue that they cannot be criminally charged for acts of civil disobedience because this is a climate emergency’, she says.

In terms of territorial scope, the KlimaSeniorinnen ruling will have a direct impact on the 46 countries in the Council of Europe. It’s not clear what influence it could have beyond that. The US, for example, currently has some of the highest numbers of climate cases. But, says Savaresi, the ruling may not resonate there as ‘the US is rather self-referential when it comes to climate litigation’.

The ECtHR also ruled on two other climate cases alongside KlimaSeniorinnen. The Agostinho v Portugal & Ors case was ruled inadmissible because the extension to 32 other states as well as Portugal was ‘untenable’, and the claimants had not exhausted domestic remedies first. The Carême v France case was also found inadmissible as the claimant was now living in Brussels.

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