Migration crisis: Rule of law under threat as UK government passes controversial Rwanda deportation law
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.
The scheme’s critics argue that offshoring asylum seekers is inhumane, extremely costly and will fail to deter the number of migrants attempting to reach the UK.
An interim measure by the European Court of Human Rights (ECtHR) blocked the first deportation flight to Rwanda in June 2022. In November, the UK Supreme Court ruled the policy was unlawful, upholding a Court of Appeal decision, which said it risked the human rights of asylum seekers once they arrived in Rwanda.
However, in December, the government introduced draft legislation to allow deportation to go ahead. In the ensuing months, the bill’s provisions were fiercely debated, with peers in the House of Lords – the secondary revising chamber, which scrutinises, reviews and proposes amendments to laws – voting multiple times to add significant safeguards.
What we tried to do […] was to concentrate on issues of constitutional principle, rule of law and respect for international law
Lord Anderson
Cross-bench peer, House of Lords
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.
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Panel of experts publishes report supporting ICC arrest warrants for crimes in Israel and Palestine
A panel of experts in international law published a report in May at the request of the Prosecutor of the International Criminal Court, Karim Khan KC. The panel was established by the Prosecutor to examine his investigation into the ‘Situation in the State of Palestine’, which covers international crimes committed either on the territory of Palestine or by a Palestinian national.
The panel was comprised of the following experts: Lord Justice Fulford, Judge Theodor Meron CMG, Amal Clooney, Danny Friedman KC, Elizabeth Wilmshurst KC, Professor Marko Milanovic, Professor Sandesh Sivakumaran and the International Bar Association’s Human Rights Institute (IBAHRI) Director Baroness Helena Kennedy KC.
The panel was given the task of advising the Prosecutor on whether his applications for arrest warrants met the standard provided in Article 58 of the Rome Statute of the International Criminal Court.
Members of the panel unanimously endorsed the Prosecutor’s assessment that the Court had jurisdiction over the case and that there were ‘reasonable grounds to believe’ that individuals named in the arrest warrants have committed war crimes or crimes against humanity within the jurisdiction of the Court. These individuals include senior leaders of Hamas and Israeli Prime Minister Benjamin Netanyahu.
Khan issued the arrest warrants on 20 May and said: ‘Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity. Nothing can justify wilfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.’
‘Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my Office and the Court. This is how we will prove, tangibly, that the lives of all human beings have equal value’, he concluded.
Read the full statement here.
IBAHRI commemorates World Press Freedom Day
The United Nations World Press Freedom Day took place on 3 May and IBAHRI marked the occasion by reiterating the importance of protecting and respecting journalists and media personnel around the world.
‘A free media is a central pillar of democracy, and World Press Freedom Day marks an opportunity to champion the vital work of journalists in holding truth to power and guarding human rights globally’, the IBAHRI said in a statement.
The IBAHRI highlighted a number of concerning statistics regarding press freedom and the safety of journalists around the world. This includes the killing of more than 120 journalists and media workers – rising to over 140 in the last seven months –covering the Gaza conflict since 7 October 2023 and the arrest of 25 journalists in Gaza, with 19 of those journalists being detained. However, the persecution faced by journalists is not limited to times of conflict.
‘Action is needed now more than ever to protect the safety of journalists and press freedom, and to hold their abusers to account. We should all feel any attack against a journalist for exercising their legitimate professional duties as an attack upon our right to know. A free media is integral to highlighting injustice and is indispensable in the fight to uphold human rights’, the statement reads.
Read the full statement here.
IBAHRI appointed as amicus curiae in Maria Ressa’s cyber libel case
The Supreme Court of the Philippines has accepted the amicus curiae motion filed by the IBAHRI in the case of People of the Philippines v Maria Ressa and Reynaldo Santos Jr.
In June 2020, Maria Ressa was convicted of cyber libel, a decision which was upheld by the Philippines Court of Appeal in July 2022. In July 2023, the IBAHRI submitted a motion to the Supreme Court of the Philippines for IBAHRI to be considered as amicus curiae and requested permission to submit a brief. This was granted in April 2024.
IBAHRI Director Baroness Helena Kennedy KC said: ‘We hope the expert analysis provided in this amicus curiae brief will assist the Court in its deliberations and in making the correct final determination.
Since 2018, the IBAHRI has been closely monitoring the continued killings of, and attacks against, lawyers and judges in the Philippines. In April, the IBAHRI ran training sessions for Filipino lawyers on UN strategic engagement, including: sharing of best practices and lessons learnt on individual complaints mechanisms.
Read the full statement here.
IBAHRI at the 55th session of the United Nations Human Rights Council
The IBAHRI participated in the 55th session of the United Nations Human Rights Council (UNHRC), which was held from 26 February – 5 April. The UNHRC is an intergovernmental body within the United Nations system and is comprised of 47 states who are responsible for the promotion and protection of global human rights.
The IBAHRI participated in the informal negotiations of the resolution on the human rights situation on Belarus, making general remarks on the collapse of the rule of law in the country, which threatens further deterioration ahead of the 2025 elections. The resolution establishes a new standalone independent investigative mechanism, tasked with collecting and preserving evidence of potential international crimes beyond the 2020 elections period, with a view to advancing accountability.
Jointly with the Ukrainian Bar Association, the IBAHRI delivered a statement during the interactive dialogue (ID) with the Independent International Commission of Inquiry on Ukraine, condemning recent attacks on civilians and civilian infrastructures. With the Permanent Mission of Belgium, the IBAHRI also co-organised a side event titled ‘Uprooted Children: Abducted, Forcibly Transferred and Deported during Conflict. Ukraine as a Case Study’. The event was co-sponsored by 19 permanent missions with high-level ambassadorial attendance.
IBAHRI Director Baroness Helena Kennedy KC delivered an oral statement during the ID with the Special Rapporteur on Afghanistan, referencing the IBAHRI’s recent work on the Gender Apartheid Inquiry and calling for the situation of women and girls to be classified as apartheid.
The IBAHRI and Lawyers’ Rights Watch Canada (LRWC) delivered a joint statement during the ID on the Occupied Palestinian Territories (OPTs), denouncing Israel’s systematic, discriminatory misuse of laws and orders against people throughout the OPTs, including human rights lawyers. The IBAHRI and LRWC called for an immediate ceasefire.
Read the highlights and key takeaways here.
IBAHRI expresses serious concern over trial of six Turkish defence lawyers
The IBAHRI has expressed serious concern about the trial in Türkiye of six former defence counsel for Adnan Oktar and his associates, which took place on 22–25 May. Given reports that the trial violated domestic, regional and international human rights law, the IBAHRI emphasises the importance of affording due process to the lawyers.
The defendants – Burak Temiz, Pelin Durmuş, Sinem Mollahasanoglu, Tugba Bal and Ayşe Toprak and Arzu Gül – are charged with ‘membership of an organisation established for the purpose of committing a crime’ under Article 220 of the Turkish Criminal Code. It’s been alleged that the criminal charges against the lawyers lack a clear legal basis and that they’ve been denied access to legal counsel.
Adnan Oktar was initially arrested in 2018, alongside numerous associates, and ultimately sentenced to 8,658 years in prison on charges including deprivation of liberty and running a criminal enterprise. The arrest, detainment and prosecution of the defendants in his case reportedly involved significant violations of legal procedure and human rights law, including restrictions on access to legal counsel.
Since the beginning of their involvement in the case, those representing Oktar and his associates have reportedly also been the targets of deliberate and repeated judicial harassment, intimidation and arbitrary detainment by Türkiye’s police.
Read the full news release here.
International Fair Trial Day and Ebru Timtik Award
Ebru Timtik was a Turkish lawyer sentenced in 2019 for terrorist offences in a trial widely condemned as incompatible with internationally recognised fair trial principles. She died in 2020 after going on hunger strike to protest her innocence and the lack of respect for fundamental fair trial principles in her prosecution and conviction.
Following this, several legal organisations, including the IBAHRI, came together to organise an annual International Fair Trial Day in her memory and to focus attention on cases involving similar issues with achieving fairness in trials. The Ebru Timtik Award is also given to an outstanding human rights lawyer or lawyers.
The first International Fair Trial Day took place in 2021, focusing on Türkiye. The following years have spotlighted Egypt and Mexico respectively.
The themes covered at the International Fair Trial Day 2023 in Mexico have recently been documented in a report. It considers concerns about fair trial rights in Mexico, enforced disappearances, attacks against the independence of the judiciary.
International Fair Trial Day 2024 will take place on 14 June 2024 and focus on the Philippines. Read the Mexico report here.
Climate crisis: European Court of Human Rights opens door for governments to face claims over inadequate measures
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.
A spokesperson for the Swiss Federal Office of Justice, which represents Switzerland at the ECtHR, tells Global Insight that ‘the comprehensive judgment will be analysed with the authorities concerned and the measures which Switzerland has to take for the future will be examined’.
The KlimaSeniorinnen case was first brought in 2016 by an association of older women in Switzerland in the country’s domestic courts. They argued that the Swiss authorities were not doing enough to legislate for limiting greenhouse gas emissions. The action moved to Strasbourg in 2020. Although the ECtHR judgment aligns with a number of recent European climate cases, such as Neubauer et al and Urgenda – where the respective courts found that the state has a legal obligation to take sufficient action to address the climate crisis and meet the objectives laid down in the Paris Agreement – it’s ‘revolutionary’ for the ECtHR, says Annalisa Savaresi, Professor of International Environmental Law at the University of Eastern Finland and Stirling University. ‘In the context of the ECtHR, it has never dealt with a climate change case before’, she explains. The Court clearly stated that climate change was different and that this case ‘raised unprecedented issues’ for the Court itself.
The Court has gone much further than anyone expected and it will set a new precedent in climate litigation
Lucy Pert
Jurisprudence Observer Officer, IBA Litigation Committee
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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