UK may not have to comply with European Court injunctions blocking flights to Rwanda

The UK government intends to resume deportation flights to Rwanda 'by summer' Photo: JUSTIN TALLIS/AFP

The UK may not be bound by European Court orders banning deportation flights to Rwanda, according to a report by one of Britain's leading constitutional experts.

The European Court of Human Rights (ECtHR) ) does not have the power to issue such injunctive relief because the founding countries never granted it such power, according to a report for the Policy Exchange think tank by Richard Akins, Professor of Law and Constitutional Government at the University of Oxford.

Prof Akins argues that the UK can legally refuse to comply with such provisional measures, known as Rule 39, as the ECtHR does not have the power to require the UK to do so.

The first deportation flight to Rwanda was blocked last June by a court rule 39 injunction, which was issued by a single unnamed ECtHR judge behind closed doors at 11:00.

It was granted despite all levels of the UK judiciary, including the Supreme Court, giving it the green light.

As a result, the government had to delay any flights until the legality of Rwanda's scheme was determined in the UK's national courts. The Court of Appeal, which is currently hearing the case, is expected to rule on its legality within days.

Former Supreme Court Justice Lord Sumption (pictured) supported Prof. Ekins. rating Photo: Mirrorpix

In the Irregular Migration Bill currently before the House of Lords, ministers are taking on the power to override Rule 39 injunctions and are pushing for system reforms that would require the ECtHR to grant a right of appeal to such interim measures and open the process to public scrutiny.< /p>

Professor Ekins' assessment was supported by two leading British judges. Former Supreme Court Justice Lord Sumption said the legal basis for Rule 39 injunctions was «thin» and was limited to «recommendations, not orders».

Strasbourg is «not empowered»

He said: “The Convention on Human Rights, which is the only instrument that the States Parties have actually agreed to, does not, on the face of it, give the Strasbourg Court the power to extend its own jurisdiction through its internal rules of procedure. It binds certain final judgments of the court, but not interim measures.

“If interim measures are available in cases like this, then it is likely that no legislative scheme to expedite the removal of illegal immigrants will be successful.”

Former Lord Justice Lord Hoffman said that rule 39 injunctions were only «advisory» but Strasbourg erroneously expanded them to be legally binding.

«The Court cannot thus expand your jurisdiction through your own bootstraps. And if the court does not have jurisdiction to issue such an order, Member States can ignore it,” he said.

Professor Ekins said that the European Convention does not give the Strasbourg Court the power to grant temporary injunctions, and member stations are only bound by final judicial decisions.

«Instead, the Rule 39 measure is an act of a single judge, often performed without a hearing and without explanation. The UK has a strong case that in trying to force states to comply with Rule 39, the Strasbourg Court is acting outside the ECHR and therefore lacking jurisdiction,” its report says.