Illegal migration bill: can the government ignore the European court of human rights?

The illegal migration bill has been approved by MPs and now moves to the House of Lords. The controversial bill would make it so that anyone who arrives in the UK irregularly (for example, by small boat) can be removed to their country of origin or a third country (for example, Rwanda).

The bill passed the Commons with a number of amendments, including one that allows the government to disregard “interim measures” issued by the European court of human rights.

The court typically uses interim measures to temporarily suspend an expulsion or extradition of an asylum seeker until their case can be properly heard by the court. These measures are used sparingly, and when the court suspects that sending someone to a particular country could risk violating their right to life, or put them in danger of torture or inhumane treatment. They are not the final say in a particular case – they just ensure that the court has a chance to consider all the evidence before someone is removed.

It is this sort of measure that blocked the first deportation flight to Rwanda from taking off in June 2022.

If the bill becomes law in its current form, the UK would be the only country in Europe that legally gives ministers permission to disregard the legally binding order of the European court of human rights.

According to the court’s rule 39, interim measures can be used in cases where the victim is facing an imminent and serious threat to their human rights. For instance, the court can ask a state to transfer a prisoner from a prison hospital to the civil one if they cannot be treated properly in the former. Or, to order a state not to discontinue medical treatment if it might violate a patient’s right to life.

The most widespread use of interim measures is in immigration cases. The court can temporarily prevent a migrant from being deported while deciding whether the deportation complies with human rights. If the court finds that the deportation is legal, the interim measures will be lifted and the applicant can be deported.

However, if the court decides that the applicant should not be deported, interim measures ensure that this can actually be carried out – if someone is deported to a country where they face threat of harm, it could be difficult to bring them back.

The court has ruled that failure to comply with interim measures violates a state’s obligations under the European convention on human rights (and therefore, international law). The convention, to which the UK is a party, states in Article 34 that parties must ensure the court can effectively deal with applications from alleged victims of human rights violations. Disregarding interim measures would disrupt this.

Complying with the court

Despite regular criticism of the European court of human rights, the UK has a good record of compliance with the court’s interim measures and final judgments.

Only once has it been condemned for failure to follow an interim measure. In a 2010 case, two alleged terrorists arrested by UK troops in Iraq were transferred to the Iraqi authorities despite a court-ordered interim measure preventing it. However, in this case, the government argued that there was no objective opportunity for them to comply. The amendments in the illegal migration bill would give power to the minister to disregard international law by setting aside the court’s interim measures.

More generally, interim measures are very well complied with. To keep compliance high, the court uses them rarely and only when it is strictly necessary. There are fewer than 50 cases where the court found a state violated the convention by failing to comply with an interim measure.

Russia, which was recently expelled from the Council of Europe, is still the leader in this unfortunate ranking, with around 20 judgments delivered against it. Although Russia has regularly failed to comply with interim measures, this practice isn’t part of Russian legislation.

There are some notable instances of compliance with interim measures even in Russia. For instance, when opposition leader Alexei Navalny was poisoned, the European court of human rights ordered Russian authorities to transfer him to Germany for medical treatment, which they did.

Generally, states take interim measures seriously, and even in cases of failure to comply, usually argue in court that they could not enforce them due to some objective reason.

Can they do that?

Put simply, states cannot just disregard valid and ongoing international obligations, such as the UK’s obligations under the European convention on human rights.

However, sometimes states do that. The example of Russia again comes to mind, when its parliament ruled that in certain circumstances the Russian Constitutional Court can set aside the judgments of the European court of human rights. This decision was widely criticised by academics, and international human rights organisations.

The European court of human rights is part of an international judicial system that only works if all parties agree and comply. According to the Vienna convention on the law of treaties states cannot use their domestic laws to avoid international treaty obligations. This is exactly what the illegal migration bill now does.

The fact that interim measures are usually complied with shows that they are a respected tool that allows the court to effectively deal with important cases of human rights. They are temporary and can be lifted when a judgment is delivered, but still hold states to binding international obligations. Adopting a legal clause that allows the government to ignore such obligations is a very dangerous precedent that could easily backfire, for example, if the court were to issue interim measures in respect to another member state that the UK government would be in favour of.

To use the football metaphor, imagine a team in the English Premier League suddenly decides not to abide by the offside rule, and introduces this in their team’s statute. This would not work in a match, and the team’s reputation would suffer so much that it would have much less of a say if, for example, a rival team decided to allow players to use their hands.

Kanstantsin Dzehtsiarou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.