Right to ignore ECHR rulings could be written into immigration Bill

Migrants picked up at sea attempting to cross the English Channel - BEN STANSALL/AFP
Migrants picked up at sea attempting to cross the English Channel - BEN STANSALL/AFP

British courts could be given powers to ignore European human rights rulings in the Government’s new immigration Bill, under plans being considered by ministers.

The new Bill, to be unveiled within weeks, is expected to place a legal duty on the Home Secretary to deport migrants who arrive illegally or enter the UK indirectly through a safe third country without permission.

However, ministers are concerned that removals could be hampered by rulings from Strasbourg.

One option to avoid this, which is under consideration, is including what are known as “notwithstanding clauses” in the Bill.

These would explicitly state that British courts can ignore European Court of Human Rights (ECHR) rulings if a migrant who entered the country illegally attempts to claim that their deportation would breach their right to a family life or right to liberty and security.

'Clause would have enabled Rwanda deportations'

Supporters say such a clause would also have enabled the UK to ignore the interim ruling by the ECHR which blocked the first deportation flight to Rwanda last June even though the policy had been ruled lawful by all tiers of the UK judiciary including the supreme court.

If Rishi Sunak decides not to include such clauses in the Bill, Tory backbenchers could seek to introduce them through an amendment when the law is introduced in the Commons.

Sir Bill Cash, the veteran Eurosceptic and chair of the European scrutiny committee, attempted to have a similar notwithstanding clause added into the Nationality and Borders Act, which he believes would have allowed the UK to ignore human rights claims to block deportations to Rwanda for economic or illegal migrants.

He only withdrew it after being assured by ministers that they “agreed with the sentiments” of the amendment and would address it in reforms of the human rights law and a review of the application of the ECHR.

'Ministers looking to close loopholes'

Two other options are also being considered by ministers to ensure deportations can go ahead.

One would prevent all small boat migrants from submitting a judicial review of their exclusion from the asylum system.

The second less radical proposal would only allow legal challenges to deportations be lodged once the migrant has been removed from the UK, a process known as “out-of-country appeals.”

One source familiar with the process said: “Ministers are looking to close down any loopholes for anyone other than those who arrive in the UK through a legal and safe route.”

All three options would see the UK remain within the ECHR although it was confirmed on Sunday that the Prime Minister is prepared to withdraw if European judges rule unlawful the plans to bar illegal migrants from claiming asylum in the UK.

'Sunak right to apply full force of law'

Mr Sunak is said to want to push the boundaries of what is legally possible while staying within the ECHR.

Last week he said he wanted a system where migrants who arrived illegally would be “swiftly detained” with their claims heard “in a matter of days or weeks” and then safely removed to their home country or Rwanda.

Business secretary Grant Shapps told Sky News' Ridge on Sunday: “What we can’t have is boats arriving here with illegal gangs and gangmasters people trafficking people here and to be impotent in return.

“So Rishi is absolutely right to apply the full force of the law to stop this illegal trade in human misery. And I think he is absolutely right to pursue that and I think he’s right to make sure we can change the law.”

It came as Home Office modelling is said to suggest 65,000 migrants will cross the Channel this year unless the Government takes action. A record 45,756 migrants reached the UK last year in small boats, a 60 per cent increase on 2021.

Enver Solomon, chief executive of the Refugee Council said “These plans shatter the UK’s long-standing commitment to support refugees regardless of the path they have taken to reach our shores.

“The Government’s own data proves that those in small boats are mostly refugees – people who have lost everything and are desperately seeking safety in the UK.   Now the government proposes to detain and deport them without a fair hearing treating them like criminals. It’s unworkable, costly and won’t stop the boats.”