THE UK Government is following the same path as Russia by drawing up legislation seeking to enable it to ignore decisions on asylum seekers issued by European judges, a law expert has argued.
The controversial Illegal Migration Bill, which was passed by the Commons last month and is now going through the Lords, included an amendment to allow it to disregard “interim measures” issued by the European Court of Human Rights (ECtHR).
These are used to temporarily suspend the removal of an asylum seeker until their case can be properly heard and was used to halt the first deportation flight of asylum seekers to Rwanda in June last year.
In a blog for University College London’s Constitution Unit, Dr Veronika Fikfak, said: “British judges have been told that if the bill is enacted with the new amendments, it will mean that they ‘cannot apply any interim measure, aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm’.
“The House of Lords Constitution Committee has raised serious concerns about the potential impact of the bill on the rule of law and human rights.
“I argue that this order puts the UK on par with Russia and Poland, which have used domestic law to prevent compliance with their international obligations under the European Convention on Human Rights (ECHR).”
She told the Sunday National: “My point is this kind of stance of direct defiance is so rare – it is so incredibly rare because countries when they meet at international level and they meet in France and Strasbourg, they like to be good to each other.
“They like to get along, they like to support each other.
“These are diplomatic circles where people frequently meet, they go out for dinners, they do receptions, so this is a small circle where countries like to be liked.
“And they play on this idea that they have a good reputation – Denmark plays on this idea that it’s a very social protective country, UK plays on the idea of that it’s a rule of law country.
“So this stance that you’re going to challenge and put yourself against this community, a community of states that uphold human rights, is a really different stance, it’s a really different position.
“For me, when I looked at the examples we had, it was really like, it was so rare and, but it was really clear that the UK is now putting itself in this group of states – of a few states – that have chosen this clear defiance.”
Fikfak, associate professor in international law at UCL’s department for political science, who also serves as a judge ad hoc at the ECtHR, said the UK Government’s stance had begun changing from that of a “good complier” after 2010, when the Tories came to power.
She pointed out the UK had been one of the countries that helped draft the European Convention on Human Rights, was one of the founding members of human rights body the Council of Europe and has been a “key player” in domestic legislation in this area.
“The fact that this has now changed – I’m not saying it was a sudden move because it wasn’t, it was a gradual move – but it’s a big departure from where we were at the beginning of this idea of Europe and protection of human rights in Europe,” she added.
The UK Government claims the legislation is required to stop people attempting to cross the Channel in small boats to claim asylum in the UK and it will stop “the endless-merry-go round of spurious, last minute legal challenges that are used as a delay tactic to stop those with no right to be in the UK from being removed.”
Fikfak said: “I think states when they decide on their position, they are sort of juggling audiences or they’re thinking about two audiences.
“One is the domestic audience, the national audience and one is the international.
“And I think often because countries or governments think about short term, more than long term, they will focus on the domestic audience.
“So obviously here, they’re probably thinking about the next election.
“They’re thinking about what their campaign slogans were, those kind of things they take into account and think about what will appeal to their base.”
She said that while it might be a stance which is being taken in only relation to migration at the moment – which countries often give each other more “leeway” on – concerns also existed about setting a precedent.
“It’s always easier to do it second time and third time and fourth time because you can see what the response is from the court,” she added.
“So it’s almost like a testing strategy – will it work, will it not?”
