The UK would break international law if it ignored emergency orders from the European court of human rights to stop asylum seekers being flown to Rwanda, the head of the court has said.
Síofra O’Leary, the ECHR president, told a press conference there was a “clear obligation” for member states to take account of rule 39 orders, interim injunctions issued by the Strasbourg-based court.
While the prime minister, Rishi Sunak, has not definitively said he would ignore any such orders, he has held open the prospect, saying he has been “crystal clear repeatedly, that I won’t let a foreign court stop us from getting flights off”.
It was such an order from the ECHR – sometimes termed “pyjama injunctions” because of their tendency to be issued late at night – that helped stop initial plans for ministers to deport asylum seekers who arrive in the UK to Rwanda.
O’Leary’s comments mark another setback for Sunak in his efforts to resurrect his flagship immigration policy, one which is yet to see a single flight take off and which prompted a significant rebellion among Conservative MPs last week.
O’Leary said: “There is a clear legal obligation under the [European convention on human rights] for states to comply with rule 39 measures.” Such injunctions, she added, were only issued “in exceptional circumstances where there is a real and imminent risk of irreparable harm”.
She added: “Where states have in the past failed to comply with rule 39 indications, judges have found that the states have violated their obligations under article 34 of the convention.”
Article 34 establishes the right of people or groups to apply to the ECHR for redress if they believe their rights under the convention have been breached by domestic courts.
O’Leary noted the UK had “always complied with rule 39 measures”, and had, in 2021, urged Russia to abide by a ruling connected to the detained opposition leader Alexei Navalny, a noted opponent of the president, Vladimir Putin.
Sunak’s government is treading a legal tightrope in seeking to get deportation flights started as early as spring despite the ECHR’s doubts and a damning verdict in November by the UK’s supreme court, which ruled that the scheme could not go ahead.
Since the ruling, which was based on concern for the safety of those deported, Sunak has announced plans for an undated treaty with Rwanda that adds safeguards, and for the safety of Rwanda bill, which in effect seeks to set aside the supreme court decision.
Both of these plans have experienced trouble. On Monday, the House of Lords voted to delay ratification of the treaty so that more protections could be added. Peers will soon begin considering the Rwanda bill, and are expected to seek amendments.
The bill passed its third reading in the Commons last week with just 11 Conservative MPs opposing it, but only after more than 60 rebels attempted to secure amendments to toughen up the bill, including measures to completely set aside ECHR injunctions.
Sunak’s official spokesperson said it “would be bizarre” to make a comparison between the treatment of Navalny and the Rwanda deportations.
He said: “We are confident our legislation is compliant with our international obligations. We’re clear the bill and the treaty address the supreme court’s concerns. There should be no need for Strasbourg to intervene to block flights in the way they did in 2022.”
O’Leary declined to comment on the progress of the bill. She said: “I know there’s a very healthy debate in the United Kingdom relating to the content of the bill.
“It’s a country which is blessed with many, many international legal experts and a very active civil society. So I am sure that all of those issues can be fully examined.”