UK
Attorney General ‘could block Rwanda migrant flights if European judges intervene’


Ben Riley-Smith
Thu, 5 October 2023 

Victoria Prentis, the Attorney General, has ruled nothing out, according to a government source - Christopher Furlong/Getty Images

Cabinet ministers are braced for the Attorney General to block the deportation of migrants to Rwanda if the European Court of Human Rights intervenes again to stop flights.

The Home Office is preparing to restart flights to Rwanda within weeks if the Supreme Court rules that the scheme is legal. A decision is expected next month. However, European judges could still order the flights to be stopped, as happened last June.

Some ministers believe that, should they do so, Victoria Prentis, the Attorney General, would insist that the order be obeyed because it would be legally binding despite new powers theoretically allowing the UK to ignore it.

Rishi Sunak would then face the prospect of either overruling the concerns of his Attorney General or accepting delays to a policy he believes will deter small boat Channel crossings.

The development would also risk splitting the Cabinet over whether to promise to leave the European Convention on Human Rights at the next general election.

On Thursday, allies of Ms Prentis insisted she does not have blanket opposition to using new powers in the Illegal Migration Act to ignore European Court injunctions and has “ruled nothing out”.

The Government is drawing up contingency plans for both potential outcomes of the Supreme Court hearing, and sources dismissed “speculation” about what moves could be taken after the ruling. Some government insiders have even speculated that Ms Prentis could be moved in a reshuffle before the crunch decision.

The Supreme Court will start its three-day hearing to determine whether it is lawful to deport migrants to Rwanda to claim asylum there, a policy central to Mr Sunak’s “stop the boats” pledge, on Monday.

The Court of Appeal ruled that the policy was unlawful because of the risk that migrants could then be sent back to their country of origin to face persecution or inhumane treatment, in breach of article three of the European Convention on Human Rights.

Tories have long debated whether the UK should remain a signatory of the convention, struck in 1950, which is overseen by the court in Strasbourg.

Cabinet ministers have told The Telegraph that around a quarter of those at the Cabinet table could consider supporting leaving if Rwanda flights are blocked, naming Suella Braverman, Robert Jenrick, Steve Barclay, Kemi Badenoch, Grant Shapps, Alister Jack, David TC Davies and Chris Heaton-Harris.

None are publicly calling to leave the convention, meaning the claim is speculative.

If the Rwanda policy is deemed lawful, flights could be scheduled to take off within weeks. If it is deemed unlawful, the Government is considering signing a formal treaty with Rwanda the following day to counter the legal concerns raised.

This would be likely to make it explicit that migrants deported would not then be sent back to their countries of origin even if their application for asylum in the UK is rejected, currently a point of legal contention.

The Home Office could then choose to push ahead with flights, arguing that it had addressed the points raised in the ruling – a claim certain to be challenged by critics.

Under both scenarios, the European court that oversees the convention could issue another injunction, known as a Rule 39 order, to stop the flights. One such order blocked the first Rwanda flight at the 11th hour last June.

The Government would then have to decide whether to use the powers in the Illegal Migration Act to ignore such a ruling and start flights anyway.

Ms Prentis is said to have had concerns in the past about the legality of such a move before eventually agreeing to include it in the legislation. Some in the Cabinet believe she would push back on attempts to defy Strasbourg’s order and start flights to Rwanda, potentially via formal legal advice.

Allies said she was open to approving flights anyway but would have to scrutinise the specifics of the Supreme Court ruling and what specifically the European court did with its injunction.

A government source said: “The Attorney General has ruled nothing out. She is working closely with Number 10 and the Home Office on stopping the boats. It’s right that we wait for the outcome of the Supreme Court case rather than speculate on hypotheticals.”

A Home Office source said: “This is simply speculation, and the Government has been clear all along that we’ll do everything we can to stop the boats. We’re confident in the legality of our Rwanda scheme and await the Supreme Court’s decision.”

The decision about the way forward would ultimately come down to Mr Sunak. He has not publicly speculated on what will happen after the Supreme Court ruling, and Cabinet colleagues say he is resistant to the idea of leaving the European Convention on Human Rights.

Promising to quit would trigger a backlash from liberal Tories and risk international condemnation because many Western countries are signed up to the convention, created in part thanks to the support from Winston Churchill.