Politico, 06 March 2024
Curtailing migrant rights may help score quick political gains, but electoral success doesn’t give governments carte blanche to place themselves above the law.
The upcoming adoption of the United Kingdom’s Safety of Rwanda Bill, currently working its way through the House of Lords, is perhaps the starkest illustration of this dangerous trajectory.
Aiming to allow the U.K. to permanently deport asylum seekers to Rwanda, this bill has been met with strong criticism — including in the House of Lords, where it was rebuffed multiple times earlier this week. And yet, the government seems intent on pushing through this legislation, which will block access to judicial redress for those concerned Rwanda might deport them to their country of origin, where they may well face torture.
This bill will not only prevent redress for the most serious human rights violations, but by specifically excluding asylum seekers from access to justice, it will also negate the principle of equality before the law.
Furthermore, the Rwanda Bill significantly interferes with judicial independence, compelling judges to align with the government’s stance that Rwanda is a safe destination, despite the U.K. Supreme Court’s well-considered and detailed finding to the contrary. Judges will also be prevented from considering the U.K.’s international obligations here — including those under the European Convention on Human Rights — and from applying core parts of the Human Rights Act, which gives life to the convention in U.K. law. The legislation targets the European Court of Human Rights (ECtHR) too, as it will provide ministers discretionary powers to overrule the court’s interim measures in relation to the removal of people to Rwanda.
But my concerns are not limited to the U.K. The scope of the problem is much larger.
In France, authorities recently deported an individual to Uzbekistan, disregarding an interim measure issued by the ECtHR. The French government also ignored a subsequent decision by the Council of State to bring the deported person back to France. And the minister of interior even went so far as to publicly champion these decisions to disregard both the EctHR and France’s own highest administrative court. Meanwhile, certain MPs have been vocal about their calls to amend the French Constitution to include exceptions in relation to migration policy.
The message these developments convey is dangerous. It signals that the authority and independence of courts, along with access to justice and human rights, can be sacrificed when governments think it suits their policy priorities or electoral considerations.
Other European countries certainly haven’t been immune to such thinking either, with some adopting similar policies and laws that damage national legal orders, as well as the effectiveness of international treaties, in order to meet their domestic migration agendas. But when two countries belonging to the Council of Europe’s founding group — and that are often held in high regard as standard-bearers for rule of law, human rights and democracy — openly and unapologetically engage in such practices, it inevitably emboldens others to consider similar approaches.
This can then create a domino effect — one that starts with denouncing the crucial role of checks and balances, then spills over into a direct threat to human rights, rule of law and, ultimately, the core values of democratic societies.
It also specifically puts the effectiveness of the European Convention on Human Rights — a pillar of the European legal and democratic order — at risk. Over the past 75 years, Council of Europe members have painstakingly developed a comprehensive human rights system and committed to uphold it, both individually and collectively. However, it is now increasingly common to see politicians attack this very system and even advocate for a withdrawal from the convention — unless, that is, the ECtHR bends to the will of governments on migration cases.
These are misguided, drastic and headline-grabbing suggestions. Yet other, smaller steps slowly but surely erode the system as well. In particular, countries ignoring the ECtHR’s interim measures, which are issued only in exceptional cases, where there’s an imminent risk of irreparable harm, is a real problem. Such disregard directly undermines the long-established and binding nature of these measures, especially their function as a crucial emergency brake on government overreach.
Over the last six years, I have regularly alerted national authorities regarding the need to confront the erosion of rule of law — especially around migration, where the decline is most pronounced. Asylum seekers and migrants are easy targets. But while curtailing their rights and access to justice may help score quick political gains, electoral success doesn’t give governments carte blanche to undermine universal human rights, compromise judicial independence and effectively place themselves above the law.
These elements are all integral to the democratic fabric of our societies and must be protected — not dismantled.