Home Office warns that European court intervention is 'critical' threat to Rwanda plan
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Home Office officials have warned of a “high risk” that European judges will block deportations to Rwanda, The Telegraph can disclose.
A “risk register” drawn up by civil servants highlighted the prospect of a fresh injunction from Strasbourg as a significant threat that could derail the scheme designed to deter illegal Channel crossings by migrants.
It also warned of the risk of an “increased number of individuals absconding prior to detention”, leading to a “possible delay to first flight if insufficient numbers” – and suggested that the Ministry of Defence was preparing contingency aircraft to fly migrants to Rwanda if charter companies refused the work.
The disclosure will heighten concerns among the Conservative Right about potential weaknesses in the Government’s plan to start deportation flights to Rwanda with the help of a fresh bill introduced last month in an attempt to avoid further legal blocks. Tory MPs are gearing up for a battle over the bill when Parliament returns from its Christmas recess this week.
Amid public anger over illegal migration, a Public First poll conducted last month shows that 43 per cent of people planning to vote for the Conservatives at the next election would consider voting for a party led by Nigel Farage.
The flights to Rwanda have been grounded since June 2022, when the European Court of Human Rights (ECHR) issued at the eleventh-hour a late-night Rule 39 order, dubbed “pyjama injunctions”, blocking the first departure.
Last year, the Illegal Migration Act gave ministers the discretion to ignore future Rule 39 orders.
But the “star chamber” of Tory Brexiteers, who have analysed the Prime Minister’s latest Rwanda bill, proposed that, among other changes, the Bill should be revised to ensure Rule 39 injunctions must be ignored by ministers.
Their verdict came after Suella Braverman, the former home secretary sacked by Mr Sunak, told The Telegraph last month that Victoria Prentis, the Attorney General, “advised that to ignore a Rule 39 injunction would be a breach of international law, so therefore, as it stands, Rule 39s will block flights”.
The Home Office risk register seen by The Telegraph was drawn up in the autumn to analyse “critical risks that could impact the delivery of a first flight” under the Migration and Economic Development Partnership, which allows the UK to send migrants to Rwanda who would otherwise claim asylum in the UK.
A small handful of risks listed in the document were categorised as “high risk” including “imposition of R39 measures by ECtHR”. Under the heading “impact”, the document states of such a scenario: “Migrants bailed. Insufficient numbers left in detention”.
The document adds that mitigations against such a scenario include allowing “adequate time for training and quality decision making” as well as “counsel support for initial decisions and letters.”
Given that the current legislation only gives ministers the discretion to block Rule 39 injunctions, the imposition of such a court order would be likely to spark a major row within government and the Conservative Party, with Ms Prentis and other ministers opposing the use of the power on the basis of her view that it would amount to a breach of international law.
Mr Sunak has repeatedly pledged that he will not allow a foreign court to block the deportation flights - a statement he repeated in an interview with The Telegraph published at the weekend.
The document also warns of a “medium risk” that “demands of litigation / legal actions are greater than planned”, leading to “loss in court. Migrants bailed. Insufficient numbers left in detention”.
To mitigate such a risk it says the Home Office will “seek additional legal adviser capacity”. It describes as “low risk” the prospect that the airfield earmarked for the flights – believed to be Boscombe Down, near Salisbury, in Wiltshire – will not be ready in time for the first departures.
It also accounts for the “low risk” possibility that there will be “no charter operator interested in running initial flight to Rwanda”, suggesting that the Ministry of Defence will provide a 12-week contingency scheme in such a scenario.
It was reported at the weekend that documents prepared in March 2022 showed Mr Sunak had significant reservations about the Rwanda scheme initially devised during Boris Johnson’s time as prime minister, and that he wanted to limit the numbers of migrants being sent to the country in the first few years.
A Home Office spokesman said that, since the risk register was drawn up, the Safety of Rwanda Bill had clarified that ministers alone and “not a court” can decide whether the UK should comply with a Rule 39 measure.
He added: “The Government is committed to doing whatever is necessary to stop the boats and prevent people from risking their lives at the hands of vile people smuggling gangs.
“That’s why we have addressed the Supreme Court’s findings to get flights to Rwanda off the ground as soon as possible, a safe country that cares deeply about supporting refugees. The Prime Minister has been clear he would not let a foreign court block flights to Rwanda.”
