A three-day hearing will start on October 9 at the Supreme Court, which will determine whether the government’s policy on shipping asylum seekers to Rwanda is lawful, although a ruling is not expected until November.
Ministers are trying to overturn a Court of Appeal ruling in June that concluded the policy did not comply with Britain’s obligations under the ECHR. The government is confident of winning the case, opening the way for flights to take off early next year.
However, ministers fear that the European Court of Human Rights in Strasbourg, the ultimate arbiter of the convention, will allow legal challenges that could delay or suspend flights.
In June last year a judge granted an interim injunction, known as a Rule 39 order, that grounded the first scheduled flight to Rwanda at the eleventh hour.
On Tuesday in Washington, Braverman, the home secretary, raised the prospect of Britain leaving the convention if it continued to hold up the Rwanda policy. “I reject that notion that a country cannot be expected to respect human rights if it is not signed up to an international human rights organisation,” she said. “As if the UK doesn’t have a proud history of human rights dating back to Magna Carta, and the ECHR is all that is holding us back from becoming Russia. America, Canada, New Zealand and Japan seem to manage just fine.
“None of this is particularly novel, nor should it be particularly controversial. As home secretary, Theresa May called for Britain to leave the ECHR.”
Downing Street confirmed that it had approved her speech, saying it “went through the normal process” of being signed off. The Times understands that No 10 allowed Braverman to float the prospect of Britain leaving the convention. It is being seen as a strategy to put pressure on the Strasbourg court not to block Rwanda flights.
A Tory MP close to Braverman said: “It’s a warning shot, making it clear that if the court stands in our way again, we are prepared to have that battle and leave altogether.”
Danny Kruger, a Conservative MP, said: “What it may well take — if courts in the UK or Strasbourg use the ECHR to stop us removing illegal migrants — is leaving the ECHR. The government is getting into the right place and it’s important they hold their ground.”
Braverman’s comments have riled centrist Conservatives. Damian Green, chairman of the One Nation caucus of Tory MPs and a former cabinet minister, said: “It would be very damaging for Britain’s reputation around the world to leave the ECHR, and in any case the legal argument at the moment is before the UK courts, which have not yet given a final verdict, so this kind of talk is very premature.”
A Home Office source said: “The home secretary is clear that we can stop the boats within the current framework.”
Sunak has refused to rule out withdrawing from the convention but has said he believes that the Rwanda policy complies with the convention. The prime minister has attempted to persuade the European court to reform its Rule 39 procedures and has submitted proposals that would increase accountability over its decision-making process as well as the right for national governments to make their case for a policy.
A third of Sunak’s cabinet is believed to support withdrawing from the convention if migrant deportation flights continue to be blocked. The New Conservatives, a group of Tories elected in 2019, are planning to ensure that the convention plays a central role in the party’s manifesto at the next election.
However, a poll last month by the think tank More in Common indicated that advocating withdrawal would cost the Conservatives votes at the next election, with less than a quarter of the public in favour. It suggested that pledging to leave the ECHR at the election would lose twice as many votes for the Tories as they would gain from the policy.”