In a “dramatic 11th-hour” move, the European Court of Human Rights (ECHR) granted urgent interim measures on June 14 in K.N. v. United Kingdom, staying the deportation of an Iraqi asylum-seeker. The ECHR declared that K.N. be allowed to remain in the United Kingdom until his legal challenge to the U.K.’s policy of sending asylum-seekers to Rwanda is reviewed by a British court. In response, the British government grounded the plane, granting K.N. temporary reprieve. This story, splashed across global headlines, drew worldwide attention to the United Kingdom’s new policy of migrant ‘offloading,’ representative of disturbing global trends among wealthy nations to curb the flow of asylum-seekers at their borders. It also inspired interest in the ECHR, presenting a cinematic picture of the Strasbourg court as an arbiter capable of stepping in at a moment’s notice. But the true picture is murkier: with the United Kingdom vowing to fight the policy and the review powers of international human rights law limited, the ultimate authority over immigration policies rests in domestic governments.
The United Kingdom recently enacted a new immigration policy, allowing certain asylum-seekers to be transferred to Rwanda. The two countries signed a memorandum of understanding (MOU) on April 14, 2022, through which asylum-seekers “whose claims [were] not being considered” by British authorities may be transferred to Rwanda. In Rwanda, their immigration claims would be adjudicated according to Rwandan and international law. The MOU does not guarantee asylum-seekers legal status in Rwanda—rather, Rwandan authorities will settle or remove those individuals after processing their claims. The Rwanda policy’s legal authority draws from the United Kingdom’s 2022 Nationality and Borders Act (“the Act”), which allows for asylum seekers to be “remov[ed] to a safe third country.”
Immigrants’ rights groups criticized the policy, calling “[u]nlawful, inhumane, [and] unworkable.” Scholars and NGOs further argued that Home Secretary Priti Patel had cut procedural corners in setting out the agreement and failed to show that Rwanda qualified as a “safe third country” under the Act. International organizations, including the UN Refugee Agency, also raised doubts that Rwanda is compliant with international human rights norms in its treatment of refugees.
On June 8, a coalition of civil society groups representing asylum-seekers challenged the legality of the policy in the High Court (a U.K. court of first instance). The coalition argued that the proposed deportations unlawfully penalized asylum seekers for their irregular entry into the United Kingdom and that Patel failed to disclose criteria behind the selection of migrants to be sent to Rwanda.
On June 10, four days before the first deportation was set to take place, High Court Justice Swift “granted the claimants permission to apply for judicial review” of the policy and set a hearing date in July, but refused to grant interim relief to stay their removal. He found that the “material public interest” in allowing the government to enact policy outweighed the potential problems suffered by the claimants if removed to Rwanda, even were the policy to be overturned.
In whirlwind legal proceedings over the next four days, the claimants appealed from the High Court to the Court of Appeal and Supreme Court, failing at each stage to gain an injunction. Through Lord Reed, the Supreme Court explained that Patel had given assurances that, were the policy to be overturned, British governments would “take all reasonable steps” to facilitate asylum-seekers’ return to the United Kingdom, and as such there was little risk of irreparable harm.
K.N. also pursued a legal challenge in the ECHR, the international court that oversees compliance with the European Convention on Human Rights. On the same day that the Supreme Court ruled against him, the ECHR granted an “urgent interim measure,” ruling that he “should not be removed until . . . three weeks following the delivery of the final domestic decision in the ongoing judicial review process.” The ECHR found that there were “serious triable issues” presented in the MOU, including whether the decision to treat Rwanda as a safe third country was based on sufficient evidence. The ECHR determined that, were K.N. removed to Rwanda before the policy’s legality was determined, he may face “treatment contrary to [his] Convention rights” and a “real risk of irreversible harm” due to the “lack of any legally enforceable mechanism for [his] return.”
The U.K.-Rwanda partnership is representative of a move among wealthy nations to limit the flow of refugees and asylum-seekers into their countries at all costs. States have begun programs of offshore processing, of deterrence, and now of foisting asylum-seekers onto third countries. The role of international human rights courts as a venue of final appeal, spotlighted so dramatically by the ECHR’s injunction in this case, is perhaps alluring to the outside observer (or, conversely, frustrating to a government’s immigration tsar). Ultimately, though, the power of human rights instruments is limited by the consent of nation-states, and with the United Kingdom seemingly set on a hardline immigration stance, K.N.’s reprieve may prove short-lived.
The Rwanda policy culminates a steady ramping-up of aggression in British politics towards refugees. Prime Minister Boris Johnson’s administration has taken repeated harsh stances against immigration, with Patel leading the charge. The Act, which established the deportation policy’s legal basis, also created a scheme of “differential treatment” among refugees: allowing the government to deny refugees arriving without prior authorization certain legal protections. In a speech unveiling the Rwanda policy, Prime Minister Johnson lauded his administration’s efforts to “tak[e] back control of illegal immigration,” repeatedly referring to “gangs” and “vile people smugglers.” He accused these groups of “abusing” the British system and announced that “from today,” those who arrived in the United Kingdom “illegally” would be subject to removal to Rwanda. Prime Minister Johnson, seemingly blind to irony, extolled the Rwandan partnership as an “innovative approach — driven [by] our shared humanitarian impulse.”
This new British policy epitomizes what scholars have dubbed “migration externalization.” In this model, countries seek to deter or minimize the number asylum-seekers who arrive at their borders through deals with third countries. Australia has infamously set up processing centers—heavily criticized for their harsh conditions and lack of due process— on Pacific Islands nations, deflecting all arrivals to them. Countries may also use ‘softer’ tools, like donations or aid deals, to persuade would-be refugees to stay home. The European Union has provided funds to Northern African countries like Libya and Egypt to strengthen local coast guards and prevent migrant flows across the Mediterranean, and has made deals with Turkey to restrict the flow of Syrian refugees into Europe. The United States’ “Remain in Mexico” policy, enacted under President Trump, seeks to ensure that asylum-seekers stay south of the U.S.-Mexico border while their claims are processed. Australia has even advertised its strict immigration policies abroad, erecting billboards in war-torn Sri Lanka warning would-be migrants that “boats that go to Australia without permission [will be] returned to the deep sea.”
The United Kingdom’s Rwanda policy goes yet further. The United Kingdom is not simply seeking to deter migrants, or to provide a processing point beyond its borders; it is divesting itself completely of responsibility for the migrants it sends to Rwanda. Those asylum-seekers will lose all hope of being resettled in the United Kingdom, of rejoining family members or connections that they may have taken arduous journeys to meet. If their claims are deemed credible in Rwanda under local asylum statutes, they will begin new lives with legal status, but in Rwanda. Scholars have warned that this type of policy could signify a “next step in a broader policy push that some high-income countries are taking to externalize migration management.”
As draconian and dystopian as the Rwanda policy may be, the ECHR’s dramatic intervention imbues the story with, seemingly, some glimmer of hope. If only momentarily, the profile of international human rights law was dramatically raised on the global stage. Explainers of the court proliferated, with news sites clamoring to tell their readership what the ECHR is and how it had managed to trump the United Kingdom’s highest court. Reactions were mixed, with rights groups championing the court’s influence in protecting migrants while conservative commentators lamented the “assault on British democracy.” The ECHR has protected the rights of migrants in other contexts, but none with so dramatic an effect.
But the ability of international human rights law and specialized courts to stop policies of migrant externalization is unclear. The ECHR’s decision was not a revocation of Britain’s policy, merely a stay of deportation until the policy is reviewed ina Britishcourt. Moreover, the ECHR has not signaled whether it would override the Rwanda policy if it were to be deemed legal under U.K. law. And even if it did, the United Kingdom could just leave the ECHR—as Prime Minister Johnson suggested was under “constant review” in the wake of K.N.
Outside Europe, the picture is even gloomier. Other international human rights bodies have not been as successful in challenging the domestic immigration schemes of powerful nations. The Inter-American Court of Human Rights (IACHR), for example, has conducted visits to the U.S.-Mexico border and has condemned the MPP policy—but to no avail. Indeed, the United States has never ratified the IACHR’s underlying Convention, and is bound as a participant in the Court only by its earlier ratification of the much vaguer American Declaration on the Rights of Man. United Nations envoys have warned about the dangers posed to migrants by the externalization of asylum-seekers, but United Nations organs like the Human Rights Committee are hamstrung by political alliances and act mainly on a “name and shame” model of aspirational enforcement. Policies are also shielded from international review by other forms of inaction—a submission to the International Criminal Court to investigate Australia’s migrant policy for potential crimes against humanity was rejected in 2020.
The ECHR’s decisive move garnered excitement and evocative headlines, but the chance of a movie-perfect ending is limited. With the British government vowing to push back, the fate of K.N. and other asylum-seekers rests largely in the hands of their domestic government. In July, a British court will deliver its own judgment on the Rwanda policy’s validity under U.K. law. What its decision will be, and whether asylum-seekers’ allies will mount successful challenges to the policy in the ECHR, is yet to be seen. K.N. and his fellow asylum-seekers may remain in the United Kingdom for the time being, but they are far from finding the peace and finality for which they have already journeyed so far.
The views expressed in this article are those of the author in her personal capacity and should not be understood as representing those of any United States government entity.