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Former Justice Secretary Doubts "Pyjama Injunction" Will Block Rwanda Deportations

A group of people thought to be migrants are brought in to Dover, Kent, by the Border Force following a small boat incident in the Channel, 23 April 2024 (Alamy)

4 min read

Former Justice Secretary Robert Buckland believes it is “very unlikely” that European courts could use an injunction again to stop asylum seekers being deported from the UK to Rwanda now that the revised legislation has passed.

The Safety of Rwanda Bill, legislation designed to allow Rishi Sunak’s plans to deport asylum seekers in to the East African country, passed into law this week following weeks of back-and-forth between the Houses of Commons and Lords.

Ultimately peers backed down on their demands for an independent committee to monitor the safety of Rwanda, and an exemption for people who have supported British armed forces abroad late on Monday night. Peers did not push the exemption amendment to further vote on Monday evening after Home Office minister Lord Sharpe of Epsom said that the government will not remove to Rwanda anybody who is found to have links to Afghan specialist units in a review.

Sunak said on Monday that he hoped deportation flights would be able to take off in the next 10 to 12 weeks, indicating that the first asylum seekers could be sent to Rwanda in the summer.

While Government has been concerned that deportations could still be subject to legal challenges, Buckland, who served as Justice Secretary for more than two years under Boris Johnson, told PoliticsHome podcast The Rundown that he would be “surprised” and “concerned” if a so-called “pyjama injunction” was granted again. 

In summer 2022, the first flight to Rwanda for asylum seekers was blocked in the final hours by a European Court of Human Rights Rule 39 injunction. 

These decisions are often referred to as “pyjama injunctions” as they can be issued late at night.

“The court has already reformed its procedures to to raise the threshold before which such an injunction can be granted,” Buckland explained.  

"I'd be very surprised and concerned if it was, frankly.” 

The legislation, which received Royal Assent on Thursday, states that only a ministers would have the right to decide whether or not to comply with such an order from the European Court. 

According to the Institute for Government, there are several different types of legal challenge that could be launched against the legislation, including a “constitutional challenge” to the plans as a whole, and a declaring the law incompatible with the Human Rights Act. 

The legislation does also allow for challenges based on a person’s individual circumstances, with the Secretary of State or an immigration officer able to decide whether Rwanda would be safe for that person. 

As well as the possibility of legal challenges to deportations, some have raised concerns about the impact that the passage of the bill could have on Britain’s standing on the world stage. 

Comments from French President Emmanuel Macron earlier this week indicated he was unhappy with the UK’s plans. In a speech on Thursday – in which he did not mention the Rwanda scheme directly – he said he did not believe in “model that some people want to put in place, which means that you go and look for a third country [...] and send our immigrants there”. He described such plans as “a betrayal” of values. 

Abdy Yeganeh, a former British diplomat for the Foreign Office and now policy director at non-profit organisation Independent Diplomat said the bill’s passage “definitely does have an impact” on the UK’s reputation. 

“UK Foreign Policy has always been based around the rules-based international system and that's always been the backbone of our foreign policy approach,” he told PoliticsHome. 

“I would say the Rwanda Bill and the internal turmoil that we've had in Westminster has had an impact on the UK's status internationally, it's quite evident.” 

He said he has heard from others in diplomatic circles that the “UK government's handling of refugees and migrants” means that “ it's very difficult for the UK to be really assertive in certain parts of the world.” 

"For example, the issue of Rohingya refugees, more refugees are having to flee to neighbouring countries and regions to seek refuge and the handling of their treatment is not great. Well, it's very difficult for the UK to tell them how to address the refugee crisis given how the UK is handling it when it comes to refugees and migrants in boats on our shores.

“It's difficult to take that kind of rules-based international system and apply it in a piecemeal fashion. I think that's where there's a tangible effect and I think it would be very difficult if there are any refugee migration crises elsewhere globally for the UK to play a very assertive constructive role on that.”

Additional reporting by Zoe Crowther 

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