The United Kingdom is once again threatening to withdraw from the European Convention on Human Rights. The Conservative Party will soon elect a new leader there. Are a candidate’s claims that the convention prevents the deportation of migrants true?
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Britain’s right-wing Conservative opposition party is about to elect its new leader, and a seemingly familiar argument has resurfaced: should the UK leave Europe or stay in Europe?
This time the debate has nothing to do with the EU. Instead, Tory hopeful Robert Jenrick has vowed to immediately withdraw from the European Convention on Human Rights (ECHR) if he ever becomes prime minister.
According to Jenrick, the convention is an obstacle to immigration control because it allows migrants to go to the European Court of Human Rights (ECtHR) to challenge their deportation from the UK.
“As long as we remain members of the ECHR, we cannot end illegal migration or remove dangerous foreign criminals from our country,” Jenrick wrote on X.
Kemi Badenoch, Jenrick’s rival in the party leadership race, has also said she would be willing to leave the ECHR if necessary to curb irregular immigration to Britain.
These comments have worried moderates in the Conservative Party. Would withdrawing from the ECHR and its parent organization, the Council of Europe, actually make a difference?
Other international agreements protect asylum seekers
There is some truth to the claim that the ECtHR is preventing the UK from deporting migrants. However, it is not entirely true for two reasons.
The first reason: The Court can only intervene in very specific circumstances. As a bulwark of human rights, the ECtHR can prevent deportations if the asylum seeker in question is at real risk of being tortured or degraded in the country to which he or she is to be deported, in breach of Article Three of the ECHR.
“The first reason is that the European Court of Human Rights can only block deportations in very specific circumstances, namely when someone is actually at risk of torture, inhuman or degrading treatment in a third country,” explained Ilias Trispiotis, professor of human rights at the University of Leeds, EuroVerify.
“The second and perhaps more important reason why this claim is false is that the legal principle of non-refoulement is not based only on the ECHR. It is a core principle of international law,” he added.
The principle of non-refoulement prohibits countries from deporting people based on their ethnicity, religion or nationality to a country where their life or freedom may be threatened. It is a key element of the ECHR and other international agreements such as the 1951 Geneva Convention on Refugees, the International Covenant on Civil and Political Rights and the UN Convention against Torture.
“Even if the UK decided to withdraw from the ECHR, state authorities would not be able to return migrants to third countries due to other international laws, treaties and obligations outside the ECHR,” Trispiotis said.
The same would apply if the UK decided to leave the ECHR and introduce a British Charter of Fundamental Rights, an idea championed by the previous Conservative government.
“On this particular point it wouldn’t have made much difference,” said Gavin Phillipson, professor of public law and human rights at the University of Bristol. “And whatever bill is presented, it only relates to one’s own situation.
“If you really wanted to have complete freedom internationally, you would have to withdraw not only from the ECHR, but also from the Geneva Refugee Convention and the UN Convention against Torture, which I cannot imagine,” said Phillipson.
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It is also worth noting that the ECHR imposes only some restrictions on the treatment of refugees and asylum seekers. As Phillipson pointed out, the convention has no impact on how countries deal with legal migration. Because the majority of migration takes place legally.
“This is all happening on the basis of government policy regarding visas and work opportunities and has nothing whatsoever to do with the European Convention on Human Rights,” he explained.
Brexit in a new guise
The vast majority of European countries are members of the Council of Europe and therefore signatories to the ECHR. This means that it is not just the UK that is sometimes faced with ECtHR rulings on the deportation of people it would like to get rid of.
Russia and Belarus are the only countries that are not members of the Council of Europe. Russia was expelled from the Council of Europe in March over its invasion of Ukraine. Vatican City has observer status while Kosovo is in the final stages of the accession process.
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Nevertheless, the issue of ECHR membership appears to be particularly sensitive in the UK, probably because Euroscepticism among Tories voters and politicians continues to persist eight years after the Brexit referendum, even as the Council of Europe and the ECtHR remain in power In a broader sense, have nothing to do with the EU. According to surveys, there is growing “Brexit regret” among British voters.
“This is a typical example of propaganda directed against the Court,” Dimitrios Giannopoulos, Professor in the Department of Law at Goldsmiths, University of London, told EuroVerify. “The demonization of the Court reflects the Eurosceptic movement. It is a glaring example that we are reliving the Brexit psychodrama.”
“We left the EU, but according to many who took part in the referendum, we should have left the European Court of Human Rights at the same time, because the European Court of Human Rights in Strasbourg has long been attacked as the EU’s proxy,” Giannopoulos added added. “We left the EU and now the European Court of Human Rights is being attacked in a very direct way.”
ECHR is a major topic of conversation in the UK because of the collapse of the previous Conservative Tory government’s plans to deport asylum seekers to Rwanda. Apparently they were thwarted by the ECtHR. The new Labor government scrapped the Rwanda plan, calling it a “gimmick”.
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Go or stay?
Experts agree that the benefits of remaining in the ECHR far outweigh the benefits of leaving. “It would be a devastating blow to the UK’s reputation in Europe and beyond as a country that accepts basic human rights,” Phillipson said. “It would also cause major difficulties with the EU over our Brexit agreement, which implicitly requires us to continue to comply with the ECHR.”
Phillipson added that this would cause problems with the Good Friday Agreement between the UK and Ireland, which ended most of the violence during the Troubles in Northern Ireland and whose text explicitly enshrines the ECHR.
Some experts recall that the United Kingdom is a founding member of the Council of Europe and has always been at the center of the ECHR, rather than seeing it as an adversarial foreign body that exercises its will over sovereign states.
“The United Kingdom has played a prominent role throughout history in the conception and subsequent shaping of the European Convention on Human Rights,” said Giannopoulos. “It all started with Churchill and the other European partners.”
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The UK legal system works harmoniously with the ECtHR, not against it, Giannopoulos said. The British courts are in “constant dialogue” with Strasbourg, with the Supreme Court in particular “reputable and robust enough” to raise its voice and contradict European judgments that, in its eyes, make no sense.
“The right-wing narrative diverts attention from ensuring the smooth coexistence of the two,” Giannopoulos said. Ultimately, the ECtHR has had an extremely positive impact on human rights protection in the UK, Trispiotis added.
“Thanks to ECtHR rulings, police cannot stop and search people without justification; the state cannot keep innocent people’s DNA indefinitely; important press freedoms are protected; people can serve in the British Army regardless of their sexual orientation; corporal punishment in schools is unlawful,” Trispiotis said.
“These are just some of the many examples of how the ECHR strengthens the protection of human rights in the UK, particularly for some of the most vulnerable,” Trispiotis said, “withdrawing from the ECHR would be a historic mistake.”
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