The Rights Removal Bill, Rwanda & Interim Measures

Clause 24 of the Government’s Rights Removal Bill tells UK courts not to take account of any interim measure issued by the European Court of Human Rights (ECtHR) when determining whether someone’s human rights are at risk.  

Interim measures are very rare, but they’ve been in the news lately because they were used in a recent case brought by people seeking asylum when the UK Government attempted to send them to Rwanda. We’ve put together a short guide to what interim measures are, how they work and how they have been applied in the UK. 

According to Rule 39 of the Rules of the Court: 

“[The Court] may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.” 

This means the ECtHR can order countries to take (or not take) certain steps while a legal case is ongoing. The decision to order interim measures is not based on the likelihood of a person winning their case but on whether there is an “imminent risk of irreparable damage” if certain steps are taken or not taken in the meantime. They’re designed to make sure everyone has the right to a fair trial before any irreversible steps are taken. 

They can be applied for a fixed time or until further notice. They can be lifted at any time by the ECtHR (usually if a case is stopped). 

While interim measures can be used in “highly exceptional cases” relating to the right to respect for private and family life (Article 8), they’re typically only used where there is a threat to life (Article 2) or a risk of torture and inhuman or degrading treatment (Article 3).  

The Rights Removal Bill say it is “affirmed” (aka confirmed) that interim measures are not part of domestic law and do not affect Parliament’s ability to make laws. This is not a change to the law – it is merely restating how the law already works. Interim measures are not written into the European Convention on Human Rights or the Human Rights Act – they’re written in the Rules of Court. When the UK signed up to the European Convention on Human Rights, it agreed to follow these rules to make sure the ECtHR is able to function as intended.  

The ECtHR clarified that countries signed up to the Convention have to comply with interim measures in the cases of Mamatkulov and Askarov v Turkey and Paladi v the Republic of Moldova. It said that if countries ignored interim measures, it would make it harder for the ECtHR to properly examine people’s cases and could stop them from accessing justice. This means that although interim measures are not part of UK domestic law, they are part of the international law that the UK has signed up to and should comply with.  

In exceptional cases, where it is not possible for a country to follow an interim measure, it is up to that country to show “there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation”. 

In 2008, two Iraqi men were being detained by British forces in Iraq, accused of killing two British soldiers. The Iraqi High Tribunal (IHT) wanted the British forces to transfer the men to their custody to be tried – but there was a possibility the men would be sentenced to death if tried in the IHT. The men applied to UK courts to stop them being transferred to the IHT on the basis that the “real risk of…being condemned to death by hanging” was a breach of their Article 3 right to be free from inhuman and degrading treatment. However, the UK courts said that because the British forces were working in Iraqi territory, they didn’t have the power to refuse to transfer them. The men applied to the ECtHR for interim measures preventing them from being transferred until further notice. The ECtHR granted these measures and told the United Kingdom to ensure they were not transferred – but the United Kingdom ignored this order and transferred the men the next day.
The United Kingdom said it “exceptionally, could not comply with the measure” but it “remains the Government policy to comply with [interim measures]…where it is able to”. The United Kingdom said it was not able to comply with the interim measures in this case because it didn’t have the legal power to refuse to transfer the men. An interim measures order doesn’t have to be followed if it would mean the country in question would have to break the law. However, the ECtHR said the United Kingdom did not take reasonable steps to explain the situation to the Iraqi authorities and reach an agreement or get an assurance that the men would not be subjected to the death penalty. The ECtHR therefore found that by ignoring the interim measures, the United Kingdom had caused the men “mental suffering” because of their fear of being executed, which breached their right to be free from inhuman and degrading treatment.

The Iraqi court later decided that there was insufficient evidence to try the men of the killings and so they were released. The UK’s Iraq Historic Allegations Team also later investigated allegations of mistreatment of the men by British soldiers while they were being detained. 

If a case is heard by a lower Chamber, parties can request that it is referred to the Grand Chamber for fresh consideration. Decisions of the Grand Chamber are final and there is no way to appeal against them. Similarly, there is no way to appeal a decision not to apply Rule 39. 

Interim measures are rare. In 2021, just 5 requests for interim measures against the UK were granted whereas 9 were refused and 37 were found to be “outside the scope” of Rule 39 (meaning that they weren’t cases where Rule 39 would apply, so the ECtHR didn't consider them).