The highly controversial European court ruling that stopped the UK’s first flight deporting asylum seekers to Rwanda came so late that four asylum seekers who were sat down and ready for take-off had to be pulled off the plane at the last minute.
i understands that restraints were not required, but the last minute judgment would have been a huge relief for the asylum seekers who were fighting their deportation in the courts.
It was also a deflating, if not entirely unexpected, moment for Priti Patel and officials who worked around the clock to try to face down legal challenges in recent days.
Their hopes had been raised after the policy came through the British courts without an injunction to stop the first flight, only for the European Court on Human Rights (ECHR) to effectively overrule them.
At 5pm, before anyone had heard from Strasbourg, Home Office sources were expecting the flight would take off by 10pm.
But by 7pm, the ECHR granted an initial injunction and jittery insiders began warning there could be further intervention that could see all the asylum seekers pulled off the plane.
Ten minutes before scheduled take-off at 9.30pm, it became clear that the European court could “scupper” the entire process and leave the flight grounded.
One said, if European courts did this, it would be like “Gina Miller on steroids” referring to the British woman who successfully challenged the government in court over its failure to get approval from Parliament before exiting the European Union.
Some Home Office officials had gone home for the evening when they got the call saying more people were being pulled off the flight and it might not be taking off.
They were receiving the latest legal advice from lawyers in real time and were frantically trying to establish what was going on, as well as ensuring anyone on the flight that had been granted an injunction was taken off in time.
One who has worked closely on the policy since its launch said they had always known it was not a certainty until the flight had departed.
“We have always said we would expect there to be legal challenges at the last minute. We are always aware there could be something around the corner, it’s always something that we do expect,” one said.
“It is not anything new to be completely honest […] we know they do this to frustrate us.”
There were also “no surprises” on Tuesday night for officials who regularly deal with deportations and bids to stop them.
It means the Home Secretary and her staff were prepared for this, and will only get a brief respite following an exhausting few days defending her policy through the courts.
Ms Patel is already planning another flight, in the hope that it can take off in “weeks”.
She plans to issue more removal notices than there are seats in the plane, in the hope that it can take off with more than the handful who were left on Tuesday night’s flight following the court battles.
Home Office and Whitehall sources however rejected suggestions that officials are worried about the ongoing costs of the policy and are making sure Ms Patel is aware of the expense at all stages.
It comes after the Home Secretary was forced to overrule her officils concerns around the value for money of the policy with a ministerial direction in April.
“In terms of the cost we have always been of the opinion that it is in the long term value for money,” a Home Office source said.
The more immediate concern for Ms Patel is working out what the ECHR ruling means for future flights.
A Whitehall source said there appeared to be “nothing” in the judgment “that says you can’t continue” with deportation flights.
“They might not do this in everyone’s cases, it wasn’t a blanket injunction, it was individual,” they said.
But Ms Patel, who was in regular contact with Boris Johnson during the legal wranglings of recent days, is scrambling to find out the exact ramifications of the “opaque” judgment, which has left officials aghast after they were simply emailed a vague two-page summary by the ECHR at the same time as journalists received a press release.
As of Wednesday night, the Home Office still did not know the identity of the “duty judge” on out-of-hours cover who handed down the bombshell ruling without any oral hearing and without the Government seeing the details of the claim on behalf of an Iraqi national who was fighting deportation.
Within the Government, there is an acknowledgement that the public and Tory MPs are “angry and asking questions” after a BBC News alert was “piped into people’s phones saying the flight can go, then an unidentified judge in Europe says it can’t”.
But one Conservative source admitted that in the short-term it is a “good row” for the party because “Labour have no remotely coherent position” and internal polling shows anyone-but-Tory voters “hate it” but “people who might vote for us like it”.
No 10 deputy chief of staff David Canzini, an ally of the uncompromising Australian political operative Sir Lynton Crosby, is also “a fan” of the policy and as it so-called wedge issue that could help the Tories retain Red Wall Brexit-voting seats it won from Labour.
But the source acknowledged that while having the argument was “okay for a bit”, the public “won’t tolerate foreign judges and courts blocking it in the long run”.
They were also cheered by the comments of Mr Justice Swift, who on Friday told the High Court that one of the judicial review claims that could scupper the Rwanda plan permanently next month was not “conspicuously strong”.
It suggests Ms Patel could yet win the war over her policy, despite losing the battle.
