NCADC Campaigning Toolkit
A Rule 39 application is an attempt to get the European Court of Human Rights (ECtHR) to make a binding interim measure on your case under Rule 39 of the EctHR rules of court. A rule 39 measure is a temporary measure before a long-term decision is made. One of the interim measures the Court can put in place is the suspension of removal directions.
A successful application (stopping deportation from the UK) would have to show that you a real risk of serious, irreversible harm if the measure is not applied. For more information on this, see the EctHR’s website .
If you have been issued with removal directions or a deportation order, and you can argue that UKBA and the courts have not properly applied the European Convention of Human Rights (which the UK is obliged to do under international law), you can apply for Rule 39 to be applied.
The rule is designed to give emergency protection to allow your case to be reconsidered.
If a Rule 39 measure is in place and your case is to be reconsidered by UKBA or the UK courts, you must inform the ECtHR of this and what the outcome is.
If a Rule 39 measure is in place and your case is not being reconsidered in the UK, or it is unsuccessful, you can make a full application to the European Court of Human Rights (also called an Article 34 application).
Rule 39 applications are not expected to provide the same level of proof that a full/general application to the ECtHR must, because of the emergency nature of the applications. A Rule 39 application being successful does not mean your full case will be successful if heard at the Court. It is not pre-judging the full decision, it is a protective measure.
Rule 39 applications are normally granted under Articles 2 and 3 of the European Convention on Human Rights. Article 2 concerns the right to life, and Article 3 prohibits torture, inhuman and degrading treatment. A successful Rule 39 application will show that your deportation from the UK would put you at risk of death, torture, inhuman or degrading treatment. There have been successful Rule 39 applications on the basis of Article 8 of the Convention – that a deportation would breach a person’s family or private life in the UK – but these are rare. See Garden Court Chambers briefing.
Other articles of the Convention might be relevant to your case (such as freedom of expression, the right to liberty, the right to marriage), but you would have to show that there would be a breach of these rights that would lead to serious and irreversible harm.
Rule 39 applications can be made by the person at risk of deportation, and are designed so that that person does not necessarily need a solicitor. It is not easy to make an application correctly, however, and most applications are refused (because the application has not been done correctly or because the Court does not agree with your argument). It is therefore best if you can get a legal advisor to submit the application. A non-legal representative can also make the rule 39 application for you. This might be a family member, a friend, or a support group. If someone else is making the application, they should include written consent from you to do so.
If your whole family faces a risk of harm, your family members can apply together as a family, or individually. The Court then decides whether to decide on the applications together or individually.
You might make a Rule 39 application if:
ECtHR figures show that 84% of Rule 39 applications to the Court in 2010 were rejected because they were incorrect or ill-founded.
The Court has application information on the ECtHR website.
It is a useful resource, but not written very clearly, particularly if English is not your first language. The first questions ask if your case comes under the jurisdiction of the ECtHR. As the UK has signed the Convention, and it is the UK government taking the action against you, your case does come under ECtHR’s responsibility.
Another of the questions is ‘Does your application concern an act, decision or omission by a public official?’ Although this sounds complicated, the answer is Yes, because you are applying because of a decision made by a public official (UKBA), which concerns you directly (the next question). You are then asked if your application concerns the rights of the Convention (it lists these if you are not sure. See Human Rights Convention grounds above).
The most common reason for refusals of Rule 39 applications is that they are ‘ill-founded’: it is decided at first instance that it’s not appropriate for the Court to make a decision on the application. A large number were also rejected because there were still legal options available in the country from which the person applied. You must have tried all of the appeal routes in the UK that are open to you before making a Rule 39 application. You can apply for Rule 39 if you are unable to find a solicitor to take your case to the higher UK courts, but you would have to show very good evidence that you have tried everything you can within the UK court system. Applications were also rejected because they asked the European Court to overturn a decision by a domestic court. A Rule 39 application should just be asking for interim relief – for example, the suspension of removal directions – rather than for your whole case to be reheard. If your Rule 39 application is successful, UKBA, the UK Courts or the ECtHR will then reconsider your full case.
Although no specific form is needed to make a Rule 39 application, you can use the general application form which helps make sure you are meeting the court’s requirements. The form is available on the ECtHR’s website.
You should make a Rule 39 application as soon as you can – so ideally this will be straight after your final UK court refusal (normally the First-tier or Upper-tier Immigration Tribunal if you are not making an application to a higher court, or if applications to the higher courts have been unsuccessful). Always try to discuss this application with your legal advisor – they may agree to do the application for you.
The application cannot be made more than 6 months after the last decision of the UK court. If you are refused permission to judicially review your case or go to the Upper-tier Tribunal, you must make the Rule 39 application within 6 months.
As mentioned above, an application will be rejected if there are still legal options available in the UK. However, if deportation is set to happen very soon and the final UK court decision is due, you can still make a Rule 39 application. The ECtHR acknowledges that, because it takes time to consider Rule 39 applications (especially when there are a lot of documents), applications can be made without waiting for the final UK decision but you need to mark the date of that decision clearly, and write that the application is being made on the basis the final decision is negative. This could be needed, for example, if you have been refused permission for a judicial review but have applied for renewal. If it is likely that you would be deported before a decision on this is made, you can make a Rule 39 application.
Reasons why your deportation breaches the European Convention on Human Rights documents showing decisions made by the UK courts (any immigration tribunal judgments on your case and judgments on your case at any higher courts such as the High Court, Court of Appeal or Supreme Court) any other evidence that is relevant (this may be objective evidence showing the risk you would face if deported – particularly if this hasn’t been considered by the UK courts or you feel hasn’t been considered correctly) details of removal/deportation (date and time) place of detention (if detained) Home Office Reference number.
The ECtHR will respond to an initial request asking for further details and signed consent from the applicant for the Court to hear their request. They will set a deadline for the consent form to be sent back to them. If you haven’t done so already, try to enclose any previous court decisions and any evidence you have supporting your case.
The ECtHR will also give your case a reference, typically ‘[Family name] v UK’. Make sure you include this on all correspondence.
Once someone is detained for deportation, they may not have access to their documents or a fax machine. It would be a good idea to give formal written consent for someone you trust to negotiate with the Court on your behalf and to ensure they have copies of all your papers. This is because the deportation process works quickly, and the deadline the ECtHR will set for you to respond is often very short indeed.
There is no appeal against a refusal of a Rule 39 application. You can submit a new application if you have new evidence or there are new circumstances.
Submitting a Rule 39 application is not enough to prevent a deportation. But if you are granted a Rule 39 suspension of your deportation, any attempt to deport you while this is in place would be unlawful.
