One of the most noticeable aspects of modern football is the ubiquity of adverts and sponsors. Advertising boards surround football pitches, and the shirts of the footballers themselves are emblazoned with the logo of their sponsor. In fact, the sponsor’s logo is often the most distinctive part of a football shirt other than its colour. With that in mind, aficionados of the London-based team Arsenal will be able to confirm that for a few years now, their team’s shirts have borne the slogan ‘Visit Rwanda’, as part of the club’s sponsorship deal with that country’s government to promote tourism in Rwanda.
In April 2022, the UK government signed a memorandum of understanding with the Rwandan government which would allow the UK government to remove any asylum seeker who had entered the UK unlawfully to be removed to Rwanda. It was initially reported that these people would remain in Rwanda while their asylum application was processed by the Home Office, but upon closer inspection, it became clear that some of these asylum seekers could be settled permanently in Rwanda under this scheme.
On 19 December 2022, the High Court issued its judgement in the legal challenge brought by the eight people who were due to be the first people removed to Rwanda under the scheme. The judgement held, among other things, that the UK government’s agreement with the Rwandan government did not violate either the Human Rights Act 1998 or the UN Refugee Convention 1951, and therefore the removal scheme was lawful. The UK government has welcomed the ruling, while human rights groups and asylum charities have criticised it.
So what is the effect of this judgement? Despite claiming victory, the High Court’s ruling may not be quite the boost for the scheme that the UK government would have wanted. While officially legal (for now), this does not necessarily mean that any of it will actually go ahead.
While many of the criticisms of the judgement have pointed out that something being legal does not make it right, the more important caveat to remember is that just because something is a law does not mean that it has any effect whatsoever. Every now and then, an act of parliament will formally repeal a law or laws that are obsolete to get them officially off the statute books. The Criminal Law Act 1967, among other things, abolished a number of obsolete offences. These included the offence of being “a common scold or common night walker”, the offence of challenging someone to a fight and the offence of praemunire, which is attempting to appeal to a foreign country on legal matters. It was not until 2010 that slavery was officially criminalised in the UK. The offence of being “an incorrigible rogue”, while scrapped as a crime by the Ministry of Justice in 2013, is still technically on the statute books. At the time of writing, it is technically illegal in the UK to carry a plank of wood along a pavement, gamble in a library or beat a rug on a London street. Furthermore, it is technically the legal responsibility of taxi drivers to ask their passengers if they have the plague or smallpox. The point of this is that while it is technically the law, you should not expect to be arrested because you placed a bet via a gambling app while in the library.
What relevance does any of this have to the Rwanda scheme or the High Court ruling? The link in all of this is that these legal concepts do not exist in isolation; they have to be considered in their totality, taking into account context and every aspect of the ruling and not just the headline. In the case of this judgement, the devil is very much in the detail.
The full judgement is 139 pages long, so you would be forgiven for not wishing to read the entirety of it. There is, however, also a summary of the ruling that was released for the benefit of the media, which sums up the bullet points of the ruling in four paragraphs. In the first paragraph, it sets out the basis for the claim. In the second, it clarifies that it is not the job of the courts to take a side on the public debate around the Rwanda scheme but rather to ensure existing laws are followed and enforced correctly. The third gives the court’s ruling on the lawfulness of the scheme, saying that it is lawful for the UK government to relocate asylum seekers to Rwanda and that it is consistent with the Refugee Convention and the Human Rights Act. The fourth and final paragraph, however, also states that the Home Secretary must assess the individual circumstances of everyone who the Home Office wants to relocate to Rwanda to ensure there is no reason why each individual should not be taken to Rwanda and that in this case, the Home Secretary had made no such assessment.
Let us unpack this. Firstly, we must remember that the court was not making a decision on whether Rwanda is a safe country for refugees to be taken to, but rather whether the procedures for assessing its safety had been properly followed. The court’s role is not to make political decisions on public policy.
This is why a legal challenge to the policy itself was always going to be difficult because without being able to prove a serious flaw in the decision-making process, the court is unlikely to intervene. For example, if the MOU between the UK and Rwandan governments had said, “We have chosen Rwanda for this partnership because our two criteria for choosing a country was that the country had to be in South America and have a large coastline, and Rwanda absolutely fits that bill” (for context, Rwanda is a land-locked country in Africa). Absent that kind of illogical decision-making (or something similar), it is close to impossible to get the courts to overturn a government policy. The other reason that challenging the lawfulness of a policy is hard is that the government can turn around and adapt its policies to make them lawful. This is why it is not a surprise that the court ruled that the scheme itself was lawful.
The important caveat, however, is the part of the judgement found in the aforementioned paragraph four: the individual decisions for each person slated to be removed to Rwanda were all held to be unlawful. In the final paragraph of the full judgement, each individual decision was quashed, with the Home Office deemed to have made 19 specific decisions that were legally flawed. In other words, every single decision in regard to the claimants. So, while the government may well have won on the lawfulness of the policy, it was held to have acted unlawfully in every instance.
The most interesting part of the judgement, however, was the requirement that the government would have to carefully examine the case of each person it wants to send to Rwanda, to ensure they are no violations of their human rights. Otherwise, the removal will be overturned on appeal. This means that the individual circumstances and human rights of everyone will need to be closely assessed, which could take months or even years. This adds a further layer of bureaucracy to the Home Office, meaning that the already enormous backlog of pending immigration and asylum cases is likely to grow as civil servants are required to spend even more time making human rights assessments for each application, giving themselves less time to process other applications. While the policy itself is lawful, it will be expensive and time-consuming to implement.
Given that the initial hope for the Rwanda scheme was that it would help reduce the backlog and stop the arrival of people in the UK via small boats crossing the channel from France, this judgement means that the scheme will likely be a very expensive way of doing the opposite.
Does it mean that the scheme is therefore doomed? It is hard to predict. Maybe the UK government will succeed in getting a small number of people removed to Rwanda. But the human rights of each person they list for removal to Rwanda will have to be considered at great lengths to be lawful, and then have to survive a series of court battles.
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