The Final Rwanda Ruling: The Final Analysis
History is full of examples of people waiting and persevering for a long time to achieve their ultimate ambition. Nelson Mandela spent 27 years in prison on Robben Island before he was able to dismantle apartheid in South Africa. It took Albert Einstein many years to develop his theories on relativity. Suffragists spent decades campaigning before women were granted the right to vote.
If Suella Braverman, the former Home Secretary, was telling the truth when she said her dream was to see refugees flown to Rwanda, she may be in for a similarly long wait for her dream to be realised, thanks to five justices of the UK Supreme Court.
On Wednesday 15 November 2023 at 10.00 am, the UK Supreme Court ruled that the UK and Rwanda Migration and Economic Development Partnership (also known as the Rwanda Asylum Scheme or the Rwanda Scheme) was unlawful. Upholding the decision of the Court of Appeal, the UK’s highest court unanimously held that there was a real risk that asylum seekers removed to the east African country would be sent on to their home countries without proper assessment of their claims. It is the culmination of a legal battle that began in June 2022.
Under the Rwanda scheme, asylum seekers who entered the UK unlawfully would have been removed to Rwanda, where their claims would have been processed under Rwandan asylum law. Successful claimants would have been granted asylum in Rwanda and would not have been allowed to return to the UK to seek asylum.
The initial legal challenge came from a group of migrants selected for removal to Rwanda under the scheme by the Home Office. You can read about the previous rulings in the High Court and the Court of Appeal in my previous blog posts on the rulings, which will be linked at the bottom of the page. To summarise them briefly, the High Court found the scheme to be lawful, and then the Court of Appeal found it to be unlawful.
Unlike the Court of Appeal ruling, the Supreme Court was unanimous in its decision. In his summary of the Supreme Court’s decision, Lord Reed, President of the Supreme Court, spelt out how the scheme would have worked, specifically that the scheme was not about processing asylum claims in Rwanda or deporting unsuccessful claimants there. Since the idea was for genuine refugees to be settled permanently in Rwanda, the question before the court was whether there were substantial grounds for believing that asylum claimants sent to Rwanda would be at real risk of ill-treatment as a consequence of refoulement (returning them to a country where they would be in probable danger of persecution).
This meant that, among other things, the state of Rwanda’s asylum system was put under examination. Perhaps the decisive evidence in this regard was that provided by the UN High Commissioner for Refugees (UNHCR), which provided a mountain of evidence that Rwanda’s asylum system would not be able to cope. Most noticeably, it pointed to Rwanda’s record of deporting refugees to active warzones, such as Afghanistan, Syria and Yemen, the lack of independence in the judicial process, and the low rate of granting asylum to people from countries with high numbers of genuine refugees.
It was also highlighted that Rwanda was already in breach of numerous international treaties due to its poor overall human rights record, and that when Rwanda had previously entered into a similar asylum deal with Israel, it had regularly breached the agreement by removing refugees to neighbouring African countries. The argument put forth by the UK government was that they had received assurances from the Rwandan government that they would not breach the deal or international law. It was the view of the Supreme Court that, based on the evidence of Rwanda’s non-compliance with international law and human rights, there were grounds for believing that asylum seekers sent to Rwanda would be at risk of ill-treatment due to refoulement, and therefore it is unlawful for anyone to be sent there by the UK.
In explaining the judgment, Lord Reed also made it clear that the unlawfulness of the scheme was based on international law, not just the European Convention on Human Rights (ECHR) but on several other legal obligations, including international treaties like the Refugee Convention and UK statute law, including the Human Rights Act but also other immigrations laws from the 1990s and 2000s. He explained that the principle of non-refoulement is enshrined in UK law through numerous laws and treaties, not just the ECHR.
In many ways, the decision is surprising. The Supreme Court generally defers to the government on matters of political policy, and its current president, Lord Reed, is particularly conservative in this regard (his predecessor as president, Baroness Hale, while hardly a radical, had a more assertive approach). For Lord Reed and the four other justices to unanimously go against the government on a policy matter is significant. It is also significant that only passing references were made to the ECHR, as it invalidates arguments that only the ECHR made the scheme unlawful.
The reaction of the UK government was to suggest they would find other avenues to make the scheme workable. Currently, the plan seems to be to negotiate a formal treaty with Rwanda to make the aforementioned assurances legally binding. The precedent for this is the treaty negotiated between the UK and Jordan to allow for the deportation of the radical cleric Abu Qatada from the UK. The issue with that is Rwanda’s record of noncompliance with treaty obligations means that the courts would be able to block removals, even with a treaty. It is hard to picture a treaty that rectifies the problems spelt out by the Supreme Court.
There has also been talk of the UK Parliament passing a law to designate Rwanda as a safe country. Technically, Parliament can pass this law, as it can pass a law on anything. The issue with this approach, however, was articulated by former Supreme Court judge Lord Sumption, who likened it to claiming that “black is white” and said “If the courts are told [by an Act of Parliament] that they’ve got to pretend that Rwanda is safe, whether it is or not, then that will work domestically, but it won’t work internationally. It will still be a breach of the government’s international law obligations. It will be a breach of the refugee treaty.” Lord Sumption also suggested that Parliament would likely vote against such a law if the government proposed it.
Some supporters of the scheme have advocated withdrawing from the ECHR. As has been mentioned, however, the ECHR was just one of many laws and treaties that made the scheme unlawful. To make it lawful, the UK government would need to withdraw from several UN treaties, such as the Refugee Convention, the UN Convention Against Torture and the International Covenant on Civil and Political Rights, as well as abolish not just the Human Rights Act but also domestic asylum legislation from 1993 and 2002.
Former Home Secretary Suella Braverman took an even more drastic approach and is advocating for a new law that would disapply all the relevant laws and treaties from immigration and asylum cases, and remove all rights of appeal for Home Office decisions to send people to Rwanda. Aside from being in breach of several international treaties and a suspension of due process and the rule of law, such a law would be even less likely to pass through Parliament, certainly not before the next UK general election.
There are two additional options. One would be to find another country safer than Rwanda and willing to enter an agreement with the UK on this. However, the number that meets both criteria is, to put it mildly, very low. Most countries willing to participate in such a scheme are unlikely to meet the Supreme Court’s criteria, while countries that do are likely reluctant to take a large number of refugees. It is probably possible to find a country willing to do a deal with the UK government if enough money is offered. The question then is whether the UK government is willing to pay, and whether the money is more than it would take to clear the backlog and settle refugees in the UK.
Another option is one hinted at by Lord Reed in his summary of the judgment, namely that the scheme is modified so that people are taken to Rwanda (or another country) to be housed while the Home Office processes their asylum claim, and if successful they are granted asylum in the UK. Given that many believed this is what the Rwanda scheme was, including the media, many Members of Parliament and the Prime Minister’s press office, such a scheme may be feasible politically.
What is indisputable, however, is that any of the above options are likely to cause controversy and take a long time to implement. By the time the UK government is in the position to implement anything, there may well have been a change of government, as a general election is expected to take place in the UK at some point between the spring of 2024 and January 2025. Keir Starmer, the leader of the opposition, had pledged to scrap the Rwanda scheme, regardless of how the Supreme Court ruled, if he became Prime Minister. Mr Starmer’s Labour Party currently enjoys a large lead in the opinion polls and is widely expected to come to power following the upcoming general election, meaning that Mr Starmer is likely to become the Prime Minister and, therefore, the Rwanda scheme would have been scrapped anyway.
For now, the chances of Rwanda being used to house the UK’s refugees are zero. The chances of an alternative arrangement of any kind being implemented in the next year are also effectively zero.