What Does The Supreme Court’s Decision On The Rwanda Policy Mean For Asylum Seekers?
On 15th November 2023, the UK’s highest court issued its highly anticipated judgement on whether deporting asylum seekers to Rwanda is lawful or not. Agreeing with a previous decision by the Court of Appeal, the Supreme Court confirmed that sending asylum seekers to Rwanda is indeed unlawful. Unfortunately, rather than completely ‘killing off’ the Rwanda policy, the Supreme Court’s decision may create more uncertainty, at least in the short term, as the government decide what they will do next. In recent years, the government has persisted in using the term “illegal migration”. The reality, however, is that under international law, everyone has the right to claim asylum in any country that has signed the 1951 United Nations Convention on Refugees, and to remain until their claim has been assessed.
In this article, we will discuss what the Supreme Court’s decision on the Rwanda policy will mean for asylum seekers and what the government might now do in response
What is the Home Office’s Rwanda policy?
Back in April 2022, Prime Minister Boris Johnson made a speech on illegal migration to the UK stating that “anyone entering the UK illegally – as well as those who have arrived illegally since January 1st – may now be relocated to Rwanda”. The aim of taking this approach was to remove the incentive for asylum seekers to come to the UK via, “illegally”. Priti Patel, the Home Secretary at the time, entered into a Memorandum of Understanding (MOU) with the Rwandan government to send “tens of thousands” of, what she referred to as “irregular” asylum seekers to Rwanda. The UK government paid the Rwandan government £140m and agreed to pay £12,000 for each asylum seeker it sends. The Rwandan government, for its part, would then provide accommodation to each asylum seeker and process their claim for asylum.
In June 2022, a plane carrying asylum seekers intended for Kigali was legally blocked from taking after the European Court of Human Rights intervened at the last minute. Then in December 2022, the High Court ruled the Rwanda plan lawful and that it did not breach the UN Convention on Refugees. However, in June 2023, the Court of Appeal ruled that the policy meant that asylum seekers risked being sent back to their country of origin and may face inhumane treatment.
What was the Supreme Court asked to decide?
The Supreme Court was asked to consider an appeal by the Home Office against the Court of Appeal’s decision in June 2023. Specifically, the issues before the court were as follows:
“This appeal is concerned with the Secretary of State’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda”.
Specifically, the Supreme Court considered whether the Rwanda scheme abides by the principle of non-refoulement and whether Rwanda is a “safe third country”.
What did the Supreme Court decide?
The Supreme Court unanimously ruled that sending asylum seekers arriving in the UK to Rwanda to be processed was unlawful because it would expose them to a risk of ill-treatment if they were returned to their country of origin. Specifically, the conclusion of the judgement states:
“We conclude that the Court of Appeal was correct to reverse the decision of the Divisional Court, and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. It was accordingly correct to hold that the Secretary of State’s policy is unlawful. The Secretary of State’s appeal is therefore dismissed”.
The Supreme Court made the point that the Rwanda policy goes against the fundamental principle of non-refoulment which applies under international human rights law, i.e. a person arriving in the UK should be returned to a country where they would face torture, cruel, inhumane, or degrading treatment or punishment and other irreparable harm. Refoulement is strictly prohibited under the European Convention on Human Rights (ECHR), the UN Refugee Convention, the UN Convention against Torture, and the UN International Covenant on Civil and Political Rights.
What will happen now?
Following the Supreme Court’s decision, the Prime Minister boldly stated his intention to seek an emergency bill with the intention of making Rwanda a safe country, to prevent further legal challenges. This has been widely criticised. Regarding Rishi Sunak’s plan, Lord Sumption stated, “It is not unusual for governments to promote legislation to change the law after an unfavourable judgment in the courts, but I have never heard of them trying to change the facts by law…For as long as black isn’t white, the business of passing acts of Parliament to say it is is profoundly discreditable”. Lord Sumption has also stated that it is unlikely that a Bill aimed at making Rwanda a safe country would make its way through the House of Lords, and hence, into law. As he explains, “It would be constitutionally a completely extraordinary thing to do, to effectively overrule a decision on the facts, on the evidence, by the highest court in the land”.
The government is now in a real quandary. Even if they do somehow manage to get a bill passed to this effect, this does not change the cold-hearted fact that they would be breaching international law by sending asylum seekers to Rwanda.
Since the release of the official immigration figures showing net immigration is higher than ever (a direct result of the ending of free movement), it appears that legal immigration is now under fire. What is needed is an open and honest dialogue between the government and the public about the importance of immigration and the value it brings to our country, society, and economy. Given the government may now have exhausted all of its real options for stopping the small boats, it may now well shift its focus to other areas of policy and forget that the Rwanda policy ever existed. Only time will tell how the government will play their next hand.
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