17 November 2023

Defeat in the Supreme Court

Where Next for UK Asylum Policy?

On 15 November 2023, the UK Supreme Court (UKSC) unanimously declared the government’s policy of removing some asylum seekers to Rwanda to process their claims  unlawful. Like the Court of Appeal, it found substantial grounds for believing that asylum seekers would face a real risk of ill-treatment because of insufficient guarantees against refoulement. This post explores the origin and significance of the UKSC judgment and the legal and policy implications of the UK government’s immediate response to it.

‘Stop the Boats’ and the Rwanda Policy

The Rwanda policy, announced in April 2022, is a five-year asylum partnership arrangement known as the Migration and Economic Development Partnership (MEDP). It was recorded in a Memorandum of Understanding and two ‘notes verbales’ between the UK and Rwanda, rendering it a political agreement, not a legally-binding treaty. Due to assurances given in the MEDP, former Home Secretary Priti Patel deemed Rwanda a safe third country to which asylum seekers could be removed. The MEDP provides for the relocation to Rwanda of individuals who arrived in the UK through an illegal and dangerous route on or after 1 January 2022 and who do not have a right to stay. Those to be removed would be identified through a screening process, with exemptions only for unaccompanied children, families with children, Rwandan asylum seekers and EU citizens.

According to the government, the policy is designed to deter irregular migrants who arguably fail to claim asylum in countries they pass through on the way to the UK, such as France. The political priority accorded to stopping irregular migration across the Channel – which reached a record 45,756 people in 2022 – is encapsulated in Rishi Sunak’s high-profile pledge to ‘stop the boats’. In this respect, the Rwanda scheme has also been viewed as pivotal for implementing the Illegal Migration Act, which became law on 20 July 2023. The Act gives the Home Secretary the power to detain – and the duty to make arrangements to remove – individuals who come to the UK illegally, either to their home country or a safe third country. However, the Act has largely not been brought into force as Rwanda is currently the only country with which the UK has an agreement for the transfer of asylum seekers. Arguably, however, the agreement is of more political than practical significance: while the arrangement is uncapped, the government has acknowledged that Rwanda has initial capacity to receive just 200 people annually. The policy’s likely impact in deterring irregular migration has also been questioned: the most senior civil servant in the Home Office stated that evidence of a deterrent effect is ‘highly uncertain’.

The first flight to Rwanda in June 2022 was stopped after an urgent injunction issued by the European Court of Human Rights that barred removals to Rwanda until after UK litigation determining the legality of the policy had been concluded. In the 17 months leading up to the UKSC judgment, wider political instability has seen three prime ministers, and four Home Secretaries in the UK. The latest, James Cleverly, was appointed three days before the UKSC judgment, following the sacking of Suella Braverman on 13 November.

The Judgment

Only a month after the hearings, a unanimous UKSC found the policy of sending asylum seekers to Rwanda for processing unlawful. The judgment held that non-refoulement is a principle embedded in several international covenants and treaties by which the UK is bound, including the UN Refugee Convention, the International Covenant on Civil and Political Rights 1966, the UN Convention against Torture, and the European Convention on Human Rights (ECHR). The Court also listed the Acts of Parliament that enshrine the principle in the UK’s own national law. Non-refoulement, it concluded, is a ‘core principle of international law, to which the United Kingdom government has repeatedly committed itself [para 29].’

The Court emphasised that the case did not hinge solely on the ECHR or the Human Rights Act 1998, which gives effect to most Convention rights in UK law.  Withdrawal from the ECHR – called for by, among others, Suella Braverman while she was Home Secretary – would not remove the obligation to respect this cardinal principle.

The judgment was also notable for the ‘considerable weight’ it accorded to evidence presented by the UN refugee agency (UNHCR) about the ‘serious and systemic defects in Rwanda’s institutions and procedures for processing asylum claims [para 50].’ UNHCR’s evidence shows a 100% rejection rate by Rwandan authorities from 2020-22 for nationals of Afghanistan and Syria, from which asylum seekers removed from the UK may well emanate. By contrast, Home Office data shows that asylum claims in the UK were granted in 99% of cases from Syria and 98% of cases from Afghanistan. Further, the UN had documented 100 cases of refoulement, including after the agreement with the UK had been reached [para 89]. While accepting that Rwandan assurances had been made ‘in good faith’ [paras 101-2], the Court pointed to an agreement Rwanda had reached with Israel between 2013-18: despite explicitly committing to non-refoulement in this agreement, there was evidence that Rwanda had surreptitiously moved asylum-seekers from Israel to Uganda where they were at risk of being refouled [para 96.]

In addition, the Court noted that Rwandan judges may not be independent of political influence and lawyers may not be provided to asylum seekers. Despite a right of appeal to the Rwandan High Court in asylum cases, this had never happened in practice [para 105].

The Supreme Court also adduced evidence of Rwanda’s poor human rights record, and highlighted that UK police had to warn Rwandan nationals living in the UK of threats to their life from the Rwandan government.

In summary, the central issue upon which the UKSC determined that Rwanda was not safe was doubt about the country’s

practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required [para 102].

The Government’s Response

The UKSC, like the Court of Appeal and the High Court, did not find the policy of removing asylum-seekers to a third country for their claims to be processed unlawful, only that Rwanda is not currently a safe country to do so.

Following the ruling, Prime Minister Rishi Sunak therefore announced plans to make a treaty with Rwanda, and, in parallel, introduce emergency legislation designating Rwanda a safe country.

There is one precedent for the UK resolving a potential violation of rights through a treaty. Former Home Secretary Theresa May concluded a treaty with Jordan guaranteeing fair trial rights for deported radical cleric, Abu Qatada. However, in this case potentially hundreds of individuals would be annually subject to what the UKSC called the ‘serious and systemic defects’ in Rwanda’s asylum system. The sheer magnitude of those affected renders this case substantially different to the degree that it would be inapplicable. Moreover, UNHCR’s concerns ‘relate not to the text of [Rwandan] legislation but to how the system operates in practice’ – and would equally apply to a treaty unless it addressed the substance of those concerns. The UKSC ventured that:

The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring.

The Home Secretary, James Cleverly, indicated that the treaty would require that asylum seekers sent to Rwanda could not be sent to a country other than the UK. Sunak later said that the treaty would ensure that ‘those who are relocated from the UK to Rwanda will be protected against removal from Rwanda’. This has led to speculation that asylum-seekers who fail to meet the test for refugee status under Rwandan law (or, for example, are a nationality with 100% rejection rate) could be returned to the UK. This would seemingly undermine Rwanda’s incentive to give, and asylum seekers to seek, refugee status in Rwanda. Nor is it legally feasible given that Article 30 of the Illegal Migration Act 2023 bans the return of asylum seekers removed to a third country to the UK.

Uncertainty over the content of the treaty is perhaps why Sunak also plans to introduce ‘emergency legislation’ (or fast-tracked legislation) designating Rwanda a safe country. He has emphasised that the law would stop ‘systemic challenges in [..] domestic courts’ and ‘not allow a foreign court to block’ removals. This suggests the law would explicitly disapply relevant human rights protections in the ECHR and other international obligations related to non-refoulement.

Will ‘Plan B’ work?

Treaties are negotiated by the government, with only a limited role for Parliament in their ratification. A treaty must be laid before Parliament for 21 sitting days. The Lords cannot block or delay a treaty. The House of Commons can – but has not done so in recent times.

The passage of fast-tracked legislation could be much trickier. Legislation can be passed quickly, even within a day, but only if both Houses of Parliament agree on its necessity. Although the government’s current majority in the Commons could see such a bill passed quickly, ministers do not control the House of Lords’ timetable. Against the weight of evidence provided and a unanimous Supreme Court judgment, the Lords will likely closely scrutinise the question of whether Rwanda is, in fact, safe. Numerous prominent legal figures have opined that, as Philippe Sands put it, ‘To override such a ruling – to change the facts – would be extraordinary’.

The lack of an electoral mandate for the Rwanda policy and the disapplication of international norms and human rights would only embolden the Lords’ potential resistance. Where bills raise fundamental constitutional questions, the upper house has indicated that ‘parliamentary scrutiny … should not be rushed unless there are justifiable reasons for fast-tracking them’. The Lords could therefore feasibly delay the passage of the emergency legislation up until the next UK general election, expected within a year.

Facts Cannot be Legislated Away

In passing a law, the Prime Minister hopes to immunise the Rwanda policy from legal challenge, given the doctrine of parliamentary sovereignty. This prevents the Supreme Court and the European Court of Human Rights from striking down an Act of Parliament.

However, declaring Rwanda safe and introducing ouster clauses would not end the UK’s obligations under international law. The law would only have domestic effect, not change the facts on the ground. The European Court of Human Rights could still find that the law violated the ECHR if it considered Rwanda not to be a safe country, and so issue interim measures (‘rule 39 orders’ or urgent injunctions) to stop any flights, as it did with the first flight to Rwanda.

An Uncertain Outlook

The alternative is to pursue  agreements with other countries, as the UK government is reportedly doing. The Illegal Migration Act lists 56 other countries (8 for men only) that are considered safe. Many of them are facing their own migration challenges, and some of those in Europe have been looking closely at the UK policy of removal as a potential model to follow. For example, on 6 November 2023, the Italian and Albanian Prime Ministers announced an agreement to relocate asylum seekers rescued at sea by Italian vessels to Albania. The two centres would host up to 3,000 people and be staffed by Italian officials operating under Italian and EU legislation. This differs to the UK-Rwanda agreement, whereby asylum seekers would be processed by Rwandan officials under Rwandan law.

The future of the UK government’s immigration policy remains profoundly unclear – not least because countries with which it might strike deals may look at the Rwanda furore and wish to avoid the same level of scrutiny and exposure. Labour has said it will scrap the Rwanda scheme and negotiate a quota-based deal with the EU instead. The clock is ticking towards a general election that polling widely suggests L