Joelle Grogan analyses the UK Supreme Court decision that the UK government’s policy to send asylum seekers to Rwanda to have their claims processed, and to then stay if successful, is unlawful. She unpacks the Court’s reasoning and considers what’s next for government plans for removing asylum-seekers to third countries.
On 15 November 2023, the UK Supreme Court (UKSC) unanimously upheld the Court of Appeal’s judgment and found that the government’s ‘Rwanda Policy’ is unlawful.
The central question before the Court was whether Rwanda is a safe country for asylum-seekers to be sent to have their claim processed and, if their claim were successful, to stay. Both sides agreed on the legal rule that refugees must not be returned to a country if their life or freedom would be threatened in that country (e.g. non-refoulement), nor can they be sent to a third country where there is a ‘substantial risk’ of their being returned to a country where they would face such a threat.
The Court underlined that non-refoulement is part of several international covenants and treaties to which the UK is bound, including the UN Refugee Convention, the International Covenant on Civil and Political Rights 1966 and the European Convention on Human Rights. The Court also listed the Acts of Parliament that embed the principle in the UK’s own national law.
The Court concluded that non-refoulement is ‘core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law.’
In deciding that Rwanda was not safe, and asylum-seekers would be at risk of refoulement, the Supreme Court relied heavily on the UN’s evidence on the ground in Rwanda. The evidence pointed to Rwanda’s poor human rights record, and highlighted the fact that UK police had to warn Rwandan nationals living in the UK of threats to their life from the Rwandan government.
The systemic issues in the Rwandan legal system were particularly concerning to the Court. Judges may not be independent of political influence, lawyers may not be provided, and despite a right of appeal – there were none on record.
The Court also underlined concerns that some asylum-seekers would not be fairly processed: citizens of certain warzone countries had a 100% rejection rate in Rwanda, while the same nationalities were nearly always recognised as refugees in the UK (for example, Afghanistan has 98%, and Syria 99% approval rate for asylum claims).
The UKSC was also not convinced by the Rwandan government’s assurances, even if they were ‘in good faith’. The UN documented 100 cases of refoulement, including after the agreement with the UK had been reached. The Court cast doubt on Rwanda’s commitment to its own international obligations, pointing to a similar agreement it had reached with Israel between 2013-2018.
Despite explicitly committing to non-refoulement in the Israeli agreement, there was evidence that Rwanda had surreptitiously moved asylum-seekers from Israel to a neighbouring state where they were then at risk of being refouled.
On the weight of evidence that the country was not safe, the Court held that it would be unlawful for the UK to send people to Rwanda.
The least surprising part of the judgment was that retained EU law on asylum seekers no longer applies in the UK following changes to the law after Brexit. EU law requires that an asylum-seeker can only be sent to a third country if it is safe, and they have a connection to the country. UK (and international law) only requires that it is safe.
It should be underlined that the judgment does not make the policy of removing asylum-seekers to a third country where their claims are processed unlawful, only that Rwanda is not currently a safe country to do so.
While the court emphasised that they considered only the legal question – is Rwanda a safe third country – they implicitly tackled the ongoing political debate about whether the UK should leave the ECHR spearheaded by former Home Secretary, Suella Braverman.
By emphasising that the ECHR is not the only source of protection against removal to an unsafe country, the Court implicitly indicated that leaving the ECHR won’t end the obligations from other international treaties (and the UK’s own domestic law) to guarantee asylum-seekers wouldn’t be sent back to a country where it is unsafe for them.
What, then, is next? The new Home Secretary, James Cleverly announced that the current agreement with Rwanda would be upgraded to a new treaty addressing concerns. This treaty would ‘make clear that those sent there cannot be sent to another country than the UK’ leading to some suggestion that that asylum-seekers rejected by Rwanda would return to the UK. Under current UK law, however, it is not possible for those sent to a third country to return to the UK. The terms of a treaty, changes required, and whether Rwanda would accept them, have yet to be set out.
The Prime Minister also responded to the judgment stating he would introduce emergency legislation declaring Rwanda is a safe country, and that the policy would not be stopped by the European Court of Human Rights (ECtHR). The Supreme Court (or any court, including the ECtHR) cannot strike down an Act of Parliament.
The challenge for the government is whether such an act would become law before the next general election. Even if the government’s current Commons majority passed the bill quickly, the government does not control the Lords’ timetable who are likely to closely scrutinise or even delay the passing of such an act.
An act declaring that Rwanda is safe would also not end the UK’s obligations under international law. The UK and Strasbourg courts could still find that such a law violated human rights. However, this would not change the legal effect of the law. The real consequence would be damage to the UK’s strong human rights record, and reputation for upholding its international obligations.
The only short-term alternative would be for the UK to reach agreement with a country that is safe (as likely it is already trying to do). The Illegal Migration Act lists 56 other countries (8 for men only) that are considered safe – however, as of yet, the UK has only managed to reach an agreement with one: Rwanda. Most countries on the list are facing their own migration challenges, and are not likely to accept claims and refugees from the UK. For the moment – no Rwanda, no removals.
By Dr Joelle Grogan, Senior Researcher, UK in a Changing Europe.