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by Margaret Taylor
15 November 2023
UK Government's Rwanda plan is unlawful, Supreme Court rules

The Supreme Court was considering a series of cases that started out in the lower courts | Alamy

UK Government's Rwanda plan is unlawful, Supreme Court rules

The Supreme Court has ruled that the UK Government’s plan to send asylum seekers to Rwanda for processing is unlawful, effectively putting a block on its flagship immigration policy.

In a unanimous decision handed down this morning, five justices rejected the government’s case on the basis that “there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement [forceable return] to their country of origin if they were removed to Rwanda”.

The government, which announced the plan in April, had intended to run a five-year pilot in which people arriving by small boat to seek asylum in the UK would instead be diverted to Rwanda to claim asylum there. Succesful applicants would remain in Rwanda and would have no right to come to the UK.

The first flight scheduled to take asylum seekers to Rwanda was due to leave the UK in June, but it was prevented from leaving due to a last-minute intervention from the European Court of Human Rights.

Further departures were put on hold while a series of court challenges were heard, culminating in the Supreme Court case.

In their leading judgment, Supreme Court president Lord Reed and justice Lord Lloyd-Jones said they had focused primarily on refoulment – the forceable return of asylum seekers to a country where they are likely to be persecuted – and retained EU law.

On the former, they noted that “non-refoulement is a core principle of international law” and that asylum seekers are “protected against refoulement by several international treaties ratified by the UK”.

In terms of EU law, the court dismissed an argument put forward on behalf of an Iraqi asylum seeker that the Rwanda policy is unlawful because it is incompatible with retained EU law.

Lords Reed and Lloyd-Jones said that while EU law states that asylum seekers can only be removed to a third country if they have a connection to it, that legislation was not retained after Brexit and so no longer has effect here.

While that gave a victory to the government on that matter, the overall policy has nevertheless been ruled unlawful due to the refoulment grounds.

Legal expert Adam Wagner, a barrister at Doughty Street Chambers, said the judgment means it would be “unlawful in the present circumstances for anyone to be sent to Rwanda” but that “the UK could try and fix the defects in the Rwandan asylum system”.

He added that that would be “a big ask” and said “there is no realistic chance that this could happen before the next election because any new treaty would be subject to legal challenges, which would probably go through the same process up to the Supreme Court”.

“So it's over for this policy,” he said.

Writing on social media platform X, Prime Minister Rishi Sunak said the government remained committed to the plan and was working on a new treaty to enable it to send asylum seekers to Rwanda.

"My commitment to stopping the boats is unwavering," he wrote. "The Government has been working on a new treaty with Rwanda, and we’ll finalise that in light of today’s judgment.

"If necessary, I am prepared to revisit our domestic legal frameworks."

SNP home affairs spokesperson Alison Thewliss welcomed the court's decision, saying the policy “should never have been put on the table” because “it is morally wrong and inhumane”.

"Under the Tories, there are rising numbers of people awaiting asylum decisions, safe and legal routes have been closed down, and many Home Office staff are being left without the resources they need,” she said.

"It is crucial that Scotland becomes an independent country in order to create our own migration system which protects refugees and meets the needs of Scotland."

The Rwanda plan was first unveiled in April last year, with then Prime Minister Boris Johnson saying the £120m pilot would focus on single men arriving on boats or lorries and would "save countless lives" from human trafficking.

At the time the SNP said the proposal was “toxic and inhumane” while human rights organisation Amnesty International described it as “shockingly ill-conceived”.

Then Home Secretary Priti Patel defended the plan, saying it would "set a new international standard" and accusing critics of failing to "offer their own solutions" to stop the high number of migrants crossing the English Channel in small boats. More than 45,700 people came to the UK in small boats in 2022, the highest number on record.

Suella Braverman, who replaced Patel as home secretary when Liz Truss became prime minister last September, was a keen supporter of the Rwanda plan.

Though she stood down as home secretary in October 2022 over claims she had broken the ministerial code, Braverman was reinstated several days later when Sunak replaced Truss as prime minister.

After being sacked by Sunak earlier this week Braverman wrote him a furious letter in which she accused him of failing to deliver on a range of promises including the Rwanda policy.

"I was clear from day one that if you did not wish to leave the ECHR [European Conventiomn on Human Rights], the way to securely and swiftly deliver our Rwanda partnership would be to block off the ECHR, the HRA [Human Rights Act] and any other obligations which inhibit our ability to remove those with no right to be in the UK. Our deal expressly referenced ‘notwithstanding clauses’ to that effect," she wrote. 

"Your rejection of this path was not merely a betrayal of our agreement, but a betrayal of your promise to the nation that you would do “whatever it takes” to stop the boats."

 

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