Rwanda policy ruling: What happens now the Government has lost?

The five most senior members of the UK’s Supreme Court announced on Wednesday that it would be unlawful for the Government to deport migrants to Rwanda to claim asylum there.

Led by the president of the court, their job was to determine whether the Court of Appeal’s three judges were right to rule, by a two-to-one majority, that it was unlawful because Rwanda was not a safe country for asylum seekers.

The hearing was the culmination of an 18-month legal battle and was held to decide whether the Government could implement the proposals in its Illegal Migration Act to detain and deport anyone arriving illegally in the UK to a third country such as Rwanda or their home nation.

The plan was central to Rishi Sunak’s pledge to stop the boats as ministers saw the threat of deportation to Rwanda as a significant deterrent to migrants seeking to cross the Channel to build their lives in the UK.

How did the legal battle start?

Following a sharp increase in the number of people crossing the Channel, Boris Johnson, the then-prime minister, announced a plan in April 2022 to deport migrants arriving in small boats to Rwanda for their claims to be processed. He said this would act as a “very considerable deterrent”.

The first flight was scheduled for June 15 but was blocked by a single judge at the European Court of Human Rights who backed a claim by one of the seven passengers that he risked “irreversible harm” if he was deported to Rwanda.

Behind closed doors and at the eleventh hour, the judge issued what is known as a Rule 39 interim injunction blocking the deportation of the asylum seekers until such time as the legality of the policy was determined by the UK courts.

What is the Government’s justification for deportation?

Priti Patel, the then home secretary, argued in the High Court that the asylum seekers had entered the UK illegally, and that she was therefore justified to declare their claims inadmissible.

Under immigration rules, the Home Secretary can remove such an asylum seeker to any safe third country that agrees to accept the asylum claim. She maintained her decisions were made in accordance with the agreement that Rwanda would take asylum seekers from the UK.

The two High Court judges ruled that the Rwanda policy was, in principle, lawful but said the way in which the Home Secretary had implemented the policy in the claimants’ individual cases was procedurally flawed.

As a result, her decisions in those cases were quashed and remitted to her for reconsideration.

Why did the Court of Appeal rule against the Government?

The Court of Appeal only dealt with the challenges to the lawfulness of the Rwanda policy generally, rather than any individual asylum seekers’ cases.

The three judges ruled by a majority of two to one that deficiencies in the asylum system in Rwanda were such that there were substantial reasons to believe the policy carried a real risk of “refoulement”.

Refoulement is a legal term that describes the possibility migrants sent to Rwanda would be returned to their home countries – where they would face persecution or other inhumane treatment – when, in fact, they have a good claim for asylum. In that sense Rwanda was not a safe third country.

This meant that unless and until the deficiencies in Rwanda’s asylum processes were corrected, removal of asylum seekers to Rwanda would be unlawful and amount to a breach of Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment.

The Court of Appeal unanimously rejected the claimants’ other grounds of appeal. In particular, ministers took heart from the fact that it ruled that the principle of offshoring asylum claims to a third safe country was not a breach of the Refugee Convention.

What was the Supreme Court deciding?

The five judges in the Supreme Court were determining whether the High Court and the Court of Appeal applied the law correctly in coming to their decisions.

At a three-day hearing at the beginning of October, Sir James Eadie KC, the Government’s lawyer, sought to reassure that asylum seekers deported to the central African country would be safe.

He said Rwanda could be trusted to treat asylum seekers humanely as he outlined measures to ensure their safety including independent monitoring, quarterly reports on the status of every migrant deported to the country and two Home Office officials permanently based in Kigali to oversee the scheme.

Sir James indicated that the numbers would be “small” at the start to allow Rwanda to build capacity.

Lawyers for the individual asylum seekers argued that a series of aspirational assurances could not remedy the structural deficiencies as identified by the Court of Appeal which gave rise to a real risk that the migrants would suffer persecution and inhumane treatment, in breach of the ECHR.

What happens now the Government has lost?

Ministers are expected to put in place a new deal with Rwanda addressing the deficiencies in the Rwanda asylum system. It could be elevated into a new treaty, approved by Parliament, giving it a legal status that would bolster it against further legal challenges by asylum seekers.

The memorandum of understanding that Ms Patel signed with Rwanda in April 2022 was not approved by MPs before it was signed with Rwanda.

The new agreement is likely to include tighter criteria and guarantees to ensure that legitimate asylum seekers are not deported back to their home countries and extra provisions for legal oversight of migrants who wish to appeal any decision on their asylum claim in Kigali.

The new agreement would seek to address concerns raised by judges in the Court of Appeal hearing about the lack of mechanisms for migrants to lodge appeals and the absence of separation between the judiciary and the executive in Rwanda. Judges concluded that it was unclear what appeal rights asylum seekers would be granted.

There are also plans to send Home Office officials to train case workers in Rwanda to bolster their asylum system. This is designed to address concerns that were raised by the Court of Appeal judges over the lack of experience and resources of officials to process the complexity and magnitude of cases from the UK.

Another option would be emergency legislation to exclude illegal migrants from using the Human Rights Act to remain in Britain. This was proposed in a letter to Mr Sunak by Suella Braverman, the former home secretary, and Robert Jenrick, the Immigration Minister.

The Illegal Migration Act disapplied Section 3 of the Act and narrowed the grounds for migrants to challenge their deportation by requiring them to show they faced a risk of serious and irreversible harm. But the two ministers proposed going further as part of a back-up plan if the Government lost the Supreme Court case.

They proposed amending the Act with “notwithstanding” clauses that would direct British courts to ignore ECHR rulings in specific cases, such as when an illegal migrant requests to remain in the UK to preserve their right to a family life.

The Government will also come under pressure from as many as 60 Tory MPs to quit the ECHR, which they claim has been exploited by lawyers for asylum seekers to prevent the deportation of illegal migrants.

Mr Sunak is said to be instinctively against withdrawing from the ECHR, not least because of the international condemnation from allies including the US and France if the UK were to do so.

James Cleverly, the new Home Secretary, declared, when he was foreign secretary, that he was “not convinced” that leaving the ECHR was necessary to ensure the immigration system was robust, and that the UK had the clout to push for changes if needed.

“European countries which are not part of the ECHR is a small club. I am not convinced it is a club we want to be part of,” he said. “That is not suggesting that the interpretation of human rights by judges is something I think has worked well.”

It is thought Mr Sunak would prefer to push for international agreement on reforming the ECHR and Refugee Convention as countries such as Germany, Italy and Austria consider Rwanda-style schemes.