New Rwanda treaty on deportations in the works if judges rule against Government

A new Rwanda treaty to pave the way for deportations of asylum seekers from the UK is set to be drawn up if the Supreme Court rules on Wednesday that the scheme is unlawful.

Ministers are expected to order a rewrite of the agreement with Rwanda if the five Supreme Court judges rule that deficiencies in the country’s asylum system make it unsafe to send asylum seekers there.

It is one of a series of contingency measures being considered if the judges uphold a Court of Appeal ruling that the policy was unlawful because of the risk asylum seekers sent to Rwanda would be returned to their own country and face persecution in breach of their human rights.

Other options include excluding illegal migrants from using the Human Rights Act to avoid removal, enacting legislation to deem Rwanda a safe country and expanding the list of “safe” countries. Rishi Sunak will also face calls by up to 60 Tory backbench MPs for the UK to quit the European Convention on Human Rights (ECHR).

But James Cleverly, the new Home Secretary, is expected to argue the Government’s “stop the boats” measures are already working, with a third fewer Channel crossings so far this year owing to fast-track deportations deterring Albanians, increased patrols on northern French beaches and police crackdowns on people smuggling gangs.

Flights to Rwanda have been suspended since last June when the European Court of Human Rights (ECHR) in Strasbourg issued a “rule 39” injunction blocking the deportation of asylum seekers until the legality of the policy was determined by the UK courts.

If the Supreme Court backs the Rwanda policy, ministers plan for the first flights to Rwanda in the New Year. They have taken heart from moves by Strasbourg to make it harder to issue rule 39 injunctions in the event that lawyers for the asylum seekers try to block the flights again by appealing the Supreme Court decision to the ECHR.

The political stakes for Mr Sunak have been raised by the former home secretary Suella Braverman’s claims on Tuesday that his failure to back her demands for even tougher migrant laws could cost him the case, “wasting” a year and putting the Government “back at square one”.

The Supreme Court verdict is expected at around 10am on Wednesday, two hours before Mr Sunak faces Prime Minister’s Questions in the Commons. This will be followed by a statement to MPs by Mr Cleverly spelling out the Government’s response to the judgement.

The Rwanda plan is central to the Prime Minister’s illegal migration act, which gives ministers powers to detain anyone who arrives in the UK illegally and deport them to a “safe” third country or their homelands.

The appeal court found by a two-to-one majority that Rwanda’s asylum system was “inadequate”, meaning there were “substantial” reasons for believing that asylum seekers sent to Rwanda would be wrongly returned to their home countries to face persecution or torture - in breach of article 3 of the ECHR.

If the Supreme Court upholds that verdict, ministers are expected to put in place a new deal with Rwanda addressing the deficiencies in the country’s asylum system, with tighter criteria and guarantees that ensure it reaches the same standards as it would have done in the UK.

This 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.

As part of the Government’s Supreme Court case which said that the Rwanda system could already be trusted, its lawyers pointed to measures including independent monitoring, quarterly reports on the status of every deported migrant and two Home Office officials permanently based in Kigali to oversee the scheme.

Legal experts have suggested the Government should go further and put British caseworkers in Rwanda to support its asylum system.

In a letter to Mr Sunak, Mrs Braverman and Immigration Minister Robert Jenrick proposed excluding illegal immigrants from using the Human Rights Act to remain in Britain.

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 plan B 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 family life. It was not clear last night if this will be fully adopted by Mr Sunak.

David Jones, a former Cabinet minister, said: “I would very much hope there would be recognition at last that there is no option but to legislate [to disapply the Act to illegal migration] and I hope that the Government would press on quickly with that.”

Downing Street has maintained that the Government can meet its pledge to stop the boats within its international obligations but will face a clamour from some 50 to 60 backbenchers to quit the ECHR if the Supreme Court rejects its case.

Responding to Mrs Braverman’s letter on Wednesday, Sir Edward Leigh said: “You cannot detain people who land on our shores if you remain in the refugee convention and the ECHR.

“Sooner or later we’re going to have to bite this bullet and leave these two conventions. This decision has got to be made very soon and I suspect this is what Suella has been pushing for for the last year.”

In an interview with the Telegraph on Monday, Mr Jenrick refused to rule out the possibility of quitting the ECHR. When asked if the UK would leave, he said: “I’ve been clear that we have to do whatever it takes.”

He said for the first time that the Government’s aim was to “stop the boats in their entirety” by the next election. But he admitted that it would not achieve this goal without the prospect of Rwanda flights to deter Channel crossings by migrants.

Mr Sunak is, however, said to be “allergic” to the idea of quitting the ECHR, amid concerns that it could damage UK trade and diplomatic relations with key partners in Europe and the US.

When Foreign Secretary, Mr Cleverly said 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.

Ministers are looking to expand the list of “safe” countries to which migrants who arrive in the UK illegally could be deported.

Adding nations to the “safe” country list alongside EU countries Switzerland and Albania would make it easier to reject asylum claims and return them to their homelands.

India and Georgia were added to the list last week, while ministers are now considering including Turkish, Egyptian and Iraqi Kurdish migrants.

Turkey accounted for 2,121 Channel migrants in the eight months to the end of August, while Egyptians numbered 679. Iraq accounted for 1,774 migrant Channel crossings up to the end of August, but it would be more complex to place the country on the “safe” list because of continuing sectarian violence.

Powers in the Illegal Migration Act allow ministers to ignore ECHR injunctions. Ministers obtained these powers in anticipation that they could be used again if the Government wins its Supreme Court case.

Flouting them would be seen as the “nuclear” option, which is why Mr Sunak and his ministers have been lobbying the Strasbourg court to reform its procedures. They want to avoid the repeat of the eleventh-hour injunction taken by a single unnamed judge behind closed doors that grounded the first Rwanda flights in June 2022.

On Monday, the Strasbourg court signalled a change in approach by stating that they would only be used in “exceptional circumstances” where there was “imminent risk of irreparable harm.” The judges who make the decisions will also be named for the first time.

Tim Loughton, a former minister and member of the Home Affairs Committee, said the court appeared to have been spooked by the growing numbers of European countries turning to Rwanda-style schemes and a potential threat of the UK quitting the ECHR.

“If other countries are supporting so-called ‘illegal’ Rwanda-style schemes like ours then there is pressure for proper wholescale reform of the court,” he said.