The Supreme Court’s ruling that the Rwanda scheme is unlawful punctures the government’s hopes to deport refugees before the next election. But it will press on with the policy.
The judgment makes fascinating reading. The court said its task was to determine whether there was a danger that those sent to Rwanda would be sent on to places where they risked persecution. This is called “refoulement” and, as the court makes clear, is illegal under both international and domestic law. This last point is important. The court is at pains to underline that leaving the European Convention on Human Rights (ECHR) would not immediately allow the flights to Rwanda because other treaties also forbid refoulement. In other words, the problem isn’t just the ECHR.
The government would need to leave, for instance, the UN Convention against Torture and the UN Covenant on Civil and Political Rights. Even then, refoulement goes against customary international law, which exists outside actual treaties or laws. On top of that, it is banned in domestic law by the Asylum and Immigration Appeals Act 1993 and the Human Rights Act 1998. This is not the judges vs parliament, but the judges ensuring the government follows the laws that parliament created.
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That leaves the government with two options: leave the international agreements and change domestic law (though even this is far-fetched given refoulement is illegal under customary law), or convince the courts there is no risk of refoulement. The new Home Secretary James Cleverly sounded reluctant to take the first option on the media round this morning (“I don’t believe [leaving the ECHR] will be necessary”). Instead, he said: “We will go through the points that their lordships set out, and we will address them – each and every one, we will address them – to make sure we are in conformity with international law and domestic law.”
The government’s plan is to make refoulement impossible through a treaty with Rwanda. Treaties have legal standing, agreements do not. The new treaty would prohibit Rwanda from returning migrants to their country of origin. But even that might not suffice. The court has doubts about the African country’s commitment to international obligations in the first place. Why would this treaty be different? The second prong of the government’s plan is to pass a law that simply declares Rwanda to be safe – irrespective of the evidence collated by the Supreme Court. Such a move, in the words of the former Supreme Court judge Jonathan Sumption, would be “constitutionally really quite extraordinary”. Even then, how would the government avoid legal challenges before the next election?
The damage, therefore, to the government is serious. Keir Starmer goaded Sunak at PMQs yesterday (15 November) with the words: “Does he want to apologise to the country for… wasting his entire time in office?” That’s too far. But one can’t escape the conclusion that a central pillar of Sunak’s premiership has become redundant.
This piece first appeared in the Morning Call newsletter; receive it every morning by subscribing on Substack here.
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