UK Supreme Court Declares Rwanda Asylum Policy Unlawful: Legal Ramifications Explored
Introduction:
Last week, the UK Supreme Court held a unanimous ruling to find the government Rwanda asylum policy unlawful. The policy was part of PM Rishi Sunak’s efforts to address irregular immigration and control cross-channel migration. The UK had already made an initial payment of £120 million to Rwanda as part of this agreement. This article explores the legal ramifications of the ruling from an apolitical perspective.
The judgment:
In its judgment, the scope of the appeal was on the UK’s policy to send certain asylum seekers to Rwanda for their claims to be decided by Rwanda authorities, rather than in the UK.[1] Lord Robert Reed, the President of the Supreme Court, highlighted that asylum seekers sent to Rwanda would face a real risk of being repatriated to their countries of origin without proper consideration of their claims.
The central legal principle in governance of this issue is the non-refoulement principle, which has its roots deeply seeded in various international treaties, including the Refugee Convention. The non-refoulement principle applies that refugees are not returned to countries where their life or freedom would be threatened.[2] The judgement also notes that the Memorandum of Understanding (MOU) with Rwanda included procedural guarantees and protection from refoulement, although it did not create rights justiciable in court.[3]
The Supreme Court raised substantial concerns about the risk of refoulement under the Rwanda policy, questioning Rwanda's status as a safe third country for asylum seekers.This assessment was central to the ruling, as the policy's legality hinged on Rwanda being a safe destination for those seeking asylum. Despite the unequivocal ruling, it seems as though the PM is in plans to pass an emergency law to declare Rwanda as a safe country[4]
The Court of Appeal deemed the Divisional Court's initial decision as having procedural errors, citing significant reasons to believe that Rwanda might not adequately assess asylum claims.[5] This situation violates Section 6 of the Human Rights Act 1998 (HRA), which prohibits public authorities from acting in ways that infringe upon the rights protected under the European Convention on Human Rights.[6]
Discussions:
On one hand, Rishi Sunak and other proponents argued that the principle of removing asylum seekers to a safe third country is lawful. Sunak expressed his commitment to stopping small boat Channel crossings and mentioned working on a new treaty with Rwanda to address the Supreme Court’s concerns.[7] On the other hand, opposition leader Sir Keir Starmer and others criticised the policy as a waste of taxpayer money and as the latest ‘Tory gimmick’.[8]
The article preliminarily inclines towards finding the humanitarian arguments favourable, the essence of the Rwanda asylum partnership also lies with a significant caveat – it has not been scrutinised by parliament. Similarly, finding the view of the Law Society president I. Stephanie Boyce, the article agrees the profoundness and irreversibility of the policy, simply should not have been able to proceed without due scrutiny by parliament.[9] Further, the article finds it hard to find enough confidence in assuring that the Home Office has the capacity to identify all individuals that would be unsafe to send to Rwanda, seeing the short timeframe for screening asylum-seekers.[10]
Contrarily, while the aim for tackling the UK’s illegal migration issues,[11] is for understandably practical reasons; where also the article agrees its motivations are well-founded. The policy seems to overlook the ‘vanilla argument’ that its coming to existence was already contentious to begin with. No matter where you stand, a common ground we should aim for is to put all before parliament scrutiny.
Conclusions:
The UK Supreme Court's decision against the Rwanda asylum policy marks a pivotal moment with extensive legal, political, and human rights consequences. It puts the government's current methods of dealing with asylum seekers under scrutiny and prompts wider inquiries regarding the UK's dedication to global human rights legislation and agreements.
[1] R (on the application of AAA (Syria) and others ) v Secretary of State for the Home Department [2023] UKSC 42 [1].
[2] Ibid [5]-[9].
[3] R (n 1) [9]-[10].
[4] Andrew Sparrow, ‘Rishi Sunak Says He Will Pass Emergency Law Declaring Rwanda Is a Safe Country after Supreme Court Ruling – UK Politics Live’ the Guardian (15 November 2023) <https://www.theguardian.com/politics/live/2023/nov/15/rwanda-deportation-policy-supreme-court-rishi-sunak-leadership-conservatives-uk-politics-latest> accessed 15 November 2023.
[5] R (n 1) [14]-[15].
[6] ‘UK Supreme Court Finds Rwanda Removal Plan for Migrants Unlawful’ (15 November 2023) <https://www.jurist.org/news/2023/11/uk-supreme-court-finds-rwanda-plan-is-unlawful/> accessed 15 November 2023.
[7] William Wallis, Anna Gross and George Parker, ‘Supreme Court Says UK’s Rwanda Asylum Policy Is Unlawful’ Financial Times (15 November 2023) <https://www.ft.com/content/2ff756e4-9719-44f6-b4db-1955ae90ac64> accessed 15 November 2023.
[8] ‘Rishi Sunak Defends Asylum Plans as Tory MPs Vent Anger’ BBC News (15 November 2023) <https://www.bbc.com/news/uk-politics-67424548> accessed 15 November 2023.
[9] ‘Rwanda Removals Deal – Unexamined, Unenforceable’ <https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/rwanda-removals-deal-unexamined-unenforceable> accessed 15 November 2023.
[10] Ibid.
[11] ‘Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Arrangement’ (GOV.UK) <https://www.gov.uk/government/publications/memorandum-of-understanding-mou-between-the-uk-and-rwanda/memorandum-of-understanding-between-the-government-of-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-government-of-the-republic-of-r> accessed 15 November 2023.
