In April 2022 the Conservative Government of Boris Johnson introduced plans to remove asylum seekers from the United Kingdom to Rwanda. This was a very controversial policy and it felt inevitable that it would face judicial review (a legal challenge). In fact, the Illegal Migration Bill (now an Act) which updated Britain’s asylum system stated on its first page that it may not meet the requirements of the European Convention of Human Rights but that the government wanted to pass it anyway:
These legal challenges eventually led to the policy being adjudged by the UK Supreme Court. So, what was the Supreme Court’s judgement, why did it make it and what is the significance of this decision for the government?
What is the Rwanda Policy?
There are a number of international laws that Britain are subject to. These include:
1951 UN Convention on Refugees – This codifies the rights of refugees under international law. It sets out the expectations of states in dealing with asylum claims.
United Nations Convention against torture – Britain has been a signatory to this treaty since 1987. If a person was refouled to a state and was tortured, this would break international law. Indeed, if the British government refouled someone to a country where torture was objectively possible it would unlawful.
The European Convention of Human Rights – Under the European Convention of Human Rights which Britain has been a party to since 1953 (and was one of the first ratifying states) refugees have certain protections:
Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”
In addition, there are relevant UK laws. The most notable of this is the Human Rights Act (1998) which codified the ECHR into British Law and means the convention rights can be adjudicated on and protected in British courts.
For a number of years Britain has seen the number of migrants arriving on small boats grow significantly.
Many of the people coming to the UK in this fashion are paying significant money to criminal gangs and, tragically, many lives have been lost in this fashion. When migrants reach the UK, they have to be housed whilst their asylum claims are managed. It is estimated that the bill for housing migrants (who are often placed in hotels due to a lack of facilities) is over £4 million per day whilst the asylum system costs around £1.5 billion per year.
Aside from their moral duty to asylum seekers, the UK has to abide by international law. Any attempt to deal with the issue has to be within a legal framework. In order to deal with what it saw as a growing migrant crisis from across the English Channel, the UK Government announced in April 2022 that they had designed a new policy to deal with the issue. Under this policy, the UK Government would send some asylum seekers who arrived in the UK onto Rwanda. A deal was reached between the government under which the UK would pay Rwanda £120 million. The then Prime Minster, Boris Johnson, said:
” So from today, our new Migration and Economic Development Partnership will mean that anyone entering the UK illegally – as well as those who have arrived illegally since January 1st – may now be relocated to Rwanda.
This innovative approach – driven our shared humanitarian impulse and made possible by Brexit freedoms – will provide safe and legal routes for asylum, while disrupting the business model of the gangs, because it means that economic migrants taking advantage of the asylum system will not get to stay in the UK, while those in genuine need will be properly protected, including with access to legal services on arrival in Rwanda, and given the opportunity to build a new life in that dynamic country, supported by the funding we are providing.
The deal we have done is uncapped and Rwanda will have the capacity to resettle tens of thousands of people in the years ahead.
And let’s be clear, Rwanda is one of the safest countries in the world, globally recognised for its record on welcoming and integrating migrants.
The Rwandan government would then process their asylum claims and, if they were deemed to be legitimate under international law, they would be granted asylum in Rwanda. The first scheduled flight to Rwanda was scheduled to be in June 2022, but the flight was cancelled after legal challenges and a ruling from the European Court of Human Rights. This was the start of a more than year long legal fight which was resolved by the Supreme Court (at least for the time being) in their judgement of the 15th November 2023.
What is Judicial Review?
Judicial Review refers to a legal challenge of a public authority. Whilst Parliament is sovereign and can, in the words of AV Dicey, “make and unmake” any law, the courts can test whether the government has acted ‘ultra vires’ (beyond their powers). The Supreme Courts is the final appellate court in the UK and therefore makes a final judgement on judicial review.
What did the Supreme Court rule?
On the 29th June 2023 the High Court found that the Rwanda Policy was unlawful, forcing a temporary suspension in the proposed flights. On the 15th November 2023 the Supreme Court unanimously agreed with the decision by the High Court. In their ruling, the Supreme Court focused on whether Rwanda was a safe country for asylum seekers, whether Rwanda would stick to a policy where they avoided refoulement (sending someone back to a country where they may be subject to persecution) and whether there was evidence that Rwanda would stick to any policy commitments that it had made to the British government.
The court found that:
- Whilst the UK and Rwanda had entered into their treaty agreement in good faith, there were “present deficiencies[in] the Rwanda asylum system”.
- There was a real risk of “ill treatment” if refugees were sent to Rwanda.
- Rwanda did not seemingly understand its obligations under the UN Refugee Convention.
- Rwanda had failed to abide by its assurances to the Israeli Government in a similar agreement they had made.
- Rwanda had a history of refoulement.
- Rwanda had a poor history of processing asylum claims. Between 2019 and June 2022 they had processed just 152 cases.
Importantly, the Supreme Court did not say that the fundamental principle of ‘outsourcing’ asylum claims was unlawful – instead that the specific policy arrangements with the Rwandan Government were. They even indicated that at a future point, the arrangements may improve and may therefore be lawful. However, at the moment, they ruled they were not.
Is the UK Government bound by the decision?
In 1998 the Human Rights Act codified the European Convention of Human Rights into UK Law. Section 6 of the Human Rights Act (1998) says:
This means that because the UK Parliament has legislated to make it so, a court can find the action unlawful. However, parliament in the UK is sovereign. This means that if Parliament passes primary legislation, it can effectively nullify the Supreme Court verdict. Indeed, in her brutal resignation letter to the Prime Minister just a day before the court ruling, Suella Braverman said that the UK Government should have prepared for the potential of a adverse judgement in this case by proactively legislating to make the Rwanda plan significantly legal:
“At every stage of litigation I cautioned you and your team against assuming we would win. I repeatedly urged you to take legislative measures that would better secure us against the possibility of defeat. You ignored these arguments. You opted instead for wishful thinking as a comfort blanket to avoid having to make hard choices. This irresponsibility has wasted time and left the country in an impossible position.
If we lose in the Supreme Court, an outcome that I have consistently argued we must be prepared for, you will have wasted a year and an Act of Parliament, only to arrive back at square one.
Worse than this, your magical thinking – believing that you can will your way through this without upsetting polite opinion – has meant you have failed to prepare any sort of credible Plan B.”
Suella Braverman’s resignation letter – 14th November 2023
Legislation passed after a supreme court judgement has happened on a number of significant cases in the past:
A. v Home Secretary (2004) – In 2004 a group of prisoners who were nicknamed the Belmarsh 9 were being held indefinitely at Belmarsh Prison. They launched a judicial review arguing that their indefinite detention was a breach of Article 5 of the European Convention of Human Rights. The Appellate Committee of the House of Lords (then the supreme court of the UK) judged that the detention of the prisoners was unlawful.
Consequently, Parliament passed the Prevention of Terrorism Act (2005) which allowed for control orders to be placed on terror suspects, even if they had not been found guilty of any offence. Consequently, they largely nullified the effect of the Law Lords judgement.
Ahmed v Treasury (2009) – In 2007 three brothers were under investigated by the Police for suspected links to terrorist organisations. None were charged with any criminal offences. Despite this, they were subject to an asset-freezing order by the UK government in order to prevent them fundraising for groups such as Al-Qaeda. This was legally problematic. An important aspect of the case was regarding one of the most fundamental principles of the rule of law – that of innocence until proven guilty. If any of the three complainants had provable grounds that they were funding terrorism, it stands to reason that they would have been charged under Anti-Terrorism legislation, yet not of them had been charged. However, despite not reaching the threshold for taking a charging decision, the Treasury had taken the decision to freeze their assets. As they had not been charged, they no chance to argue their case against the asset-freezing order. The case reached the Supreme Court in 2009 and was one of the first significant cases the new court heard. The court judged that the asset-freezing was unlawful and the British Government had acted ultra vires.
The government was disappointed with the verdict and immediately set about legislating on the issue. The Terrorist Asset-Freezing (Temporary Provisions) Act 2010 was passed in just four days, by 376-56 in the Commons and being ‘nodded through’ (passed without a vote) in the House of Lords. As such, the very actions that had been found the Supreme Court to be unlawful were now allowable in statute law.
How did the UK Government react to the ruling?
The government said that it is going to introduce new legislation to mark Rwanda as a safe country, and, in addition, that they are working on a new treaty with Rwanda which they hope the Supreme Court may interpret differently in the future. In particular, the treaty would ensure there was no refoulement from Rwanda to an asylum seekers’ country of origin. The Prime Minister said “we need to end the legal merry-go-round”. However, it is not immediately clear that the planned legislation would stop the Supreme Court reaching a similar judgement on Rwanda.
Regardless of whether the plan becomes lawful under UK law, it will face challenges from the European Court of Human Rights under the European Convention of Human Rights and that is the sticking issue for the government.
On the the ECHR Sunak said:
” I will not allow a foreign court to block these flights. If the Strasbourg court chooses to intervene against the expressed wishes of Parliament, I am prepared to do what is necessary to get flights off”
If the European Court of Human Rights in Strasbourg again blocks the flights, it will lead to demands from many in the Conservative Party to scrap Britain’s membership of the ECHR, thereby removing this bind on the UK Government. The New Right factions within the the party, which include the likes of Suella Braverman and Jacob Rees-Mogg, will push for this action. Indeed, they have been pushing for this showdown for some time with some seeing it as a similar ideological struggle to Brexit. However, other more One Nation conservatives will believe that this would be an error that will hurt Britain’s reputation for the respect of human rights and its soft power around the globe.
Of course, a key voice in that debate will be that of new Foreign Secretary, Lord Cameron. As Prime Minister faced challenges from the ECtHR over the UK’s blanket ban on Prisoner’s Voting. At that point, Cameron indicated he might be willing to leave the ECHR to ensure Britain had sovereignty over such issues and in 2014 the then Prime Minister announced in his Party Conference speech that he would repeal the Human Rights Act (1998) and replace it with a British Bill of Rights. Yet, such an action would be out of kilter with his natural foreign policy inclinations and, whilst as a PM he had to appeal to the right-wing base of his party, as Foreign Secretary that concern is no longer is.
It is unclear that will happen next. But it feels inevitable that any new treaty will again be challenged in the courts. With a May 2024 General Election likely, it is perhaps unlikely that the Rwanda Plan will have any impact on migration before the next election and it is important to note that swiftly moving those who arrive in Britain outside the ‘safe and legal routes’ is one of the PM’s five key pledges. As such, there can be no doubt that today was a difficult day for the government.
The decision by the Supreme Court today marks the end, or at least the end of this stage, of legal challenges to the Rwanda policy. The policy was found to be unlawful by the Supreme Court because Rwanda was not deemed to be a safe country that could be trusted to carry out an appropriate asylum system under international law. However, the government have already promised to legislate to ensure that Rwanda is seen as a safe place for asylum seekers who arrive in Britain to be sent.
Rwanda Policy – The 2022 policy which proposed moving asylum seekers from Britain to Rwanda to process their claims.
Illegal Migration Act (2023) – An Act of Parliament passed in 2023 which aimed primarily to deal with the small boat crossings.
Supreme Court – The highest court in the UK. It was set up as part of the Constitutional Reform Act of 2005. It is the highest court in both civil and legal matters.
Appellate Committee of the House of Lords – Until 2009 the court in which the Law Lords sat that served as the highest court in the UK.
UN Convention on Refugees – An international treaty that codifies the rights of refugees.
European Convention of Human Rights (ECHR) – An international treaty to protect and enforce fundamental Human Rights in Europe. It was signed in 1950. In 1998 it was codified into UK Law in the Human Rights Act.
European Court of Human Rights (ECtHR) – The court in Strasbourg that exists to ensure member states are complying with the ECHR.
New Right – A faction in conservatism which in social terms advocates for traditional values, limited government intervention and an emphasis on a strong national identify.
One Nation – A faction in conservatism which in social terms emphasis social cohesion through addressing inequalities and closing gaps between different groups in society.
Human Rights Act (1998) – The statute that codified the ECHR into British law. This means convention rights can be upheld in UK courts.
Refoulement – The forced return of a refugee to a place they might be subject to persecution.