November 15, 2023 - 1:30pm
The Rwanda plan is dead. This morning, a panel of five Supreme Court justices unanimously delivered the death blow to the scheme, the centrepiece of the Government’s efforts to stop irregular boat crossings across the Channel.
The case hinged on the principle of non-refoulement, according to which nations are forbidden from sending asylum seekers back to a country where they risk persecution. Rwanda, the Court decided, could not be trusted to comply with the principle, making the Government scheme unlawful.
The outcome was perhaps inevitable. Parliament could have, of course, legislated to override the European Convention on Human Rights, the Refugee Convention, and several other legal instruments, all of which guarantee the principle of non-refoulement. But faced with the political and diplomatic costs of such a course, the Government instead chose to argue that Rwanda was a safe third country. That was the gambit that failed today.
Much of the evidence against Rwanda came from the United Nations High Commissioner for Refugees which, rather unusually for a UN agency, intervened in the case. As both the Divisional Court and the Supreme Court noted, the UNHCR is not an entirely disinterested party: it has consistently opposed the sending of asylum seekers to third countries or, in blunter terms, wealthy countries offloading their asylum seekers to third countries across the world.
Yet despite the UNHCR’s partiality, there is no denying that the Rwandan asylum determination system does not have a great record where non-refoulement is concerned, even though it is hardly a terrible one by global standards. The UNHCR has its own version of the Rwanda plan, processing asylum seekers from Libya in Rwanda, then resettling them in third countries. Rwanda also hosts large numbers of refugees from neighbouring countries, though they do not have to go through the Rwandan asylum system, whose credibility was the linchpin of the case.
What next? The Government can find another Rwanda, though few states would be willing to not only process refugees, but also allow them to remain there if their claim is successful. The latter element is what made the Rwanda plan so distinctive compared to its existing European counterparts (only last week, Albania agreed to allow Italy to build two refugee processing centres on its territory, but their inmates will have the right to apply for asylum in Italy).
Another possibility, proposed by the legal scholar Richard Ekins, is to switch from an “outsourcing” policy to an “offshoring” one. Under the latter, asylum seekers would be removed to a British Overseas Territory and have their claims processed by British officials. If successful, refugees would be resettled in a third country. This approach would be harder to challenge in the courts, as well as complying with the United Kingdom’s international obligations.
More broadly, the Supreme Court’s judgement is certain to lead to the renewal of calls for the United Kingdom to leave the ECHR. Probably for this very reason, in his oral remarks Lord Reed was at pains to emphasise that non-refoulement was enshrined not only in the ECHR, but in other treaties and domestic statutes too.
In her resignation letter, Suella Braverman accused Rishi Sunak of “magical thinking” and of using “wishful thinking as a comfort blanket to avoid having to make hard choices” over the small boats issue. This was apparently a result of his refusal to legislate to override the UK’s treaty and domestic legal obligations, which would have shielded the Rwanda plan from successful judicial review. Instead, the Government relied on a throw of the dice in front of the courts, which has now failed. Whatever one thinks of the morality of the Rwanda scheme or of the former home secretary, it is today hard to disagree with her assessment.
Yuan Yi Zhu is an assistant professor at Leiden University and a research fellow of Harris Manchester College, Oxford.
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SubscribeI’ve all but given up hope that illegal immigration will ever be brought under control and think that Europe is just going to slowly abolish itself.
So I’ll just content myself with the following comment, which I know is flippant and cheap, but who cares: it seems to me absolutely absurd that migrants can wander across Lord knows how many safe countries (most of them illegally) before selecting the one they want and entering that one illegally – maybe even committing a crime or two or acting out some rampant antisemitism while they are there…and we cannot do anything about this flagrant abuse of our laws and asylum system because of our legal obligations.
I’m not saying that respect for international obligations is some kind of trifle that you can just cast aside, but as far as respect for the law goes, there needs to be some quid pro quo and migrants even arriving in the UK by boat or in Germany in the back of a white van shows that they have zero intention of even thinking about our laws, let alone respecting them.
It really does then beg the question – why should we?
The law really should be that a refugee must stop in the first safe country they reach and can only move on to another with the agreement of those nations. Funding for those countries which are hosting refugees should be very generous whist sanctions for those who refuse or encourage refugees to pass through should be harsh.
Of course none of this will ever be enacted because there are very powerful economic and political vested interests in the west who will have migration, wether it be through legal or illegal means, regardless of how their populaces vote.
There’s also things like Schengen which make such rules impossible. Although the whole concept of an area free of border and passport controls depends on there being effective policing of the area’s outer border which isn’t being done very well so who really knows where that’s going…
Compliance with Schengen is understandably nose-diving, and the EU Commission cannot prevent this trajectory. Maybe the EU Commission want this to happen in order to justify a massive increase in numbers/powers of the EU Border Force, thus creating the EU Army by stealth.
It is indeed a madness. But a toxic mixture of well intended liberal international rules from the 1940s and a malign human rights and identitarian/equality ideology has subverted all the foundations of genuine law security and communal order. I am reeling. Our police last week again bent the knee to hostile street mobs because they were Muslim; as they did to the lockdown breaking but thats ok BLM mob and the Jew bashing convoys before then. The State (minus Cruella) and their state media BBC propagandists told us they were ‘peaceful’. But we know that they are not and that they take glee in abusing the West. This is how it felt behind the Iron Curtain. Zil lanes and Big Lies. Similarly, those well spoken Supreme Judges and the Progressive Left well know that those they call ‘asylum seeking victims of war’ are economic criminals, using and paying mafia traffickers to break our borders illegally. But they do not care. What is most shattering – as with the decade long ‘blind eye’ by the same authorities – police law media – to the depraved actions of Muslim grooming gangs, is that progressive virtue signalling and adherence to state ideology in these culture wars is no longer a battle over woke free speech. It has mutated into an unlikely cowardly ally and adjunct to violence, crime and disorder. Its incredible. Orwellian. But that it is dystopic truth we are forced to address now.
Suella Braverman complained in her letter that no plan B had been set out in anticipation of this decision and that a year had effectively been wasted. She is surely right.
The difficulty now is finding a country that is likely to meet the demanding criteria of the Supreme Court but which will be sufficiently unappealing to potential immigrants that they try elsewhere.
Unfortunately at senior civil servant and political level through most of Europe there remains an antipathy towards renegotiating the existing refugee conventions which is ultimately what is needed if Europe is not to be flooded with immigrants whose culture is antipathetic to European culture.
Thank you for pointing that out. Absolutely correct, which is why Champagne Socialist’s comment above is as absurd and oxymoronic as his/her username. I just quoted from Suella Braverman’s resignation letter, and used bold text to identify the relevant passages.
I find you to be a most sensible poster, and even on the few occasions where I don’t agree with you, I still see the logic in your reasoning. And yes, that’s a compliment. 🙂
Was ever a Court judgement more wearyingly predictable?
“Lord Reed was at pains to emphasise that non-refoulement was enshrined not only in the ECHR, but in other treaties and domestic statutes too.“
This is essentially how a globalised elite retain control. Inserting clauses into international treaties which allow fellow elites to enact punishment upon any country in which it looks like they are losing control. It’s reminiscent of how the old monarchies of Europe, whilst been international rivals, would help crush any internal revolts that arose against another monarchy.
The court that made so many of the usual suspects salivate over the concept of Parliamentary Sovereignty only a few years ago over the Prorogation in 2019 now suddenly seems rather flim-flammy over Parliament’s ability to override these foreign laws. How convenient.
Designed to fail. The WEF wins again. How anyone can have any faith in UK politics is beyond me.
Ultimately the idea that we ship asylum seekers (even those who would be approved) off to Africa just didn’t work, and I don’t think many citizens thought it would, even those staunchly against immigration.
A return to a simple mantra: come in if we need you, come in if we invite you, return to the first safe country you passed through or return to your homeland. All immigrants fall into one of those categories.
All of this is a smokescreen from the real problem in this country, which isn’t illegal immigration by people crossing the Channel in boats, but massive legal chain migration. We should copy the policies being implemented by Denmark which seeks to limit the impact of this set of systematic demographic changes.
Good point, but one problem does not negate the other one. It’s a two-fold issue: illegal migration PLUS chain migration. Both are damaging the UK.
I am surprised at the ruling as had the Supreme Court allowed the plan there would be much more work for lawyers, which is what the purpose of such courts are. Lawyers would appeal each case of a proposed deportation to Rwanda to the huge benefit of their pockets. Immigration is a gigantic racket in which lawyers play a leading role.
I’m struggling to understand why the UK is going for this bizarre ‘send them to central Africa’ idea, with all its problems.
Why not have detention centers in the UK, process applications very quickly (divert resources to this) and deport people quickly?
The problem is that, under current guidelines, far too many illegal channel-crossers are given asylum. Change the rules, deport people quickly and you’d get a better result than the Rwanda idea.
Indeed. If I were conspiracy minded, I might even posit that they put such a plan in place knowing that it would fail, whilst giving them cover – ‘we tried our best’ – and the NHS/business get all the cheap labour it craves.
I am not conspiracy-minded either, but isn’t this exactly what Suella Braverman stated in her letter to PM Sunak?
I quote (bold font added by me): “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’.”
It hasn’t stopped anything. It has merely closed one avenue off and emboldened the government to assert the democratic wish of the electorate. The courts decided to legislate and will now be put back in their box.
“Emboldened the government to assert the democratic wish of the electorate”
You’re living in a fantasy land. The Rwanda scheme was an elaborate year-long stalling mechanism designed to distract the proles from noticing that the Tories and their financier backers have zero interest in lowering immigration. Less migrants means lower rents and higher wages. Come the time of the next election not a single migrant will have been off-shored. This is nothing more than pathetic grandstanding.
More likely they will just turn around to the electorate and say, “Well we tried. Look, it can’t be done. Now please give us your votes.”
Perhaps it will in time be seen as a death blow to the ‘Supreme Court’ – so called. We don’t need it. We should ignore it. I think in the end we will leave it
Why does the Court get to decide whether Rwanda is trustworthy or not? I would think that would be a legislative decision.
It saddens me greatly that although Rwanda is not the ideal place, it is also not that bad. Why Rwanda’s deficiencies against the ideal could not be balanced against all the seriously negative aspects of illegal immigration (human trafficking) for the immigrants as well as our society. Maybe then there could be some improvements found to the scheme which would have brought it closer to the ideal – ie those accepted as genuine asylum seekers (a tiny minority amongst all the economic migrants) could come to UK, if that is what they want. Ie make it a bit more like UNHCR’s own scheme that uses Rwanda
Well, its a dumb idea to send people who break UK law to Rwanda. I suggest Sunak says the best way to stop the boats is to sink them.
It has come out that the Foreign Office cited public interest immunity to suppress its knowledge of torture and extrajudicial executions in Rwanda. Never mind the European Convention on Human Rights. It was found today that sending people to such a country was a breach of British Statute Law and of English Common Law.
So Rishi Sunak has openly said that he intended to introduce legislation to declare Rwanda safe as a legal fiction. He almost said those words. The Loony Right, whom Sunak’s attempts to placate are entirely pointless, has lost Lord Sumption on this. One hopes that his days of providing it with intellectual cover are at an end. What has it ever done for him?
Labour will probably abstain on the Bill, and it will undoubtedly make no commitment to repeal the Act. After all, it would love those powers once it had them, and it had no plan to do anything else with the £200 million that has already been paid to a Rwandan regime that, what luck, employs Tony Blair.
A completely predictable defeat for Braverman – richly deserved!
A fix called Rwanda