A collision course with the law: the seismic importance of the Supreme Court’s Rwanda judgment

Introduction

On 15 November, the Supreme Court unanimously ruled that the UK government’s Rwanda policy is unlawful. It confirmed the Court of Appeal’s finding that the removal of asylum seekers to Rwanda poses grave threats to their lives and freedom. For the immediate future, then, the government’s plan to deter the arrival of forced migrants by small boats – those it perceives as gaming the system – looks unworkable.

It still feels like something of a novelty to be able to see the oral judgment being delivered in real time via the court’s livestream. And yet, for all its symbolic importance, onlookers were made to wait. It was preceded by two cases connected with the mis-selling of insurance and Bernie Madoff’s fraud in the Cayman Islands. This foreshadowing proved to be exquisite.

The Supreme Court’s judgment

There had been growing apprehension about this expedited outcome. Lord Reed’s Supreme Court has gained a reputation, unlike Lord Neuberger’s and Lady Hale’s, of being overly deferential to the government on matters of policy. For those that followed the submissions in October, the government’s main arguments look exceptionally weak – the thrust of which is that the Home Secretary is better placed to adjudge the safety of conditions in Rwanda. This was the position followed by the divisional court, but it is where the Supreme Court showed its teeth.

Lord Reed began by explaining that the court’s legal decision should not be construed as supporting or opposing any aspects of the political debate about the scheme. However, the robustness of the judgment could well be seen as warning against the rumours that the government might attempt to circumvent the European Convention on Human Rights (ECHR) to salvage the scheme. This was achieved through the clear, lucid explanation that non-refoulement, the prohibition against removing individuals to a place where they face serious threats to life or freedom, is much wider than the ECHR, which has been incorporated into domestic law through the Human Rights Act 1998. It is found in other international instruments, notably the 1951 Refugee Convention (Article 33), the 1984 UN Convention Against Torture (Article 3(1)) and the 1966 International Covenant on Civil and Political Rights (Article 2 through to 6 and 7). As such, it has achieved the status of a cardinal principle of international law. And, in a move that had legal scholars rubbing their hands together like hungry grasshoppers, it suggested that even without a treaty, it might be a rule of customary international law – which means that even without a treaty, states are bound to comply with this fundamental norm. This was a wider stance than the Court of Appeal, and in focusing primarily upon the issue of non-refoulement, they skilfully eschewed some of the more taxing questions about the conflict with the Refugee Convention raised in the prior decisions.

The key question thus became: are the factual conditions such that asylum seekers removed to Rwanda would face serious threats of refoulement? The court had to choose between two perspectives. On the first side, there was the picture of Rwanda painted by the Home Office’s two desk-based researchers, as a progressive, safe country. Having already parted with £120m of taxpayers’ money, the government underlined the significant financial incentives for Rwanda to comply with international law. On the other, there was the evidence on the ground, carefully compiled by the United Nations High Commissioner for Refugees (UNHCR), which has been operating in the country for quite some time.

In a move likely to infuriate Michael Gove, the UK Supreme Court put their faith in the more detailed accounts of the experts. First, the UK government had recently warned people residing in the UK that they faced credible threats to life from the state of Rwanda. Second, the UNHCR emphasised the systematic defects in the asylum system – a lack of judicial independence, very high rejection rates for people from countries the UK might remove under the agreement (such as Afghanistan, Syria and Yemen, who would likely be found credible in the UK) and a gross aversion to dissent – such as the fatal shooting of Congolese refugees who protested about their food rations in 2018. Third, Rwanda had concluded a similar deal in the past with Israel, which routinely broke its non-refoulement obligations despite its promises.

Where does this leave us?

The decision punches a key hole in recent legislation. Without a safe third country to remove people to, the Illegal Immigration Act 2023, is now ineffective. Nominative determinism par excellence. Nonetheless, this did not prevent Immigration Minister Robert Jenrick – of removing cartoon murals from immigration detention centres notoriety – from appearing on Newsnight to claim a victory in the face of a comprehensive defeat. The victory, in his view, was that the legal principle that the UK could remove people to a safe third country (just not Rwanda) had survived. The concept of a safe third country is indeed used by the EU’s Dublin Regulations. In practice, it has proven to be extremely problematic. But while some might claim the Dublin Regulations are based on international cooperation, it is difficult to maintain that the Rwanda scheme is anything other than burden shifting.

The validity of the safe third country principle ought to be strongly disputed. It is connected with several misunderstandings and manipulations of the 1951 Refugee Convention – the treaty at the heart of international asylum law. First, Article 31 prohibits the penalisation of asylum seekers by their mode of arrival – e.g., via small boats. For those relying on the safe third country concept, its application to those coming from a safe intermediate country has been questioned. As the then House of Lords put it, “[t]he single most important point that emerges from a consideration of the travaux préparatoires [the Convention’s negotiating history] is that there was universal acceptance that the mere fact that refugees stopped while in transit ought not to deprive them of the benefit of the Article”.

Second, Article 1E has been read as meaning that those who could have applied for asylum elsewhere on their journey might be safely removed abroad. In fact, it only applies to those who have already gained nationality elsewhere. To add another body of law to the list of obligations the government has disregarded, this principle falls foul of the laws of treaty interpretation, laid down in the Vienna Convention on the Law of Treaties 1969. An asylum seeker’s right to decide where they travel is consistent across the Convention, notably in Article 1A2, which stipulates that they must be ‘unwilling’ to avail themself to the protection of that country and Article 1C, that protection might cease if they have ‘voluntarily’ re-established themself elsewhere. These articles must be interpreted in good faith, and according to the Refugee Convention’s overall purpose: the protection of refugees. It is therefore not open to states to outsource their asylum obligations and undercut the spirit of the Refugee Convention in this way.

The instrumentalisation of asylum seekers

This brings us to the broader feeling that the government is setting itself on a collision course with the law. The Rwanda scheme is based on one which the government has sought to define its own success. This latest judicial failure has led to accusations that the Prime Minister is weak and unwilling to take the difficult steps needed to make the plan work. Twice-disgraced former Home Secretary Suella Braverman has suggested that the losses in the courts were entirely foreseeable.

Hours after the judgment, Prime Minister Sunak held an emergency press conference. He announced that the government was taking “the extraordinary step of emergency legislation”. The aim is pass to a new treaty that simply declares Rwanda safe. It is unlikely to pass the House of Lords, but even if it did, it still fundamentally misunderstands the essential message from these cases – that the conditions in the country, rather than treaties, are the only reliable indications of safety. Mere promises of compliance are not enough.

Sunak has since blamed foreign courts, despite the UK’s highest court blocking the scheme. And some have prophesied that this is what some conservatives have wanted all along. The government has simply had to endure these losses in order to tilt the balance of public opinion, and achieve the end goal of withdrawing from the European Convention on Human Rights. Regardless of how far the government is willing to go, this decision marks an uneasy period where the very constitution of our state and its relationship with the rule of law is being called into question.

Romit Bhandari is a senior lecturer in law at Royal Docks School of Business and Law, University of East London
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