This week the UK’s highest court will give its ruling on the lawfulness of the government’s ‘Rwanda policy’. Five judges will scrutinize whether ten asylum-seekers can be removed to Rwanda, where their claims would be dealt with under the Rwandan asylum system.
The Supreme Court is examining the case after a Court of Appeal two-to-one majority decision in June. This ruled that assurances given by Rwanda’s government, whilst given in good faith, were insufficient to ensure that there is no real risk to the asylum-seekers – the risk being that they could be wrongly returned to countries where they could face persecution or other inhumane treatment.
The Supreme Court hearing took place between 9 to 11 October, with the judgment expected on 15 November. It is impossible to predict which way the court will rule.
But it is possible to say what the court’s decision will not do: it will not rule on the principle of removing asylum seekers to a safe third country. A large part of the case turns instead on the credibility of assurances given by the Rwandan government about the safety of asylum-seekers it receives.
In this respect, the case is reminiscent of those concerning the deportation of terrorist suspects, where previous governments have also had to ensure they received credible assurances from the receiving state.
Neither will the decision delve into the political merits of the Rwanda policy: the court will seek to stick to the facts and law relevant to the case.
The case will also not affect the many other practical issues beyond human rights and legal concerns which are preventing migrants being removed to Rwanda or elsewhere, including the UK’s own significant issues processing its backlog of existing applicants and lack of agreements with other countries.
Crucially, a Supreme Court decision in favour of the government will not necessarily mean it can immediately remove migrants to Rwanda. Much will depend on the terms of the judgment. But if the applicants lose, they may consider whether the judgment leaves scope for taking the case to the European Court of Human Rights (ECHR) in Strasbourg.
If so, the applicants may request another interim injunction to temporarily halt flights to Rwanda until the case has been fully considered by the Strasbourg court. In making its decision the ECHR would first pay close attention to the Supreme Court’s judgment.
Ironically, the much-debated interim ruling from the ECHR in 2022, which temporarily and exceptionally halted the first flights to Rwanda, is what has enabled full judicial scrutiny of the policy by the UK’s own courts.
And the availability of such measures and the possibility of scrutiny by the ECHR appears all the more important given recent findings by Justice, the cross-party legal reform charity, that the UK’s longstanding commitment to the rule of law is under threat.
In either case, the UK government should be extremely cautious about its rhetoric. Anti-ECHR invective may find an audience domestically. But the government’s stated policy is to minimize crossings through better European cooperation – and attacks on domestic and European courts will only harm that cause.
Attacks on lawyers
Whatever the outcome, there is no need for the Supreme Court’s decision to result in a head-to-head conflict between the UK’s executive and judiciary – or with the ECHR.
Some UK politicians have sought to portray lawyers’ and the judiciary’s role interpreting and applying international law on migration and human rights as a pernicious project of ‘lefty lawyers’ – and an attack on UK sovereignty. Others have briefed that if the Rwanda policy continues to be frustrated by the courts, they will seek to leave the European Convention on Human Rights entirely.
But if the government is wise, it will not see even a negative ruling as a reason to rail against the Court, or the ECHR. Its obligations stem not only from its status as a signatory to the Convention on Human Rights – but also to the UN Refugees Convention, and numerous other international treaties which would also stop persons being removed to countries which could send them on to torture or persecution.
And withdrawing from the ECHR will have significant long-term implications for the UK’s international standing and soft power.
Regardless, the politics are likely to continue to preoccupy UK media headlines during an election year and amid criticism of the government’s handling of the ‘small boats’ issue.
The UK government’s decision to push the Illegal Migration bill (now Act) through Parliament at breakneck speed over the summer – despite the ongoing domestic litigation and calls to pause – has raised the stakes on this issue.
But what is really needed now is to dial down the rhetoric and boost diplomacy to find multilateral solutions to the current small boats issue.