The Supreme Court’s decision requires fresh thinking – not emergency legislation

Time, reflection and cool heads are needed to fully digest the ruling amid the heat of a turbulent few days in Westminster.

Expert comment Published 16 November 2023 Updated 28 November 2023 4 minute READ

In a lightning quick and clear decision, the UK Supreme Court has unanimously upheld the Court of Appeal’s decision that the government’s ‘Rwanda policy’ is unlawful.
 
The UK’s highest court ruled that whilst the Rwandan government entered into the arrangement with the UK in good faith, the evidence shows ‘there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (or return) to their country of origin if they were removed to Rwanda’.  
 
This was the long-awaited finale of proceedings with great significance for the UK government’s ‘small boats policy’. Coming ahead of a looming election, and following the sacking of the policy’s key protagonist, Suella Braverman, a negative result would inevitably be politically charged.
 
The prime minister’s reaction, announcing emergency legislation to declare Rwanda a safe country – and reframing the decision as a battle with the European Court of Human Rights – was intended to demonstrate his resolution to carry the policy through.

But it’s unclear how the proposal will comply with the Supreme Court’s decision. A new approach on the important migration issue is badly needed.

What the court did and did not say

It will take some time to fully digest the ruling and its implications for the government’s policy on irregular migration.
 
The whole case turned on the issue of the sufficiency of the diplomatic assurances provided by the Rwandan government that asylum seekers would be protected from ill treatment if removed to Rwanda (given its poor human rights record and deficiencies identified in its asylum system).

The Supreme Court made clear that it is not enough for the UK to be given assurances by the Rwandan government…instead, the question is whether the assurances are credible

The Supreme Court made clear that it is not enough for the UK to be given assurances by the Rwandan government, here in a Memorandum of Understanding between the two countries.  
 
Instead, the question is whether the assurances are credible. The court was clear that this is a practical and factual assessment, based on the circumstances and evidence available, to probe whether in practice there are sufficient guarantees in place that the asylum seekers would be protected from ill treatment (paragraph 102 of the judgment).
 
Here, the Supreme Court ruled the Court of Appeal was right to find that the assurances were insufficient: critically the government had failed to examine the reliability of the assurances.
 
The Supreme Court also clarified that the principle of non-refoulement or return to a third country is provided for in a number of international conventions that the UK is a party to and which the UK has implemented in domestic law, including the European Convention of Human Rights, the UN Refugee Convention and the UN Torture Convention (paragraph 33 of the judgment).  

Significantly, for UK policy and law makers the Court went on to explain ‘it may be that the principle of non-refoulement also forms part of customary international law’, a view to which the UK and other Refugee Convention parties have subscribed (paragraph 25). 

In many ways the Supreme Court ruling is a remarkable judgment, delivered just five weeks after the hearing. In a deft move, the UK’s five senior judges have offered not only legal clarity but much diplomatic prowess in side-stepping the politics and refraining from commenting on the government’s policy more generally. Instead, it focussed on the questions before it and the core issue of credible diplomatic assurances. 

The judgment appears to leave open the possibility for the government to consider a renewed scheme with Rwanda, or other countries in the future – but only if the government has secured sufficient assurances

As such the judgment appears to leave open the possibility for the government to consider a renewed scheme with Rwanda, or other countries in the future – but only if the government has secured sufficient assurances.

What matters

However, whether this takes place as an informal and non-legally binding Memorandum of Understanding with Rwanda or another state or a formal and legally binding treaty (as announced by the prime minister immediately after the judgment) is a red herring.

What matters is whether there are substantial grounds for believing that asylum-seekers would face a real risk of ill-treatment by reason of refoulement or return to their country of origin if they were removed to that third country

What matters is whether there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement or return to their country of origin if they were removed to that third country.
 
If the answer is yes, it is incumbent on the government to show what practical and credible assurances have been given by the state in question to remove that risk. If it is unable to show those assurances, it is likely to find itself in court again.  
 
The case is a clear win for the claimants who feared being returned to countries where their lives would be at risk. It provides guidance to current and future governments on the standards expected of diplomatic assurances when there is a risk to a person’s Article 3 (ECHR) rights.  

It also clarifies that the courts will be required to scrutinize assurances where there are substantial grounds for believing that asylum seekers who are removed to Rwanda are at risk of refoulement in light of the evidence available (paragraph 57 of the judgment). 

Much weight was also given to the evidence the UNHCR submitted as an intervener in the case. This was an unusual move for the UN body, but an indication of how gravely it took this case due to its implications for the global refugee framework.
 
The ruling also avoids the case proceeding to the Strasbourg court, showing the domestic courts are well-equipped to interpret and apply the European Convention on Human Rights to domestic cases.

Fringe calls to withdraw from the European Convention on Human Rights

There have been some fringe calls to leave the European Convention on Human Rights. This would be a disproportionate response to the Supreme Court’s ruling. It would be like using a sledgehammer to crack a nut. It would also be the wrong nut.
 
Leaving the Convention and Council of Europe won’t solve the small boats crisis. And it is not just the European Convention of Human Rights that would prevent people being returned to a third country where they would face a real risk of ill-treatment by reason of refoulement.

The UK is also, rightly, a party to other important international agreements such as the UN Refugee Convention and Torture Convention – as the Supreme Court highlighted.

Fresh thinking

The prime minister’s reaction was to announce emergency legislation to implement his government’s Rwanda policy.

There is clearly a pressing need to tackle irregular migration in the UK – both in terms of the humanitarian needs of those arriving and the challenges faced by host communities. 

But it is unclear how his proposal will ensure timely credible assurances are secured as required by the ruling, given the potential for serious human rights violations in the Rwandan asylum system.

Article 2nd half

It is also unclear why Parliament should not be afforded the full opportunity to scrutinize the proposal under normal parliamentary processes, rather than it being pushed through on an emergency basis.
 
The only certain outcome of provoking unnecessary confrontation with the European Court of Human Rights is that it will undermine cooperation with European countries on preventing small boat crossings.
 
Instead, the prime minister should use his ministerial reshuffle as an opportunity to call upon fresh thinking and find new diplomatic solutions.

Whilst separate to the Supreme Court case, the UK has had much diplomatic success with the Strasbourg Court recently proposing reforms to clarify its current practices on interim measures and make them more transparent. This is a big deal and is to the credit of the diplomatic efforts of the UK alongside its 45 Council of Europe partners – and the European Court of Human Rights’ willingness to listen.  
 
It shows that the UK can play a leadership role and find constructive solutions by remaining part of the huddle. The world needs more cooperation right now, not less. And it needs strong multilateral institutions to enable those discussions.

This article was updated on 28 November 2023.