19th December 2022
Today the High Court handed down its judgment in respect of the many legal claims brought against the Rwanda removal policy.
On the face of it, the government of the United Kingdom appear to have won – and that is certainly how the judgment has been reported:
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But.
In two ways the government has not won, and indeed this may not be a welcome judgment for the government.
Let me explain.
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The wide legal challenge was to the policy.
In effect the policy is as follows: the Home Secretary can decide that asylum claims made in the United Kingdom should not be determined here, and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there.
A legal challenge to any policy is always difficult – almost impossible.
This is partly because courts do not like intervening in matters of policy, as opposed to reviewing particular rules and individual decisions.
It is also partly because to say that a policy is unlawful means, in effect, that every possible rule made under that policy and every possible decision made under that policy will be unlawful.
And it is partly because policies can be adapted and modified so that the possibility of the policy itself always being unlawful can be avoided.
A policy is always the hardest target to hit in the administrative law courts.
It was therefore no great surprise that the High Court in this case – with a bench comprised of the two most experiences judges in administrative law matters – rejected the challenge to the policy as a whole.
And so, the government “won”.
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The government, however, also lost.
In the eight individual cases under review, the High Court decided that the removal decisions be quashed and the Home Secretary take the decisions again with proper regard to individual circumstances.
Look at the final paragraph carefully:
That paragraph indicates that the government lost on nineteen particular decisions in this case.
Nineteen.
Each of those nineteen decisions was legally flawed: every single one.
The policy may well be lawful – but in not one case was the policy lawfully applied.
And so the the government lost all the individual cases.
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Now we come to the real defeat for the government.
The import of the High Court decision is that in respect of each removal to Rwanda under the policy, the Home Office has to apply the policy in a robust and reasoned manner to the individual circumstances of each case in each of the decisions to be made.
Otherwise the removal will be successfully appealed or reviewed.
But for page after page of this judgment there is a catalogue of Home Office errors in respect of each of the cases.
The impression one forms reading the judgment as a whole is that, with the resources and administrative competence available, the Home Office simply is not capable of making all the individual decisions so that many removals to Rwanda are likely.
For the legal issue with decisions which need to be made on individual circumstances is that each decision can be appealed or otherwise legally challenged according to those circumstances.
Or to put it another way: the government has legally saved its Rwandan removal policy at the expense of making the lawful implementation of that policy extraordinarily resource-intensive and financially expensive.
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Of course, this judgment may be appealed by the claimants – though it seems at first read a strong judgment by two highly regarded judges in this field, and I do not think an appeal would be likely to succeed.
And so perhaps the policy under challenge may actually be implemented – though it seems there are no current plans to send any asylum seekers to Rwanda.
But.
Even if this policy is one day lawfully implemented – if – it will be always be an administrative and financial drain of the highest order on the Home Office and thereby the taxpayer.
Many will say that the policy is immoral and should be dropped on that basis alone.
Being immoral, however, does not make a policy unlawful.
But a policy being lawful also does not make it practicable.
The government and its supporters may raise a cheer that the policy is itself has been held to be not unlawful.
But today’s judgment means that – like the chartered flights to Rwanda last summer – the lawful implementation of the policy may never really get off the ground.
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The very essence of a Pyrrhic victory for the Home Secretary.
Sadly the current Home Secretary will not care about the additional burden implementing it legally places on Home Office resources or that that will affect Windrush compensation and responses to other immigration claims. Just as she doesn’t care about the outrageous cost of the policy, nor the utter failure it is to deter “illegal” asylum seekers.
This is a very expensive, unworkable and highly immoral dogwhistle policy. If they properly resourced the asylum claims system and opened legal routes for asylum seekers to enter the UK for their cases to be assessed the problem could be resolved. It’s almost as if they want the boat crisis to continue so they can push a right wing agenda in response.
Exactly right. It won’t deter.
An appeal, assuming there is one, will be interesting particularly if it goes to Supreme Court.
Always worth waiting for the DAG view.
Excellent explanation, much better than any journalism i have seen on the judgement. Looks as though the implementation of the Rwanda stunt will be long, difficult and expensive
That’s really interesting; thank you.
Thanks. So cheered by your analysis.
Your comments are a great relief. I had been feeling depressed all day after having read that the Government had “won”
The idea that the UK should pick out some of the vulnerable people who have undergone all sorts of personal ordeals to flee persecution in Iran, Iraq, Syria, and other horrible places – or at the minimum, might have done so, but we haven’t done the work to check – and force them to fly 6000 miles to an equatorial African dictatorship to assess whether or not the UK should have granted them asylum in the first place (and leave them there, whatever the result of that assessment) is repugnant.
If this sort of policy is legal, there is something wrong with our laws.
But perhaps this result is the best that the judges could do – give the government a theoretical victory (yes, in principle this policy is legal) but make it practically impossible to implement (essentially, the same sort of assessment required to determine their asylum claim in the first place).
The gleefulness with which certain politicians make the entire country complicit in their performative cruelty – on this and other issues – is sickening.
As the quote often attributed to Tony Benn, but more likely coined by Neal Ascherson in 1996, goes: “The way a state treats its aliens is the way it would treat its own subjects if it dared.”
https://liberalengland.blogspot.com/2022/11/no-tony-benn-didnt-say-that-about.html
Whatever next? The government has widened ministerial powers to strip citizenship from “undesirables”: perhaps it will want to deport them to Rwanda too?
It would be a point of honour to learn that I qualify as “undesirable” in their eyes. The fact that I was born in England, albeit with two Irish grandparents, could presumably be legislated around. I’m digging out the Panama hat and sun-cream e’en as I type.
But do any of them seriously believe they can win the next election? Is this policy a desperate attempt to do so? Or is it the scorched earth tactic of a retreating army? Or is it viewed as the one good deed they can achieve in a naughty world before that naughty and ungrateful world drops the axe on their necks?
“undesirables” was my word – section 40(2) of the British Nationality Act 1981 says the the Home Secretary may “by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good”
Most of the amendments made by section 10 of the Nationality and Borders Act 2022 seem not to be in force yet, as far as I can see, but whey they are implemented, an order for deprivation of citizenship could be made without prior notice, if the Home Secretary “reasonably considers it necessary” for a number of reasons: “(i) national security, (ii) the investigation or prosecution of organised or serious crime, (iii) preventing or reducing a risk to the safety of any person, or (iv) the relationship between the United Kingdom and another country”.
Those are quite wide words. Perhaps she has a little list, of people she is sure would not be missed.
Whenever I read one of your posts I breathe a silent thank you. Sometimes it ought to be voiced.
Thank you, and Happy Christmas.
It sounds like the process for making a robust, unchallengeable case for deporting an individual to Rwanda will be at least as lengthy and costly as making a proper asylum decision in the first place.
If so, good.
I was part of a JR and appeal (as a subject matter expert for my company) lasting over the course of a few of years recently. I shan’t name the case or myself.
We lost on all counts both in the administrative court and at appeal, and yet… the original ruling gave us considerable room for manoeuvre such that the policy to which we objected was never able to be implemented.
At appeal, the ruling was definitive and against us, and celebrated as such by the ‘victorious’ party in the press and elsewhere. And yet the terms of the ‘victory’ were even more proscriptive.
To my knowledge the policy has only ever been implemented on a couple of occasions, and on one of those they gave up soon afterwards.
This bears such similarity to the ‘Rwanda’ case that I do wonder if this is the usual state of things, or just reflects two poorly drafted policies.
Or maybe poorly drafted policies are the current ‘usual state of things’ and therein lies the problem.
” But even if this policy is one day lawfully implemented – if – it will be always be an administrative and financial drain of the highest order on the Home Office and thereby the taxpayer…”
I understand all of the points made in your post BUT….
This case has that ‘legal lawfare ‘ aroma to it.
For sure it is outrageous that in 19 cases due process seems not to have been followed by the Home Office – that in itself is disreputable and wrong.
But …given the spin being put on it by detractors of this law could it be perceived by some, at least, that judges are now making political decisions and ‘dressing up ‘ their judgements to help make the implementation of laws more difficult to enforce?
Surely there must come a point in time even when laws are disliked ( or even detested) by the more, shall we say, liberal tendency, that additional implementational challenges ought not prevent the law from being carried out or being seen to be carried out?
Else do we begin to substitute the Judiciary for the Executive?
The judiciary was not imposing implementational challenges to a law hated by the more liberal tendency. It was saying the government didn’t obey the countries existing laws while implementing a controversial policy. Essentially the government must obey the law if it want’s to implement any policy. Either that or it can attempt to pass new laws to get round the restrictions.
The judiciary does not act for liberals against libertarians. It is blind to politics.
I’d like to believe your view that the judiciary ( in the UK) is blind to politics.
Unfortunately, courtesy of Brexit a number of cases were brought before the Courts that some didn’t think justicable.
It’s reported that judicial activism is on the rise – not least because of government over-reach – this may not be a bad thing.
Even this retired Supreme Court judge advocates a level of judicial activism in a democratic (political) system.
https://www.google.com/url?sa=t&source=web&rct=j&url=https://amp.theguardian.com/law/2020/oct/19/uk-needs-judges-to-limit-government-power-says-lord-kerr&ved=2ahUKEwih6N2P5Ib8AhUMSUEAHbw-A10QFnoECC0QAQ&usg=AOvVaw1pq6HQl3_rWZeqdg3p4g3G
Judges are people. Still, in the main, older white men, often privately educated, with many years of legal practice. I honestly believe do their best to lay aside the political and other views you might expect in a demographic sample with those characteristics, but it would be naive to expect them to be wholly successful.
What might be claimed to be evidence for “judicial activism” in the UK is perhaps better analysed as evidence that judges are not quite so deferential to politicians as they were until say the 1980s. And I think there is some evidence that judges are becoming slightly more deferential in the last few years, taking their lead from the Supreme Court under Lord Reed.
I would not be in favour of judicial activism. It’s misguided.
This is all hypothetical. Equally I could ask what if a very left wing government was elected with an 80 seat majority and right wing activists brought judicial review cases like this. Would you still argue they were wrong to oppose an apparently popular government?
We, the people need the debate of do we have elected politicians govern us or, do we opt for a more interventionist juduciary who are unelected.
Now is a good time for that debate.
The judiciary is not interventionist. It cannot act on its own. Someone has to bring a judicial review case for them to pass judgment on legality of an action of a public body, usually the government.
If the government has exceeded it’s powers under law then it should be held accountable. Otherwise we are on the road to dictatorship. There is no debate to be had. Judicial review is an essential part of our democracy.
Arsenal FC accept pitch side advertising which suggests that Rwanda is a highly desirable holiday destination. Britain is not.
“Or to put it another way: the government has legally saved its Rwandan removal policy at the expense of making the lawful implementation of that policy extraordinarily resource-intensive and financially expensive”
I bet they’ll suddenly find a magic money tree for this policy though, right after they get finished paying nurses with claps.
On the face of it this seems to be a Pyrrhic victory for the government. However, if you’ll pardon me for being cynical, I have never thought that anyone in government, with the possible exception of Braverman who does seem obsessed, cared all that much about actually deporting anyone. It’s all about having the fight, about being able to claim that the UK’s immigration “problem” would be sorted out if only those interfering judges would get out of the way and that people should give the government another majority to carry on the fight.
I happen to think that’s a failed strategy. Those of a liberal persuasion will be disgusted by the government’s willingness to ignore genuine claims for asylum, while those who are highly opposed to all immigration will note that immigration continues to increase and will withhold their votes. But I think that’s what the strategy is, and I’m afraid that some genuine asylum seekers from Syria or Afghanistan will find themselves deported to Rwanda in order to make the government look like they’re doing something.
What is interesting to me is the clear deference that the Courts show to Parliament. This is correct in my opinion as only Parliament ultimately has democratic accountability.
It seems clear to me that whilst the judgement requires individual asylum seekers to have their circumstances considered before being sent to Rwanda, if Parliament passed primary legislation requiring any body who arrived in a small boat coming across channel to be deported to Rwanda without consideration for their individual circumstances then the Court would enforce it. The only remedy would be a declaration of incompatibility which Parliament could then choose to ignore.
Of course Primary Legislation can overcome all obstacles; but then runs up agains the ECHR. If we break their norms, we should be out and then be seen to be an international Pariah.
It won’t help making trade deals, will it?
Also, it may not be possible. More and more Conservative MPs are happy to push back against this sort of idiocy. Could Braverman get such an act through?
Parliament only has limited democratic accountability though. The only elections in the upper house are a handful of Upper Class Twits of the Year voting for each other. With the lower house, so many people’s votes are effectively meaningless since they live in a safe seat.
The current administration continue to hollow out the Civil Service and denigrate its professionalism, whilst at the same time generating more and more complex activity for civil servants to undertake.
One point I don’t understand. In one of your early paras, you say the policy is for the applicant to “… be removed to Rwanda to have their asylum claims determined there.” But my understanding is that the policy is to remove asylum applicants to Rwanda to STAY there, with no further consideration of their application to stay in the UK. Has this been deemed lawful? How does it not breach the Refugee Convention?
The UK government will not further consider their claim for protection. But it has made an agreement with the Rwandan government under which the Rwandan government will consider their claim for protection. As I understand it, the argument is that, in arranging for the Rwandan government to consider their claim for protection, the UK government discharges its obligations to them under the Convention.
follow up question :
if the government engaged you to formulate a ‘rwanda selection policy’ on the basis that
a) the same two experienced judges let it stand and
b) that it created a clear guideline for whom Suella B could book tickets for
What would this need to look like to ensure a high probability of failure of any appeals process in each individual case?
My point is (or might be if you say that you cannot conceive of such a policy) that if such a policy cannot readily be conceived of then the government is certainly better off re-basic the asylum processing in the UK and ‘just getting on with the job’ though I wonder if the real problem with any policy is that the rights of the individual asylum seekor are so strong that really what is being uncovered here is a fundamental institutional disposition towards individual rights that simply cannot be trumped by ‘policy’?
Or has Braverman bitten off more than she can chew?
Shrewd seems to be the word of today for some but not all.
I am the granddaughter of Alma and Raphael Flatauer, German Jews living in Berlin under the Nazi regime. After the 1930 Nuremberg Race Laws were passed, it became ‘legal’ to take their citizenship away. Then it was ‘legal’ to deport them to a ‘legal’ camp in Poland, where they were ‘legally’ exterminated. Let their memory be a blessing, and let their story stand as a warning.
Absolutely. My mother was Jewish although she married out. Albeit no-one in our family died in or because of the Shoah, I have in common with many Jews a lurking sense of danger. This makes me particularly aware of anti anybody hatred.
I find it troubling that this right-wing government is over partisan towards Jews, including Israeli Jews, as this only serves to heighten the far left’s neurosis against us.
I think the Tory governments aren’t partisan towards Jews as a particular faith / cultural group – they’re simply “weaponising” claims of antisemitism for political ends (as the Forde Report says the right-wing faction within Labour – which was mainly non-Jewish – did when they wished to destroy Labour’s leader and the likelihood of a “left of centre” government and party).
The Tories’ “weaponising” of antisemitism is designed principally to secure themselves more VOTES (and possibly more party members and financial support) amongst a group they believe to be more in sympathy with them, I think. Given the dramatic slide in Tory support over recent months, it’s understandable the party would work very hard to win over ANY demographic seemingly likely to be responsive to them.
The antisemitism “weaponising” might also be done as a way of attacking Labour but it’s harder to make such dirt stick when the wife and children(?) of the current Labour leader are of the Judaic faith.
Thank you for your powerful testimony, Carol. And my condolences on your loss. May their memory be a blessing. We must never forget, nor take things for granted.
I was in Munich recently, and visited the new NS-Dokumentationszentrum, on the site of the “Brown House”, the Nazi Party headquarters. It is quite shocking how the machinery of the state can be turned to such terrible ends, documented in painstaking detail at the museum.
One thing that struck home powerfully (perhaps it was just too close to home) was a photograph of Dr Michael Siegel, a 50 year old Jewish lawyer, on 10 March 1933. This was just a couple of weeks after the Reichstag Fire Decree suspended most civil liberties on 28 February; less than a week after the Nazis won the German federal elections on 5 March 1933; and only a few days after they took control of the city of Munich on 8 March 1933. The next day, 9 March, Seigel’s client, the owner of a department store, was detained in “protective custody” and taken to Dachau, not yet completed but already operational. Dr Siegel made an appointment and attended the police station the following day to advocate for his client. The lawyer was violently assaulted by the SA, his clothes partially cut off, and forced to march bloodied and barefoot through the streets with a sign saying “‘Ich bin Jude, aber ich werde mich nie mehr bei der Polizei beschweren” (“I am a Jew, but I will never again complain to the police”).
He got away, and he and his family took the warning and escaped the country, seeking refuge elsewhere.
More here: https://www.motl.org/the-photo-that-alerted-the-world/
And yet, and yet…
The HO’s decision making in the selected cases was lamentable with some aspects dealt with by a team in London and others in Glasgow. Documents and submissions were not properly shared. Does that reflect Business as Usual or was something cobbled up quickly?
I suspect that Ms Patel, in late May early June when this stuff was to the fore was in full on bully mode to get decisions made and Asylum Seekers on a plane to Kigali lickety split. The mechanism used reflects that. Put together a properly skilled single team in one location and maybe, just maybe, the task of putting together cases that are ‘Judge Proof’ becomes achievable?
I saw someone highlight paragraph 403 of the judgment:
“There have been criticisms of the lack of access to legal advice. Given the scope of the right to make representations in this context, we do not consider that procedural fairness requires that a person who is at risk of action under the Inadmissibility Guidance be provided with legal representation for the right to make representations to be an effective right. It is essentially a matter of fact as to why he did not claim asylum in a third country on route to the United Kingdom. It is essentially a matter of fact for him to give his reasons why he should not be removed to Rwanda.”
From a judge, this is surprising, to say the least. To my untrained eye, it seems the same logic could be used to argue against access to legal advice in almost any situation. Am I missing something?
Another commenter said they suspected judicial overreach – this sounds decidedly like judicial underreach.
I also pre-moderate a blog and am grateful to you for the word “irksome”. I expect to make good use of it. Thanks.
The judgement, as you so well point out, is encouraging.
Can The Government just carry on regardless?
Try to deport 0000-FFFF without regard to the Courts decision in the hope that the Lefty Lawyers run out of money for appeals and the Courts run out of time when set against the Public Purse.
Do they suffer any meaningful and exponentially rising criminal liability if they ignore the decision or can they just continue thrashing about the place at the Taxpayers expense?
What confuses me about this issue is exactly what this means: “…the Home Secretary can decide that asylum claims made in the United Kingdom should not be determined here, and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there.”.
It seems to me that it is more reasonable to remove someone to where their claim to asylum in the UK can be determined (ie because otherwise they may abscond if their claim to asylum in the UK is, or looks like being, refused), than to remove someone to where they can only make a claim to asylum there. The latter would be tantamount to simply not allowing refugees to seek asylum in the UK. As it reads, though, the statement is ambiguous.