Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.
The judgment is here and there is a court-prepared summary here.
By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.
The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:
This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.
The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.
So both in practice and in the round the Rwanda removals policy has been held unlawful.
Opponents of the policy can celebrate – to an extent.
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Here are some further thoughts about what this decision signifies and does not signify.
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First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.
I blogged about these practical problems when the High Court handed down its judgment:
Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.
And the government appears not to have appealed the adverse parts of the High Court judgment.
The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.
The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.
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Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.
And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.
Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.
The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.
If the Home Office appeals to the Supreme Court then one suspects it is likely to win.
(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)
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Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.
And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.
If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.
In other words, the period for any actual removals before a general election next year will be short.
Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.
(Though it cannot be readily assumed that an incoming government will change the policy.)
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Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:
These defeats are not any cause for opponents of the policy to celebrate.
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Finally, there is a possibility of a work-around, which the government could adopt.
In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.
And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.
Abu Qatada was then, lawfully, deported.
(And then acquitted by the Jordanian court in the absence of such evidence.)
This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.
Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.
No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.
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The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.
This post is thereby based only on initial thoughts and impressions.
That said, there is reason today for opponents of the Rwanda removals policy to celebrate.
But perhaps not too much.
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This has been cross-posted from The Empty City Substack.
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A relief to hear sound analysis, real considered thinking and an initial statement of what this is likely to mean in the future. If we had more legal and political bloggers like this, our policy making would take place in an environment of clear insight and detailed information. Pity that’s not the case.
Thankyou for including the likely timescale of a further appeal. This week has also seen the publication of the Impact Assessment by the Home Office;
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1165397/Illegal_Migration_Bill_IA_-_LM_Signed-final.pdf
There’s a a lot of long grass available for anyone who wants to use it.
I note that the explanation uses the term ‘irregularly’ rather than ‘illegally’ for the means by which asylum seekers reached the UK. This is a much better term, in my view, and is both more accurate and less politically loaded.
The current Supreme Court scepticism of policy appeals seems perverse. Surely if a policy is illegal it must not stand? The majority of High Court Appeal judges found that this policy is illegal. A Supreme Court that will tend to uphold the policy in such a case is not doing its job properly. It should decide the legality, not simply defer to policy when opinions are divided.
I assume this is a hangover from the Prorogation of Parliament case. But each case should be decided on merit, not in response to adverse Government reaction. The judiciary should be independent of Government influence.
As things stand, two judges in the High Court thought this policy was in principle legal, but needed to be applied with more care to individual cases. One judge in the Court of Appeal agreed with that, but two disagreed. So three judges think it could work and two do not – just that the two were the majority in the Court of Appeal.
If permission is granted for a further appeal, which feels likely, it is possible that the Supreme Court could split 3-2 either way, although I suspect we might see a larger panel of 7 or 9 justices.
We understand very well the political balance on the US Supreme Court – the “conservative” faction is very much in charge today – but I would tentatively suggest that the temperature (or temperament) of the UK Supreme Court is rather harder to measure. On the whole that may be a good thing.
Good and not unexpected. More waste likely on a likely vain appeal. The £170k/deported looks rather light to me.
Often wondered if Home Office tea is laced with a psychoactive substance.
Depending on the choice of substance, that might be no bad thing. In the late ’60s there was a programme on BBC Radio 4 about chemical and biological warfare. One speaker cited the theory that if opposing sides in a conflict were dosed with LSD by a benevolent third party, their minds would expand to the point where each embraced the other’s point of view.
Given that this government is not known for minding much whether a policy is illegal or not, what would happen if they just said they were going to (effectively) ignore this and carry on anyway? What consequences would they suffer?
I ask because I have very little faith that they will abide by this ruling. It’d be good to be wrong.
Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.
“..The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.
If the Home Office appeals to the Supreme Court then one suspects it is likely to win….”
This is the constitutional rub – do we, ought we to allow judges to effectively over-rule MP’s (the legislature) in what was clearly a democratic act of Parliament.
It’ll be interesting to see what The Supreme Court rules (if it is appealed).
Today’s ruling isn’t about judges overruling statute law passed by a majority in Parliament. It’s about a policy introduced by the previous Home Secretary.
> do we, ought we to allow judges to effectively over-rule MP’s (the legislature) in what was clearly a democratic act of Parliament.
To my limited understanding, the fundamental problem here is that Parliament has passed two (or more) laws that the court has found to be in conflict, meaning that there is no clear democratic will to be respected. Properly it is exactly the job of Westminster – civil servants, MPs, and Lords all in their parts – to take the creation of laws as a serious and well-considered exercise precisely so that such problems don’t arise. Of course it can be of little surprise that hastily drafted laws rammed through with the main focus on the red-top headlines then prove flawed; of even less surprise that a government that chose Boris Johnson as its leader should behave this way.
“This is the constitutional rub – do we, ought we to allow judges to effectively over-rule MP’s (the legislature) in what was clearly a democratic act of Parliament.”
The answer to that is – yes.
Irrespective whether it is in this question or in a different context, there need to be safeguards against democracy – or to be more precise safeguards for minorities in a democracy. Because otherwise it’d be two foxes and a chicken deciding the lunch menu.
A question please.
The Court of Appeal has, so far as I’m aware, no jurisdiction in Scotland (or NI?). Could the Home Office transport asylum seekers to, say, Glasgow and from there to Rwanda without breaking the law? Would, then, a case have to be made to the Court of Session to have the act of transportation to Rwanda declared also unlawful in Scotland?
I am not a Scots lawyer – and hard blogging experience has made me generally averse to speculating what any legal position in Scotland would be.
The outcome of the case yesterday at the Court of Appeal is, when you distill it to its component parts,a matter of difference of opinion as to whether Rwanda is a safe place or not. Ok, there are nuances of process too, I accept – much turns on Rwanda being a safe deportation destination.
The Court of Appeal seems to think it’s not – Sunak has said:
“Rwanda is a safe country. The High Court agreed. The UNHCR have their own refugee scheme for Libyan refugees in Rwanda. We will now seek permission to appeal this decision to the Supreme Court.”
On the face of it, whichever way you dress it up, this looks, feels & sounds a bit like judicial activism – or, as DAG politely puts it ‘ policy’ type legal arguments.
If the government appeals , as seems likely, The Supreme Court will decide the legality or not of the policy & it will opine on whether Rwanda is a safe place or not.
I go back to my original contention – the separation of powers in the UK has worked reasonably well to date – with an increase in what is called ‘judicial activism ‘ maybe the time has come for a debate as to whether we increase or decrease the role of justices/judges in the legislation making process. Accountability is vital.
If we do go for greater judicial activism, I want a part in appointing these guys and a way of getting rid of them per MPs – seems equitable to me. Not sure the judges will be of the same mindset.
No, it is not necessarily “judicial activism”. Sometimes courts have to deal with policy issues as part of their job. Not all legal decisions with policy implications are exercises in “judicial activism”.
There is no dispute in this case that the court has to decide whether Rwanda is a safe destination, as a legal test. And it is still the legal test, whether answered yes or No, even if it also a policy matter.
There is no absolute law/policy binary – it is not “OR” – sometimes it can be “BOTH”.
Therefore saying that “this is like judicial activism” and then proceeding to “let me tell you about judicial activism” perhaps does not help here.
“..There is no dispute in this case that the court has to decide whether Rwanda is a safe destination, as a legal test. And it is still the legal test, whether answered yes or No, even if it also a policy matter…”
Agreed – it looks likely that The Supreme Court will make a judgement on this.
The government has already decided ( with all manner of advice from lawyer’s to human rights experts) that Rwanda is a safe place to return immigrants.
The Court of Appeal has decided that Rwanda is unsafe.
My point is still – whom do we want to decide? We still have a vague demos in this country – we also rightly have a powerful judiciary.
It’s great when the tri partite system works – but when one side or other steps on or is perceived to step on another’s territory, per this case, it looks like, in this case, the judiciary making political statements.
Whilst claiming the deportation process to be illegal – yes, get that, to make a political decision that Rwanda is unsafe might be seen as ‘a bridge too far ‘ in some questers.
The Home Secretary decided Rwanda was safe, not Parliament. That opinion is open to judicial review.
Government have to make thousands of decisions every day – fact of representative democracy that we have.
It’s likely that the Home Secretary took other advice as to whether Rwanda was a ‘safe place’ inc lawyers & other interested stakeholders. Even last week the HS was on record as to why Rwanda was deemed a safe place inc the resources and legal protections.
Some people will disagree.
Many of these decisions will be, necessarily of a political nature. We live in a society that, courtesy of the age, social media, a liberal establishment, everything is political.
The Court of Appeal didn’t unanimously reject Rwanda as a safe place.
The Supreme Court may decide Rwanda a safe place or it may decide that the location is a pure political decision and therefore not justiciable.
We’ll know soon enough.
We can have elected politicians make the decision or judges or the guy on the Clapham omnibus. Myself, I prefer elected politicians with skin in the game.
I would hope the Home Secretary did take advice, but her advisers are mostly political. She may well have asked senior civil servants who would probably advise caution over such a policy given the known possibility that it was not legal. Braverman herself has said it it might be (I think she said it was 50:50 but I can’t find the reference). She also says we must leave the ECHR to avoid illegality being a problem.
Of course politicians should make policy decisions, not judges. However I want judges to decide whether policies, when they are challenged, are legal or not. Judicial review is essential for democracy. Letting ministers have a free rein to decide what they want is highly dangerous. The fact that they are elected doesn’t make them any wiser or more honest. Policy should be properly thought out, not politically motivated like the Rwanda policy (a policy that can’t work but will be popular with Tory voters).
Priti Patel certainly had skin in the game, but she also had the backing of a Parliamentary majority which would keep her skin safe for up to five years (as long as it was thick enough). You might argue that that majority gives ministers legitimacy to do anything at all. Boris Johnson certainly did think like that. I think there must be checks and balances to ensure politicians do not exceed their authority and that includes acting illegally.
If you’ve never worked in government, you would be genuinely surprised how much advice & consultation takes place by Department’s outwith of political advisors especially in helping to formulate policy – these include other public /NGO bodies, private & public sector organisations including the 3rd sector, voluntary and charity organisations.
It’s my own experience that Department’s make use of the Government Legal Service too, to ensure potential legislation is legal and what is likely to have legal challenges – immigration is one of those topics that by its very nature is political with lot’s of potential banana skins.
Notwithstanding, Government ( of any persuasion) still has to make tough political & sometimes unpopular decisions – unfortunately migration of an illegal nature ie. arriving at UK shores without proper legal documentation has to be dealt with – this is the case in Europe/and the EU too.
Rwanda or any destination is likely to be unacceptable to some people – I fully get that – deporting migrants who arrive by illegal means to any country is pretty harrowing, equally the economic cost of housing/feeding/ health of ever increasing numbers is also taking money from the indigenous population too.
With infinite money & resources & infrastructure we’d have less of a problem.
I’m well aware widespread consultation takes place, thank you. That doesn’t mean adverse reaction is always listened to. This government. more than any other I can recall, has repeatedly proposed policies of doubtful legality. If determined on a policy, they will push it through despite legal advice. They admit this policy might not be legal and propose ways round that. Braverman as Atourney General declared things legal that were highly questionable. If the government itself recognises their policy is legally dubious how can you seriously argue they should be allowed to act unchallenged?
“This government. more than any other I can recall, has repeatedly proposed policies of doubtful legality…”
Care to share the top 20 policies of doubtful legality? ok – top 15?
The one that caused an issue was the NIP bill , that rightly , never got onto the statute books.
You’re claiming 50:50 by Braverman but, conveniently can’t find a reference – hey ho.
Thing is, the UK has quite a good history of whistleblowing – I’m genuinely shocked that myriads of civil servants haven’t left in their droves because they’ve found this Government wanting in pushing dubious legislation into law.
One good chap had the decency to resign over the NIP bill, his name not being significantly different from mine except he’s a knight t’boot.
Any evidence, preferably informed will help underpin and substantiate your assertions.
Apart from Rwanda policy, there were:
The various NIP legislation issues
Prorogation of Parliament 2019
Michael Gove handing a Covid Contract to friends of Cummings.
Michelle Mone’s covid contract
The VIP Lane, not challenged at the time but very dubious
Cabinet Office not releasing unredacted documents requested by the Covid Inquiry
Challenge to invoking Article 50 without consulting Parliament.
The challenge to government policy over sewerage discharges
Thats nine I can remember off the top of my head. Nine too many. This issue has dogged the government leading to the claims about lefty lawyers and judicial activism. As a result they’ve attempted to restrict judicial review and even thought about giving ministers the power to strike down such actions.
John: it is actually worse than Kevin remembers.
Braverman didn’t say 50:50: she said at the Nat-C event in March that the illegal migration bill was more than 50% likely to break human rights laws.
https://www.theguardian.com/politics/2023/mar/08/braverman-small-boats-plan-law-mo-farah
And she was unable to certify the bill’s compliance with the ECHR when it was introduced.
https://publications.parliament.uk/pa/bills/cbill/58-03/0262/220262.pdf
But she appears to be in two minds on that, as she has also said that she believes the bill complies with international law, but was unable to make a definitive statement to that effect.
https://time.com/6261045/uk-illegal-migration-bill/
This is parliamentary sovereignty in action: the legislation could pass a bill requiring the extrajudicial execution of all redheads if it so wished, and who could stop it?
Thank you Andrew – but Kevin made not an unreasonable assertion which I’m sure he can provide informed evidence – I’ll go as low as 10 examples to make the ‘calling out/put your money ‘ process easier to meet.
The sad fact is that Governments still have to make tough but legal decisions to well, govern.
‘Rwanda is a safe place to return immigrants.’
It’s a bit more complicated though: If you read a bit more widely, then you’ll find that this assertion is not so clear-cut. There are indications that Rwanda might be generally ‘a safe place’ but that might not be the case for the specific group of asylum seekers. There are credible reports that the Rwandan equivalent of the asylum adjudication process is deficient, that there isn’t the scope to adjudicate more than a handful of cases a year, that there are not sufficient safeguards to prevent refoulement.
There’s the precedence of Israel deporting some asylum seekers to Rwanda – this was not a success. And then there’s the occasion where a number of refugees or asylum seekers were killed.
To John Jones re “Any evidence, preferably informed will help underpin and substantiate your assertions.”.
Of course readers of this excellent blog want and need to assume that assertions about facts are in fact true, for it can be a substantial and time consuming task undertaking fact checking. Not only that, the reader does not want be played by way of appeals to confirmation bias. And if the assertion(s) turn out to be not true, or even partially false, it of course fatally tarnishes or even undermines the arguments of the poster.
I however notice that you are quite prone to making assertions about factual matters without providing any link to supporting informed evidence and data.
So I welcome your comment as, presumably, you mean it to apply to yourself as well.
I could pick quite a few examples from you of assertions you have made over the last few months for which it would have been most helpful if you had provided a link to the informed evidence. This blog has moved on so providing this here and now would certainly be off-topic.
Nevertheless, in the interest of good will and spirit of this blog, I have picked one illustrative example. (You can of course reply to the associated blog post, rather than go off topic here.)
Perhaps you would indulge me (us) and provide a link to informed evidence about the following assertion that you issued on 12th May :
“4. The UKs trade was in the EU, only with 5 or 6 big countries – we did and do very little trade with c. 20 odd countries – the much vaunted 450m rich population was/is nearer to 200m in reality”
(hint: 13% of total UK trade in goods and services in year 2022 (latest data) for these 21 countries (c.f. USA 16.3%) doesn’t strike me to be in accordance with either the term ‘did and do very little’ nor the dismissal of 200m customers – see e.g. https://www.gov.uk/government/collections/trade-and-investment-factsheets)