16th November 2023
Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.
For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:
A court-approved summary can also be read here – and the full judgment is here.
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I wrote a couple of quick posts on the case yesterday for the mainstream media.
At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.
First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.
In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.
Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.
Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.
The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.
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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.
And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:
Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.
Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate. It would not have been relied upon had the government been actually serious about this policy.
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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.
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I’m not qualified to comment on the legal aspects, but one feature of a treaty approach on which the HoL Committee has commented is that it would enable much more thorough Parliamentary scrutiny before coming into effect.
It seems to me that the the SC is looking at actual evidence of Rwanda’s willingness and ability to execute their obligations, than any UK Act of Parliament will be futile without significant progress in the former. It would be like legislating that the Moon is made of cheese when informed observers know that it isn’t.
The issue with that is, assuming that HMG manages to pass primary legislation, that says Rwanda is to be considered a safe place in all court proceedings, the SC wouldn’t be able to get around that but that claimants would then probably go to the ECHR where the primary legislation would make no difference
The decision relied very substantially on the evidence of the UNHCR regarding Rwanda’s asylum management history. What is remarkable, though, is that the Government has not so far spent any ammunition on complaining about UNHCR. Perhaps this is because it is correct. However, no amount of treaty-mongering can change the facts. So this Rwanda scheme seems doomed for the time being. Good.
“the Government has not so far spent any ammunition on complaining about UNHCR.’
in my opinion the reason is simple – the UKG can and has issued threats to leave the ECHR and its a popular idea among the hard right but if you talk to them (as I have) and ask them ‘but UN law also makes it illegal and so will the UK leave the UN?’
They backpeddle mightily and usually give nonsense answers like ‘but everyone ignores UN law and its unenforceable’
Jonathan Sumption has touched on the constitutional difficulties of changing legislation to add Rwanda to *safe countries list* as was suggested in Today podcast posted today at 30:40 in & @thebarcouncil chair has issued a statement on this. When might Parliamentry Sovereignty be legitimately challenged by the courts? Looking forward to reading your views.
It seems to me that the the SC is looking at actual evidence of Rwanda’s willingness and ability to execute their obligations, then any UK Act of Parliament will be futile without significant progress in the former. It would be like legislating that the Moon is made of cheese when informed observers know that it isn’t.
It would be cheering to see the matching headline: “UK Government legislates that Moon is made of cheese.” Or perhaps “UK Government enshrines in legislation that Moon is made of cheese.”
I didn’t vote to regain our sovereignty only to be told by UNELECTED judges that the moon is not made of cheese.
Perhaps an incoming government could legislate that we have not left the EU.
Clearly the remaining EU countries world have no choice but to accept this, because it was passed be a sovereign UK parliament.
That. Is. A. Disgrace.
I respect the fact you voted to “regain our sovereignty”.
However, had the UK not retained its status as an independent sovereign nation throughout its membership of the EU, your vote would have been wasted.
Only a sovereign nation could have held a referendum, given the EU formal notice of its intention to leave, and subsequently have left the EU by way of Acts of Parliament that repealed the Act of Parliament that gave effect to the Treaty that took us in.
All without seeking the EU’s permission at any stage and with the EU powerless to prevent the UK deciding its own future.
You cannot regain that which was never lost.
I was impressed with the delivery of the judgment not just it’s content. The measured, clear and thorough presentation of the work made plain the diligence and care of the efforts resulting in the judgment. All of it looked to me from the outside to be a piece of work done to a good standard. I felt reassured that at least in this case this national institution was present and worked well.
However before too many people relax I’d just say that while it appears this particular constitutional flood wall has functioned as required many of the others have been irrevocably breached such that huge areas of the countryside are deep under water. And polluted with sewage. So there is much to do if we are to halt the decline let alone rebuild for the future. A sigh and a drink to celebrate, then back to work.
This decision could well have gone the other way without the intervention of the UNHCR, and the SC paying attention to their evidence. What a sad day, when respect for basic human rights in the UK requires a UN agency to become involved.
As a non-lawyer, I’m not going to comment on the detailed legal questions. However, I feel that both the PM and the new Home Secretary know that the Ruanda policy is doomed, for a combination of legal, political and timing reasons.
I suspect that the PM is choosing to keep the policy alive for (probably spurious) party management and electoral reasons. He hopes that his statements since the judgment will keep his right wing quiet – no evidence yet that it will. He hopes that they will electorally embarrass the Labour Party – polling suggests that it shouldn’t.
A Treaty with Ruanda will surely cost yet more money. Time for the Home Office Permanent Secretary to put on his Accounting Officer hat? Time for Chief Parliamentary Counsel to tell Ministers to stop wasting her staff’s valuable time?
Or am I being old-fashioned?
I am not a lawyer but an observer!
From my point of view nothing really matters unless the government can clear all the hurdles, constitutional and legal, before the next election.
If not, then the whole episode becomes a footnote in some obscure legal textbook.
My bet is that there is no way they can succeed.
If a legal binding treaty were in place between the UK & Rwanda, allowing immigrants to be processed there, what penalty on Rwanda is enforceable in case of default?
If Rwanda has the temerity to breach a treaty with His Majesty’s United Kingdom, we will send a gunboat to remind them of their obligations. No doubt some woke and disloyal geographer will point out the slight problem that Rwanda isn’t anywhere near the ocean. And perhaps a military researcher might point out, unhelpfully and treacherously, that the UK doesn’t have very many working gunboats any more.
But I am sure these minor problems can be resolved via a motion in the House of Commons.
I do question the significance of this decision in the context of the outcome of two cases in the Scottish courts, one on the appropriateness of the Westminster Parliament denying Royal Assent to a Bill passed by the Scottish Parliament which is surely not a minor matter in terms of our Unwritten Constitution and the other on the legal definition of a woman which is surely not an insignificant concept in the field of civil rights.
Neither case has attracted much interest amongst our London based media, but the outcome of both cases, unlike the matter of Rwanda may have a direct impact on the daily lives of millions of British citizens.
Moreover, without overly testing your patience, currently, a biological female refugee, who suffered abuse at the hands of biological males and now trembles in the presence of men may arrive in the UK, enter a single sex space for biological women, only to discover she is sharing it with biological men, who are women in law under the Equality Act 2010, and have to choose between accepting their presence or leaving this place of safety.
That one refugee might face that choice is surely one too many.
I think the sturm and drang of Westminster politics too often distract our body politic from what Ernest Bevin thought foreign policy should be about:
“Foreign policy is a thing you have to bring down to its essence as it applies to an individual. It is something that is great and big: it is common sense and humanity as it applies to my affairs and to yours, because it is somebody and somebody’s kindred that are being persecuted and punished and tortured, and they are defenceless. That is a fact.”
Perhaps, every now and then, we might substitute civil rights policy for foreign policy.
The decision certainly seems to me to meet your test “No sensible person (who didn’t believe in unfettered executive power) could disagree with that”.
It seems that the UK Government is hell bent on implementing this policy. What exactly are they now going to do? The PM’s remarks yesterday were something of a word salad.
David thank you as always for your posts. It seems extraordinary that the Supreme Court sighted so many other areas of International Law were relevant to the case which presumably the Governments advisors were aware of but thought they could ignore.
Curious but consistent in the arrogance perhaps? David
If I recall correctly, the A-G at the time the cabinet agreed to this policy was Suella Braverman KC
If a refugee is transferred to Rwanda, and if his asylum claim is accepted there, but he continues to fear persecution in Rwanda, and
in light of the UNHCR evidence to the Supreme Court that fear appears well founded – if all of that, could he not make his way back to the UK to make a fresh claim for asylum? Ad infinitum?
Very clear and interesting summary.
Seems to me that the UNHCR is a red herring, quite possibly a distraction. I counted 3 other treaties that UK would need to withdraw from and have to repeal 4 UK acts.
Lord Reed emphasised, by giving space after announcement, that not hearing UNHCR experience in the Divisional Court was a mistake.
He also pointed out early on in his summary that this court’s deliberation, is not on the policy, but on the legality. Demonstrating more political awareness than Suella Braverman.
Why was such relevant and important UNHCR evidence overlooked by the divisional court?
The ex home sec. would have known about the content of this summary. My summary; she decided to do her best to be sacked, go as a martyr, rather than this summary showing her to be a devious incompetent. All depends on what’s illuminated and what is left in the shadows.
I think that the Supreme Court has shown that our laws and the treaties we have entered into show common sense that our government, with its ideological obsession with eliminating asylum seekers, lacks.
Today I wrote the following to my MP:
Rwanda is clearly not a safe third country, and its actions in respect of asylum seekers have been shown by the Supreme Court’s deliberations to be wanting.
Mr Sunak and Mr Cleverly’s talk about changing U.K. legislation to declare Rwanda safe smells of Humpty Dumpty in Alice Through The Looking Glass:
When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
To create legislation on the basis of such wishful thinking will not change the facts…Rwanda is not a safe country, not for many of its own citizens nor for asylum seekers shipped like produce from the U.K.
I was pleasantly surprised by the Supreme Court ruling, especially how it made clear the leaving the ECHR would not make the policy legal. The only disappointment was not seeing Braverman have to face up to the rebuff in the Commons. Cleverly seems unenthusiastic about the policy, too.
I don’t think a treaty with Rwanda will be helpful in practice. The UK will not be interested in tracking what happens to deportees and enforcing the treaty to protect them. Rwanda won’t be concerned either. Where could anyone facing deportation from Rwanda appeal to?
The government has been almost unchallenged in pushing the idea that the Rwanda policy will solve the small boats issue. A large minority of the public have been convinced by this. The policy has thus been a political success. It’s about time the opposition began to forcefully point what a miserable and contemptible political figleaf this policy is. The cost and ineffectiveness of the policy needs to be properly exposed. It won’t stop the boats and could cost billions.
interesting that the MoU is not sufficient assurance that the Rwanda gov’t will stick to its agreement, contrast the Julian Assange extradition where apparently assurances from the USA gov’t should be accepted without question, see
https://www.craigmurray.org.uk/archives/2023/06/assange-an-unholy-masquerade-of-tyranny-disguised-as-justice/
While I agree with the comments already made, I think only one comes close to addressing the issue you raise – i.e. if what was included in the MOU had instead been included in a treaty, would that have made any difference.
The judgment refers to the content of the existing MOU and accepts that it was entered into in good faith but makes the point that if there were a breach that is not much help for the person who suffers as a result, though criticism might help some in future. I don’t see that if the provisions were included in a treaty that would make much difference.
The whole thrust of the judgment is a careful analysis of Rwanda’s record dealing with asylum seekers, which leads to a reasonable prediction that in the short term they won’t change much and that therefore sending people there breaches the UK’s international and domestic obligations.
All I can see which would satisfy these tests would be that there were a binding treaty with enforcement possible at the instance of an asylum seeker (that would mean their situation would be preserved while they make their complaint). The enforcement could not be in the Rwandan courts because, after reviewing the evidence, the SC does not put much faith in them. So maybe the immigration tribunals in the UK? That would be pretty bizarre since the applicant would have no right to return to the UK come what may. And you would obviously need an infrastructure of lawyers and legal aid, neither of which exist in Rwanda if the evidence the SC accepted is to be believed.
I say any enforcement would have to be at the instance of the asylum seeker because we can be 100% sure that the UK government will never seek to enforce any treaty in favour of asylum seekers. Any provision which relies on the UK government for enforcement is not worth the paper it is written on.
There’s probably a lot more that one could say but in summary, I don’t see that if there had been a treaty and the other facts had been the same, the SC would have reached a different conclusion.
Your other commentators focus on the proposed legislation to deem Rwanda safe. Actually, despite what Lord Sumption says, this is not such a bizarre or unusual proposition.
Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004 (after listing the relevant countries) says
3(1)This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim [F9(the “claimant”)] may be removed—
(a)from the United Kingdom, and
(b)to a State of which he is not a national or citizen.
[F10(1A)Unless the contrary is shown by the claimant to be the case in their particular circumstances, a State to which this Part applies is to be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—
(a)to which a person can be removed without their Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) being contravened, and
(b)from which a person will not be sent to another State in contravention of their Convention rights.]
(2)A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—
(a)where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
F11(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and
(c)from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.
So this does include a deeming provision. However, as with most deeming provisions, the presumption can be overcome by evidence. So that all that adding Rwanda to the list (apart from discrediting the honesty of the list) would do would be to make each claimant go through the same process of persuading the Home Office or a Tribunal that the Supreme Court’s view was still right.
The list in this legislation can be changed by statutory instrument (Albania is about to be added in this way), so when Sunak says that the making safe of Rwanda will be done by primary legislation this is presumably because he does not want the claimant to have any right to rebut the assumption. Domestically this chicanery would probably work, but it will mean the UK is in breach of its international obligations to asylum seekers. Where the remedy lies for such a breach I don’t know. There may be none. But it would be a particularly disgusting idea when for every other listed country rebuttal is possible. Maybe they want to go the other way which would be to add Rwanda by SI to the list in Schedule 3 and then by primary legislation remove the right to rebut for all countries or Rwanda alone. That would also be highly disreputable but would no doubt get a substantial majority in the House of Commons where mere fripperies like fair treatment are not considered important by a substantial majority.
I would look forward to an analysis of the options for Sunak, what next; and whether, if Sunak can get a Bill through the Commons, it would override the Supreme Court. There seems a populist argument that this has now, like Brexit, become a test of sovereignty.
It’s annoyingly disingenuous when members of the govt refer to the ECHR as a ‘foreign court’ when it’s an international court.
It seems odd that Sunak would have allowed this farcical situation to continue using an MOU instead of a formal treaty unless he was comfortable allowing it to fail putting the ex-HS and her supporters in an awkward position.
Sunak’s proposal to wave a magic wand over Rwanda instead is equally daft and won’t alter the reality of the UNHCR’s opinion either.
The govt know full well the problem of people smuggling cannot be resolved without addressing the root causes, brexit and their closing off legitimate avenues for seeking asylum.
In the meantime, alongside Sunak’s fairy godmother act, we have parades of lawyers dancing on pinheads.
I’ve never known pantomime season to start so early.
I thought the judgement was suitably sound and measured and was bound to elicit the usual cries for reform or removal of the institution which is full of ‘Blairite Europhiles’.
The judgement emphasised the fact Rwanda clearly remains an unsafe country, a view previously expressed by both the government and the UK’s Rwanda High Commissioner.
It seems beyond belief to me, Rishi Sunak subsequently appears to believe emergency legislation by the UK Parliament will miraculously resolve this issue?
I saw that HMG’s immediate response included the proposal of a treaty with Rwanda rather than a MoU. I can understand why a MoU couldn’t reassure a court about anything but I don’t quite follow what difference a treaty with Rwanda makes, so would certainly appreciate a fuller piece from you.
I’m also struggling with another element of HMG’s response, which sounded (I haven’t had chance to read anything on it yet) rather as if legislation was being proposed to declare that Rwanda is a safe place to send refugees to. If you can explain how a piece of legislation could make a country safe which has been established by the SC on the basis of credible evidence not to be safe, I’d be grateful. Or have I misunderstood what HMG proposed?
The Supreme Court’s judgment does not appear to place any emphasis on the fact that the policy was the subject of a Memorandum of Understanding as opposed to a Treaty. They mention the point (of course) but the decision essentially depended on (a) the Refugee Convention (non-refoulment principle) and (b) key evidence from UNHCR abut the actual record of Rwanda.
Can those matters be addressed? Well, the court seems to have indicated (obiter) that maybe they can be.
As for Sunak’s emergency legislation, we need to see the detail (ideally a Bill). Whilst accepting traditional legal theory that Parliament may legislate that the moon is made of green cheese we all know that it is actually made of barren rock ! Legislation cannot change crucial facts.
British governments love to lecture others on matters of international law compliance. They are going to find themselves in problems if they keep on breaching it themselves.
One might ask how could the government be so inept in designing a Rwanda scheme that had a high probability of being found unlawful by the Supreme Court? However are they really that inept? I have come to the conclusion some time ago that the policy wasn’t never designed to actually succeed rather it is a political strategy designed to do two things: 1) to create the impression among wavering voters and Tory faithful that unlike the opposition the government is trying to solve the boat crisis yet is being thwarted by “pick your favourite unelected enemy of the people”, 2) to enable the government driven by the right of the party to credibly (in their view) pull out of the ECHR and thereby set about redefining British citizens rights with a new bill of rights. This strategy relies on the ignorance (I don’t use that word pejoratively) of a large swathe of the electorate in that a lot people simply don’t have the time or the inclination to look through the rhetoric for the facts, evidence, data and of course informed opinion such as this excellent blog. In other words it is clever politics. Sunak’s solution keeps the strategy going. Interestingly I was listen to sky news report shortly after Sunak made his announcement on how the government would respond to the Supreme Court announcement: the reporter mentioned that right wing back benchers were disappointed he hadn’t decided to take immediate steps to withdraw from the ECHR, despite the fact that withdrawing from the ECHR wasn’t going to make a substantive difference to the ruling. Regarding the Rwanda policy itself, even if it is “fixed” to the extent that it is legal, the government’s own estimate of the cost to deport each boat asylum seeker makes it prohibitively expensive and once the electorate realise the true costs, ca £169,000 per migrant, they will be clamouring for the money to be spent elsewhere. See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1165397/Illegal_Migration_Bill_IA_-_LM_Signed-final.pdf
Yes, it seems so. Not least because they act is if the boats are the cause of the problems in the asylum system, when in fact the cause is much closer to home. Spending cuts at the Home Office. Small boat arrivals represent a small fraction of the total.
I can see the rationale. I just don’t think they’re clever enough for that.
I think it’s tempting to believe governments are comprised of clever schemers with nuanced plans & secret agendas, etc, but I suspect 90% of government is crisis-managing the unintended consequences of the failures of the poor policies and badly written laws they allowed themselves to be pressured into previously, by proposing further ill though-out policies and passing similarly badly written (and increasingly little scrutinised) laws ad infinitum?
Listening to James Cleverly I thought that his plan is as follows. Do not say that Rwanda is dead – because that would cause a riot. Do not criticise the judges because that would also cause a riot. Instead promise to work on the problems that Lord Reed identified and give an impression (e.g. by Sunak’s promise pf “emergency legislation”) of urgency.
In meanwhile engage in obfuscation and delay so that while an impression of activity is given in fact not enough progress will be made to sign a treaty so no Bill will be produced this side of the election, by which time it will not be a Conservative government’s problem.
Evidence of a marked gain in political skill.
Spot on & rather cleverly done. Since we can see that the Emperor has no clothes, what else to do but obfuscate, or was that the entire purpose all along.
After all, a House of Lords committee did point out the problems of the policy over a year ago. But then, why expend so much political, parliamentary & financial capital on it? Stubbornness, incompetence or just Ideology? I’m baffled!
David- I am sure many of us would be keen to encourage you to write a detailed piece on the constitutional aspects of this matter and, particularly, why the government might believe its proposed solution (per Sunak’s public comments) is indeed a solution. Many thanks.
Perhaps an SI could be issued to define the UK as an unsafe country for asylum seekers. In that way, could they be persuaded not to come?
A similar approach could be used for economic migrants: if conditions are worse in the UK than the places from which they migrate, the incentive to enter the UK would be removed.
Increasingly draconian measures will not work unless persecution in the UK is worse than the seeker’s place of origin, or a life of abject poverty in the place of origin is better than the potential economic gains of working ( even if illegally ) in the UK.
I would not want to live in a country that is engineered to be worse than asylum-seekers’ and economic-migrants’ countries of origin.
Prison systems in other European countries have a problem with foreign criminals who are on record as telling friends and relatives that they should come, as the worst that would happen is they get locked up where it is warm and dry, you get fed palatable food regularly, and you don’t get beaten up by the guards. The problem is not solved by making prisons worse.
And now the Rwandan government are reportedly refusing to sign the new treaty proposed by the UK government, on the basis that having British officials in their country to oversee their asylum system (to make sure it is compliant with human rights norms) would be a breach of Rwandan sovereignty.
Rwanda Taking Back Control. I’m laughing like a drain.