Category: Migration and immigration

The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

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Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

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Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

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On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

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There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

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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The Illegal Migration Bill is about political theatre, not serious law-making

 7th March 2023

Today we were supposed to see the government’s new Illegal Migration Bill.

According to today’s Order Paper, the Bill was to be presented to Parliament:

A minister told peers that the Bill was to be introduced today:

And there was even a Commons statement by the Home Secretary.

But.

There is no Bill – at least by mid-afternoon today.

This is odd.

That there is a delay was indicated by part of the Home Secretary’s statement:

“Mr. Speaker, I won’t address the bill’s full legal complexities today.  Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”

And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?

The ministerial letter above provides a possible explanation:

Section 19 of the Human Rights Act 1998 provides:

Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.

The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.

Section 19 is an ornament not an instrument.

Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):

“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […]  No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister.  They are not binding on the court, nor do they have any persuasive authority.“

That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.

Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.

More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.

But we cannot know what the Bill says, as it has not been published.

What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:

And this on the Home Office website:

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The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.

For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.

And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.

The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.

And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.

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STOP PRESS

The Bill has now been published.

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How the government won but also lost the court case on Rwanda removal policy

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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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

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The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

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So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

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For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

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Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

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The unforced error by Boris Johnson of publishing the letter to the French President

26th November 2021

Yesterday Nick Fletcher, a little-known member of parliament (with his own taste for time travel), tweeted a daft statement on headed paper about whether casting a female Doctor Who was the cause of a real-world crime surge.

And yet that was not the most stupid thing on headed paper tweeted yesterday by a politician.

The current prime minister surpassed even that missive.

What was stupid about this prime ministerial letter being tweeted was not so much the content – though the content was bombastic and demanding.

The letter had all the quality of an English person outside a Parisian café ordering in English slowly and loudly, with hand gestures.

The real stupidity of the letter was in its tweeting.

And so what then happened was almost inevitable.

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Le whoopsie (with *hand gestures*).

There are two observations to make about this latest pratfall.

The first is personal to the current prime minister: there is no policy predicament so bad that it cannot be made worse by his intervention.

This is yet another unforced error by perhaps the greatest political manufacturer of unforced errors.

The second is that it demonstrates a tension – if not a contradiction – at the heart of Brexit and post-Brexit politics and policy: the political need for the United Kingdom government to play to its domestic audience and the policy need for it to cooperate with European states.

Often the United Kingdom government gets away with it, as those in Europe care little or nothing about the front pages of British newspapers.

But in this instance, the play for the domestic audience was at the direct expense of cooperation.

The café door has slammed shut.

And the loud English man is left outside gesturing to nobody in particular, while trying to assure himself that nothing has gone wrong.

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