Unlock the Editor’s Digest for free
Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.
The writer, a former government lawyer, is an FT contributing editor
The UK Supreme Court has held that the Rwanda removals policy is unlawful — but it has deftly done so without depending on the European Convention of Human Rights (ECHR) or the Human Rights Act. Instead, the decision rests on broad principles of international law which are not opposed by the government.
The decision is unanimous. In the summary provided by the president of the court, Lord Reed, extensive reference was made to the other legal obligations that would prevent the UK from removing asylum seekers to a third country where there was a real risk that they could be returned to their country of origin without their application being properly addressed. This is the so-called principle of non-refoulement. In this survey of the applicable law, the ECHR was mentioned only in passing.
Having set up the legal test to be met, the Supreme Court then emphasised the substantial and detailed evidence that had been placed before the court by an intervener in the proceedings, the UN High Commissioner for Refugees. The court was persuaded by this evidence that there was no firm basis for being confident that the Rwanda government would comply with its international obligations. It was not enough for the Rwanda government to assert that it would do so, in the face of compendious material showing that it did not.
This means that it is the UN rather than the ECHR that has provided the practical obstacle to the government’s pursuit of the Rwanda policy, which undermines the attacks on the Strasbourg court in the run-up to today’s verdict. In essence, the UK leaving the ECHR would make little, if any, difference to the appeal decision that was handed down today.
The Supreme Court emphasised, as expected, that this was a legal rather than a political decision. The court was careful to leave open the possibility that the Rwanda policy could be made workable, subject to amendments and refinements. (However, such structural changes are not feasible before the next general election.)
But the court held that, as it stood, the evidence of non-compliance by Rwanda with its international obligations more than offset the (non-binding) assurances the Rwandan government had given in its memorandum of understanding with the UK.
The decision is a surprise in one way: the supreme court under Reed (who succeeded Baroness Hale as president) is considered by many commentators as being deferential on “policy” matters. Although the court under Reed has been assertive about judicial power in respect of compliance by ministers with court orders, it has seemed to leave broader questions of policy to the executive and the legislature. For Reed and the others on the panel to have unanimously gone against the government on a policy question is significant — and remarkable.
The verdict means that until and unless the policy is amended so that there is no real risk of non-compliance by Rwanda with its international obligations, there can be no removals. The courts had already held that any particular removals would have been subject to strict procedural obligations in individual cases; the Supreme Court decision now means that no removals can be lawful.
That the Supreme Court was careful to not depend on the ECHR and left open the possibility that the policy could be made to be lawful does not mean that the court will escape political criticism. It is easier to blame courts and lawyers than get to the heart of the problem, which is the ongoing failure of the Home Office to process the applications in any timely way. The huge costs of this policy, and of the court case, would perhaps have been better spent on improving the ability of the Home Office to deal directly with requests for asylum.
But the departing Home Secretary Suella Braverman may be right in one respect in her letter to the prime minister published yesterday. The government now needs to show it has a Plan B, as its preferred policy cannot be easily resurrected before the next general election.