by Professor Devyani Prabhat, the Law School, University of Bristol
The UK supreme court has unanimously ruled that the government’s plan to send asylum seekers to Rwanda is unlawful. Upholding an earlier decision by the court of appeal, the supreme court found that asylum seekers sent to Rwanda may be at risk of refoulement – being sent back to a country where they may be persecuted, tortured or killed. The courts cited extensive evidence from the UN refugee agency (UNHCR) that Rwanda does not respect the principle of non-refoulement – a legal obligation. The UNHCR’s evidence questioned the ability of Rwandan authorities to fairly assess asylum claims. It also raised concerns about human rights violations by Rwandan authorities, including not respecting non-refoulement with other asylum seekers.
It is important to note that the supreme court’s decision is not a comment on the political viability of the Rwanda plan, or on the concept of offshoring asylum processes generally. The ruling focused only on the legal principle of non-refoulement, and determined that in this respect, Rwanda is not a “safe third country” to send asylum seekers.
The ruling is another blow to the government’s promise to “stop the boats”. And since the Rwanda plan is at the heart of its new Illegal Migration Act, the government will need to reconsider its asylum policies. This is further complicated by Conservative party infighting and the firing of home secretary Suella Braverman, just two days before the ruling.
How did we get here?
For years, the UK government has been seeking to reduce small boat arrivals to the UK. In April 2022, the UK and Rwanda signed an agreement making it possible for the UK to deport some people seeking asylum in Britain to Rwanda, without their cases being heard in the UK. Instead, they would have their cases decided by Rwandan authorities, to be granted (or rejected) asylum in Rwanda.
While the Rwanda plan specifically was found to be unlawful, the government could, in theory, replicate this in other countries so long as they are considered “safe” for asylum seekers.
The government has not yet sent anyone to Rwanda. The first flight was prevented from taking off by the European court of human rights in June 2022, which said that British courts needed to consider all human rights issues before starting deportations. A UK high court then decided in December 2022 that the Rwanda plan was lawful.
Ten asylum seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania challenged the high court ruling, with the support of the charity Asylum Aid. Their claim was about whether Rwanda meets the legal threshold for being a safe country for asylum seekers.
The court of appeal said it was not and that asylum seekers risked being sent back to their home countries (where they could face persecution), when in fact they may have a good claim for asylum.
The government has since passed the Illegal Migration Act. The law now states that all asylum seekers arriving irregularly (for example, in small boats) must be removed to a safe third country. But now that the Rwanda deal has been ruled unlawful, there are no other countries that have said they would take asylum seekers from the UK.
What happens next?
It is clear that the government’s asylum policies will need rethinking. Should another country now be designated as a safe country and different arrangements put in place, these will probably be subject to further legal challenges, including in the European court of human rights and in British courts. This ruling is likely to revive discussion about the UK leaving the European convention on human rights (ECHR), which holds the UK to the non-refoulement obligation. Some Conservatives, including the former home secretary Suella Braverman, have argued that leaving the convention would make it easier to pass stronger immigration laws.
But while handing down the supreme court judgment, Lord Reed emphasised that there are obligations towards asylum seekers that go beyond the ECHR. The duty of non-refoulement is part of many other international conventions, and domestic law as well. In other words, exiting the ECHR would not automatically make the Rwanda plan lawful or easier to implement.
The prime minister, Rishi Sunak, has said that he is working on a new treaty with Rwanda and is prepared to change domestic laws to “do whatever it takes to stop the boats”. The UK is not the only country to attempt to off-shore asylum processing. Germany and Italy have recently been considering finding new safe third countries to accept asylum seekers as well.
But ensuring these measures comply with human rights obligations is complicated. International law requires states to provide sanctuary to those fleeing persecution or risk to their lives. As this ruling shows, the UK is not going to find an easy way out of these obligations.
This article was originally published in the Conversation on the 15th of November 2023. You can read the original here.