Unpacking the Supreme Court’s Rwanda decision - UK in a changing Europe

Joelle Grogan examines the recent ruling of the UK Supreme Court about the government's practice of sending asylum seekers to Rwanda for processing of their claims and allowing them to stay if their claims were successful, concluding that it is illegal. She breaks down the Court's argument and ponders the next moves for the government with regards to deporting asylum seekers to other countries.

The UK Supreme Court ruled on November 15th, 2023 that the government's 'Rwanda Policy' breaks the law. The Court of Appeal's decision was also supported by all judges on the UKSC.

The main issue presented to the Court was whether Rwanda was a secure place for refugee seekers, who want to have their plea processed and, in case they won, settle in. Both parties accepted the legal principle that refugees cannot be sent back to a country where they might face danger, either to their life or freedom (or 'non-refoulement'), and that they cannot be transferred to a third country where there is a high probability of being returned to a place where they will face such risks.

The Court emphasized that the principle of non-refoulement is included in multiple global agreements and pacts that the UK is obligated to follow, such as the UN Refugee Convention, the International Covenant on Civil and Political Rights 1966, and the European Convention on Human Rights. Additionally, the Court outlined the laws passed by the UK Parliament that include the principle of non-refoulement in the country's legal system.

The Court has determined that non-refoulement, which means not sending a person back to a place where they may face harm or persecution, is a very important rule that all countries must follow. The United Kingdom government has promised to follow this rule many times in front of other countries, showing that they prioritize fairness and justice.

The Supreme Court determined that Rwanda is an unsafe country, where refugee seekers are likely to face refoulement. This decision was based on the United Nations' report about Rwanda's human rights violations. The report also showed that the UK police had to warn Rwandan nationals in the United Kingdom about the dangers they were facing from the Rwandan government.

The Court found the problems within the Rwandan legal system to be very worrying. It appeared that judges were vulnerable to political interference, legal counsel might not be available, and while people had the right to challenge a court decision, there was no evidence that anyone had done so.

The Court expressed worries about the unfair processing of some asylum-seekers. They noticed that individuals from particular war-stricken countries received a 100% refusal rate when applying for asylum in Rwanda, while those same nationalities were often approved as refugees in the UK. For instance, Afghanistan has a 98% approval rate and Syria has a 99% approval rate for asylum applications.

The UK Supreme Court did not believe the Rwandan government's guarantees, even if they were given honestly. There were 100 cases of refoulement, which the United Nations documented, even after the UK and Rwanda had reached an agreement. The Court questioned Rwanda's dedication to meeting its international responsibilities, just as it did with a similar agreement that Rwanda had made with Israel from 2013 to 2018.

Even though the Israeli agreement specifically promised not to return refugees against their will, there was proof that Rwanda had secretly transported them from Israel to a nearby country where they faced the danger of being sent back to their home country.

Based on the substantial proof indicating that Rwanda was not a secure place, the Court ruled that it would be illegitimate for the UK to transfer individuals to that country.

One of the most expected parts of the decision was that the UK will no longer be following the EU's laws about asylum seekers because of Brexit regulations. The EU demands that before sending an asylum-seeker to a third country, it should be safe and they should have a connection to that country. In contrast, the UK (and also the international law) only requires that a third country is safe.

We need to emphasize that the ruling doesn't declare the strategy of transferring asylum-seekers to another nation where their applications are examined as illegal, but just states that Rwanda is not presently a secure country to do so.

The court focused solely on whether Rwanda is a safe third country, but this decision indirectly addressed the on-going political argument ignited by former Home Secretary Suella Braverman about whether the UK should withdraw from the ECHR.

The Court made it clear that relying solely on the ECHR for protection against being forced to return to a dangerous country is not the only option. This suggests that even if the UK no longer adheres to the ECHR, it still has a responsibility under other global agreements and its own laws to ensure the safety of asylum-seekers and prevent them from being sent back to hazardous situations.

So, what comes next? The recently appointed Home Secretary, James Cleverly, has revealed plans to enhance the current agreement with Rwanda by creating a new treaty that addresses concerns. This treaty would include a clause specifying that individuals sent to Rwanda cannot be transferred to any other country, ensuring their return to the UK. Nevertheless, according to current UK legislation, individuals sent to a third country cannot come back to the UK. There are still no details regarding the terms of the treaty, necessary modifications, and whether Rwanda would accept them.

The leader of the government also gave a reply to the decision by saying that he plans on creating an urgent law that will announce Rwanda as a secure nation. Additionally, he mentioned that this rule would not be hindered by the European Court of Human Rights (ECtHR) or any other court. It is important to note that no judicial branch, including the ECtHR, has the power to nullify a Parliamentary Act.

The task for the government is to determine whether this proposal will be enacted as legislation prior to the upcoming election. Though the bill may be approved promptly by the government's majority in the Commons, the Lords' schedule is beyond their control, and they may scrutinize or postpone the bill's passage.

A law stating that Rwanda is secure wouldn't release the UK from its duties under worldwide law. UK and Strasbourg courts might still rule that this law breaches human rights. Yet, the law would still be in effect. The actual result of passing such a law would be detrimental to the UK's positive record on human rights and reputation for following its global commitments.

The UK's only immediate option is to come to terms with a nation that is secure (which it is currently attempting to do). A total of 56 countries (8 of which are solely for males) are classified as safe according to the Illegal Migration Act- but so far, the UK has only reached an agreement with Rwanda. Many of the countries on the list are grappling with their own migration issues, making it unlikely for them to take in individuals seeking asylum from the UK. Hence why, until they work things out with Rwanda, no one gets deported.

Rewritten: Senior researcher Dr. Joelle Grogan from the UK in a Changing Europe provides insights.

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