All eyes were on the Supreme Court last Wednesday when it handed down its ruling on the lawfulness of the government’s much-criticised Rwanda scheme. The judgment featured a number of important issues (including issues relating to retained EU law) but the key question for the Court was simple: would sending individuals making asylum claims in the UK to Rwanda – to make asylum claims there instead – subject them to a real risk of ill-treatment? The Supreme Court’s answer was that it would. The government’s policy was therefore unlawful.
The decision rested on the non-refoulement principle: very broadly, that individuals seeking asylum cannot be returned to their country of origin if they would face significant ill-treatment there. The Court found – unanimously – that should the UK send individuals to Rwanda under the proposed scheme, they would be at a “real risk” of being subjected to ill-treatment due to refoulement. The evidence accepted by the Court was set out in its judgment and is well worth reading (considerations of particular relevance include Rwanda’s history of failing to take asylum claims and refoulement seriously, its history of reneging on similar agreements, and its own poor human rights record: see - and the fuller detail in the judgment of the Court of Appeal).
Of particular note is the Court’s insistence that non-refoulement principle upon which it relied was not exclusively derived from the European Convention on Human Rights (ECHR); rather, it was an important part of not only much international law but, crucially, domestic primary legislation as well. This is important and provides a valuable riposte to those who might wish to blame this judgment on the ECHR specifically or on international law generally.
The announcement of the Court’s judgment garnered a swift and predictably hostile response from both the government and its supporters, with Prime Minister Sunak immediately doubling down on his commitment to “stopping the boats” notwithstanding the Supreme Court’s judgment. He has promised to work night and day to do so, but exactly what he will be working on has not yet emerged, despite a number of options being mooted in speeches, interviews and leaks over the past days.
The immediate suggestion was that the government would assuage the Court’s concerns through a new treaty with Rwanda. However, as noted above, the reason for the Court’s judgment wasn’t some technicality with the memorandum of understanding: the problems with Rwanda and its asylum system run deep. The changes required are radical, and would likely be impossible to secure by mere political assurances.
A more hardline response threatened the disapplication of the HRA or some kind of ECHR carve-out. It is easy to see why some opponents of the ECHR have jumped on this opportunity to promote their usual cause. But given that the Court was at pains to emphasise that its ruling was based not just on the ECHR, but on other laws (including domestic legislation) neither disapplying nor leaving the ECHR would provide the government with the solution it claims to be seeking.
A third mooted option is to pass primary legislation deeming Rwanda a safe country, presumably for the purposes of specific legal challenges. This is, to put it lightly, legally knotty (involving the translation of a question of fact into a question of law for judges to determine) and it is difficult to see how domestic stipulation of such ersatz facts could affect the scheme’s compliance at the international level.
The fourth, most outlandish, possibility is the adoption of the kind of all-encompassing Armageddon Ouster recently proposed by Suella Braverman in The Telegraph, insulating the Rwanda plan from any conceivable domestic, international law, or common law challenges by any court. Despite being branded “dictatorial” by Braverman’s former colleague, the suggestion is apparently being taken seriously by the Prime Minister. The problems with this option hardly need spelling out. Were such a law to reach the Courts, it would ignite the kind of constitutional clashes long thought to be the exclusive domain of academic textbooks. Those hoping that Lord Carnwath’s comments in Privacy International – indicating that the enforceability of an ouster clause “should remain ultimately a matter for the court to determine” – have been wheedled away in an era of greater judicial restraint will be disappointed to note that the same sentiment has recently been endorsed in the High Court, with Fordham J confirming that “Parliament… can undoubtedly influence the scope and shape of judicial review… the final arbiters of whether and how that operates are the Courts”.
As such, there are good reasons to doubt that Sunak could conjure some straightforward legal solution to get around the Supreme Court’s judgment. And there are, of course, massive political obstacles to implementing any of these routes, especially with an election on the horizon. Nevertheless, the Prime Minister remains committed to the policy. Of course, that which is legally hopeless can remain politically useful: “stop the boats” continues to provide a populist soundbite attractive to certain parts of the electorate. Sunak might be able to convince voters that he can yet outfox the Europeans, the judges, and the ‘lefty-lawyers’. But his trick may backfire if becomes clear that he has nothing up his sleeve.