Today’s ruling by the Court of Appeal against the Rwanda policy is a setback for the Government – but not a fatal blow to the policy.
By two to one, the three judges overturned a previous decision in the High Court and declared that Rwanda cannot be considered a “safe third country”, due to the risk that refugee applicants from places like Afghanistan and Syria could end up being wrongfully returned to their country of origin.
Rishi Sunak has announced that the Government will be appealing to the Supreme Court. Had it won, those challenging the policy would have done so. Thus, in one sense, the actual timeline of events might not have actually changed very much – and with the Government as the appellant, the case might proceed a little more quickly than otherwise, given that the other side would have every incentive to drag matters out.
Nor is it beyond the realms of possibility that the Government might win at the Supreme Court. It won in the High Court, after all.
Moreover, in making its decision the Court of Appeal seems to have made quite a remarkable decision about the High Court judgment, essentially that it fundamentally misunderstood its proper function. Starting in par. 479 of today’s judgment, Lord Burnett explains in his dissent why he finds this implausible. From par. 480:
“It would indeed be remarkable if the Divisional Court failed to appreciate that its function, when considering article 3 risks (both arising from refoulement and conditions in Rwanda itself), was to make an assessment for itself. It could properly be described as the most basic of errors in an ECHR based claim. It would be all the more remarkable given the composition of the court.”
Of course, there is nothing to stop the Supreme Court interpreting things howsoever it pleases; it overturned a perfectly sound and orthodox judgment of the High Court in order to arrive at its decision in Miller II. But this is no longer Lady Hale’s Supreme Court.
And that is the only plank upon which the Government needs to win; as the Times notes:
“The government lost on one, albeit central, plank of the appeal but the three judges unanimously rejected all other grounds of appeal pursued by Asylum Aid, the charity that brought the appeal along with lawyers for ten individuals seeking asylum.”
Beyond that, the other heartening thing for the Government is that this defeat once again hinged on technical questions vis-à-vis Rwanda’s capacity to apply the safeguards necessary for the scheme to be lawful. It has not ruled that the policy is inherently unlawful, or incompatible with the Refugee Convention, or any of the other arguments adduced by those seeking to get the whole thing thrown out.
That suggests that whilst it may take an arduous process of lawfare, the Government ought to be able to get the Rwanda policy over the line, if it has time and energy enough. Whether it will be able to get it operational in time to reap any electoral dividend for it next year is another matter.
Where does this leave the Conservatives’ internal debate about the European Convention on Human Rights?
So far, it looks as if the rebels who tried to amend the Illegal Migration Bill broadly accept the reasoning set out above: that ministers need to focus on getting the necessary refinements and additional guarantees in place to get the policy over line under our current arrangements. There has been relatively little arguing that the decision means we have to withdraw.
Over the longer view, what this case illustrates is how membership of the ECHR limits any government’s practical freedom of manoeuvre.
Parliament is sovereign, and can indeed legislate to any effect it wishes. But historically governments have proven extremely unwilling to simply accept a declaration of incompatibility (even prisoner votes saw an eventual compromise).
Without that the Convention (which is not just a text but an ever-expanding body of Strasbourg law) will continue to channel policy down certain channels of least resistance, and throw up huge (if not technically insurmountable) obstacles to any policy which seeks to strike out in a different direction. Especially in cases such as this, where the scheme is being taken forward using secondary legislation and immigration rules, and thus the courts can simply strike it down.
And the longer this regime endures, the greater the influence it will have on our domestic courts, as the body of domestic law and precedent which reflects the ECHR regime increases, and our judiciary internalise its principles.
That, however, is a big-picture debate which will probably have to wait for opposition. For now, the Government’s defeat on this particular issue should be seen as tactical, rather than strategic. The Rwanda policy can be lawful; the task at hand is making sure that it is.