Conor Casey is Senior Fellow with Policy Exchange’s Judicial Power Project and Associate Professor of Public Law at the University of Surrey School of Law.
Yesterday the Supreme Court ruled that the Government’s Rwanda asylum plan is unlawful. The pressing question today is how the Government should respond to the judgment and whether any part of the Rwanda plan is salvageable. The answer is that changes can be made which would make it possible to remove asylum seekers to Rwanda and thus discourage further channel crossings.
The Rwanda plan, grounded in the Migration and Economic Development Partnership (“MEDP”) agreed between the UK and Rwandan governments, commits the UK to a policy of outsourcing asylum claims. What this means is that the UK proposes to treat Rwanda as a safe third country, to remove asylum claimants to its territory, and to allow Rwandan officials to process their claims and, where appropriate, offer protection to those with a well-founded fear of persecution in their place of origin.
The Court’s judgment rejects the premise that Rwanda is a safe country, which means that it is, for the time being, unlawful to send asylum seekers to Rwanda. In reaching this conclusion, the Court leaned very heavily on evidence from the United Nations High Commission for Refugees (UNHCR) that Rwandan officials lack the competence, expertise, and independence from political interference to do their jobs properly.
The UNCHR had bitterly opposed the asylum plan from the start and its intervention in the litigation seems to have been critical. The Court was persuaded that there was a substantial risk that asylum seekers removed to Rwanda could have their claims mishandled and, consequently, might be deported to a country where they would be subject to inhumane and degrading treatment. This, the Court held, was contrary to the principle of non-refoulement that is protected via a range of statutory provisions, including the Human Rights Act 1998.
While this judgment is a major setback for the Government, it is not the end of the story. The Court has left it open to the Government to hold onto the core of the Rwandan policy – the settlement of asylum-seekers, especially genuine refugees, in a safe third country – by accepting that administrative and logistical changes could be put in place to eliminate the risks it highlighted. There is no reason why the Government cannot speedily respond and make a policy of removal to Rwanda workable.
One option is to secure better and more rigorous assurances from Rwanda, revising the MEDP. Specifically, a revised agreement might provide for more robust UK involvement in monitoring the Rwandan asylum system or even provide that there could be no onward removal from Rwanda without UK consent or involvement, including an opportunity for the UK to make alternative arrangements. This would address the Court’s concern that asylum-seekers will be removed to a country where they face persecution. The question that remains is whether the Court would be satisfied by such further assurances or arrangements. The Court should be satisfied, but in view of its scepticism about Rwanda’s capacity to honour its commitments, any changes will have to be clear and compelling.
Another option is for the Government to press ahead with offshoring rather than outsourcing. Policy Exchange has repeatedly argued for the former, in part because it is less exposed to legal challenge. A policy of offshoring would mean arranging for Home Office personnel to process claims outside the UK, whether in Rwanda or a British overseas territory, with refugees resettled in Rwanda – and in other third countries – subject to assurances about treatment consistent with the Refugee Convention. The Supreme Court’s judgment does not rule out settlement of refugees in Rwanda. They would not be in danger in Rwanda itself. Rwanda is not a safe country, according to yesterday’s judgment, because of the risk that Rwandan officials would mishandle asylum claims. This risk is avoided if UK officials process asylum claims.
In his press conference last night, the Prime Minister outlined a course of action that seems to involve making important changes to the arrangement with Rwanda, in response to the Supreme Court’s judgment, and enacting emergency legislation to establish authoritatively that on these terms Rwanda is a safe country. This is a welcome direction of travel. The problem with the Government’s approach to date has partly been its failure to secure the express parliamentary authorisation that is needed to deliver a controversial policy in the face of repeated legal challenges. Policy Exchange has consistently maintained that specific legislation is required to mandate a policy of removal.
If Rwanda makes a binding commitment not to remove asylum-seekers to another country, the Supreme Court’s concern is addressed. It would be reasonable, in these circumstances, for Parliament to enact legislation that settles that Rwanda is a safe country and that asylum-seekers may be removed to Rwanda – much as unlawful migrants may be returned to European states. Such legislation would authoritatively settle the point, ruling out further legal challenge, in Britain at least, questioning whether removal to Rwanda is lawful. Legislating in this way would be a reasonable exercise of Parliament’s authority and would not breach international law.