Britain’s Supreme Court ruled on Wednesday that a policy to deport asylum seekers to Rwanda is unlawful, delivering a major blow to the Conservative government, which has long described the plan as central to its pledge to stop small boat arrivals.
Justice Robert Reed, one of the five judges who heard the case, said that the court supported an earlier decision by the Court of Appeal declaring the policy unlawful, saying simply, “We agree with their conclusion.”
Justice Reed pointed to a risk of “refoulement” if asylum seekers had their claims heard in Rwanda, meaning that genuine refugees could be returned to their countries of origin and face potential violence, in a violation of both domestic and international law.
The judge made the caveat that while proper protections may be put in place in the future, bu “they have not been shown to be in place now.”
The ruling is the latest setback for Prime Minister Rishi Sunak after a turbulent few days in which he fired his disruptive Home Secretary, Suella Braverman, whose remit included overseeing immigration, and brought a centrist predecessor, David Cameron, back to government.
The hard line Rwanda policy was first announced in April 2022 by then Prime Minister Boris Johnson as he attempted to make good on a Brexit campaign promise to “take back control” of the country’s borders. Mr. Sunak promised to pursue the policy in his campaign for the Conservative Party leadership, and championed the initiative alongside Ms. Braverman, one of its most outspoken advocates.
But it was widely criticized by rights groups and opposition politicians from the start, with many pointing to Rwanda’s troubled record on human rights.
It has since been pursued by Mr. Johnson’s successors, Liz Truss and Mr. Sunak, with each repeating his original untested argument that the threat of being deported to Rwanda would deter the tens of thousands of people who try to cross the English Channel in small boats each year.
To date, no one has been sent to the small East African nation, because of a series of legal challenges.
The first flight deporting asylum seekers to Rwanda was scheduled for June 14, 2022, but it was grounded because of an interim ruling by the European Court of Human Rights in Strasbourg, which said that an Iraqi man should not be deported until his judicial review had been completed in Britain. As a signatory to the European Convention on Human Rights, an international agreement that Britain helped draft after World War II, the country accepts judgments from the Strasbourg court. (Both the court and the Convention are entirely separate from the European Union.)
Last December, Britain’s High Court ruled in favor of the government, determining that the Rwanda plan was lawful in principle and consistent with legal obligations, including those imposed by Parliament with the 1998 Human Rights Act.
But in June, the Court of Appeal ruled that Rwanda was not a safe third country, and that there was a real risk that asylum seekers would be returned to countries where they faced persecution or other inhumane treatment, even if they had a good claim for asylum. That would represent a breach of the European Convention of Human Rights, the court said. This is the ruling that was upheld.
The case came to Britain’s Supreme Court last month when five judges heard arguments from the government and from opponents of the plan over three days. Justice Reed said the judgment had been expedited because of its public importance.
At the hearing, Raza Husain, a lawyer representing 10 asylum seekers from a number of conflict zones, argued that Rwanda’s asylum system was “woefully deficient and marked by acute unfairness.”
James Eadie, who represented the government, argued that while Rwanda was “less attractive” than Britain, it was “nevertheless safe” for the asylum seekers, pointing to assurances made in the agreement between the two countries.
Angus McCullough, a lawyer for the United Nations refugee agency, told the judges it “maintains its unequivocal warning against the transfer of asylum seekers to Rwanda under the UK-Rwanda arrangement,” the Guardian reported. He cited evidence that a similar policy pursued by Israel had led to the disappearance of some asylum seekers after they arrived in Rwanda.
The ruling comes at a time of intense political turmoil in the Conservative Party, which has held power for 13 years and is lagging in the polls.
Ms. Braverman was fired on Monday after igniting a political firestorm over comments that homelessness was a “lifestyle choice.” She also criticized the police over a pro-Palestinian march in London. It will now be up to her successor, James Cleverly, to oversee the response to the Supreme Court decision, just two days after he was appointed.
Ms. Braverman had been an outspoken proponent of the deportation plan, once saying that it was her “dream” to see asylum seekers sent to Rwanda. She has also argued that Britain should be prepared to overhaul or even leave the European Convention on Human Rights. In an excoriating letter to Mr. Sunak on Tuesday, she accused him of betraying a private promise to use legislation to override the convention, the Human Rights Act and other international law that she said “had thus far obstructed progress” on stopping the boats.
Hours after her firing on Monday, Robert Jenrick, Britain’s immigration minister, seemed to signal that the government would not simply accept a Supreme Court decision to strike down the policy. “We have to ensure the Rwanda policy succeeds before the next general election,” he told The Telegraph. “No ifs, no buts, we will do whatever it takes to ensure that happens.”
Rashmin Sagoo, the director of the international law program at Chatham House, a British think tank, said that withdrawing from the European Convention, while still a fringe notion, “will continue to be the ball that gets played,” particularly with a Supreme Court ruling against the government.
“From my analysis, it’s a really odd and unconvincing proposition,” she said. “But it’s got really serious implications which require deep scrutiny.”
