Photographie de la Cour suprême

The UK’s largely unwritten constitution gives considerable latitude to the Executive to introduce laws or regulations under the all-embracing doctrine of Parliamentary sovereignty. Such latitude is, in theory, subject to the rule of law- morally informed self -restraint on the Executive to uphold the ideals of due process and accountability. The benefits of the rule of law is its theoretical oversight of the moral and political parts of the constitution.

European Convention on Human Rights (ECHR). The rule of law protects the essential principle of an independent judiciary that interprets and applies the law[1].  In that context, judicial protection extends to the rights of asylum seekers[2].  Currently the UK government, with a large Parliamentary majority, is engaged in a policy of “stop the boats”, this refers to  preventing migrants, including those who are trafficked, from illegally crossing the channel from France to England in small boats. The aim of the Rwanda policy is to provide a system of deterrence that will discourage asylum seekers from making the perilous journey across the channel. The legality of the scheme has been the subject of a number of legal challenges. The UK Supreme Court unanimously held that the Rwanda policy was illegal. The reasoning in the case has far reaching consequences for the Government’s overall migration policy.  The question of how the Government will respond  to the Supreme Court’s decision is the subject of intense debate, discussed in this paper.

Asylum Policy: A Short Explanation

The Home Office has responsibility for asylum and the protection of asylum seekers in the UK.  Currently, there are arrangements for asylum applicants to stay in suitable accommodation such as hotels or hostels or designated properties. The National Audit Office (NA) estimates that the number of asylum seekers in the UK is 173,000 and accommodation is provided for over 109,000[3]. Figures released in March 2023, indicate that 75 % of asylum seekers  had waited more than six months for their case to be decided.  Costs are considerable and on current figures,  £3.6 billion was spent on asylum support in 2022-23. This is almost double the amount  in 2021-22[4]. The largest amount of the asylum system is spent on accommodation. The Government launched a new policy  for immigration and nationality in March 2021. The new plan  came about through the controversial Nationality and Borders Act 2022, which became law in effect from June 2022.  The Act provided that a person seeking asylum from a third country  that the Home Office considers safe  would  have their asylum application ruled as inadmissible. Thus the Home Office does not have to consider inadmissible claims but will consider such claims, if it is unlikely the person can be removed to a third safe country within a reasonable period of time. Before June 2023 such claims have been deemed to be legacy claims, with claims after that date considered  newer claims.

The migration and economic development partnership with Rwanda  came through an agreement with Rwanda in April 2022. This allows asylum claims which are deemed inadmissible to be  processed in Rwanda. The policy is intended for those who arrive from Rwanda from France on small boats  that have crossed the English Channel. The Rwanda agreement has been the subject of the legal challenges in the Supreme Court. The current Prime Minister made a pledge in December 2022 to abolish the backlog of initial asylum cases. This policy is highly dependent on the Rwanda Memorandum of Agreement and its implementation, on the basis that such a Rwanda Agreement would act as a deterrent. The assumption is untested and unproven  and further complicated  by the fact  that  Rwanda has limited capacity to process more than  a few hundred cases each year. The choice of Rwanda is a curious  one. In  1994 over 500,000 Tutsi were slaughtered by the Hutu  with the aftermath still leaving a scar on the country. The country has a poor human rights record with controls by the courts weak and often ineffectual. Numerous cases are well documented on human rights abuse in Rwanda by the UN. In international law, the Memorandum of Agreement has little legal standing compared to a Treaty.

The granting of asylum has long been a contentious issue. Estimated numbers of appeals could  quadruple to 75,000 between July 2022 and March 2025. There are delays due to challenges in finding suitably trained personnel, and addressing a large back log. Progress is being made in doubling the number of weekly asylum decisions from 690 ( July 2022) to 1,310 ( April 2023). Despite some progress, the asylum system is facing great challenges, not least because the number of asylum claims is likely to increase, a mixture of global factors such as wars and poverty as well as changes in climate  and global instability. The “Stop the Boats” policy was not a formal policy contained in any election manifesto.

The government has also passed an Illegal Migration Act 2023. The Act further extends the role of the Secretary of State and  allows discretionary powers to remove people who enter the UK illegally after 7th March 2023. The Act also allows the exclusion of any asylum case,  including any claim that removal to a country of origin would be  a breach of their human rights. Detaining migrants under new powers would allow removal to countries that the Home Office considers safe.

The Supreme Court’s decision

The Supreme Court held unanimously that the UK Government’s  Rwanda scheme was unlawful. The Rwanda scheme was a flag ship scheme for the Prime Minister to fulfil his pledge to “ stop the boats.”  At first instance the Divisional Court  accepted that the scheme was legal  based on the willingness of the court to accept that the government’s assurances that the scheme was legal and   that the arrangements to receive asylum seekers from the UK met the UK Government’s evaluation that Rwanda was a safe country in addition there was no real risks for asylum seekers of refoulment to  their own or a safe third country.

The applicants appealed to the Court of Appeal against the Divisional Court’s decision.  The Court of Appeal by a majority of 3 to 2 held that the appeals would be allowed.  The majority’s conclusion held that the Rwanda policy was illegal. The only dissenting decision in the Court of Appeal was given by the Lord Chief Justice.  The government appealed to the UK Supreme Court.

The reasoning in the Supreme Court decision is worthy of  some attention. The main focus is on the legal question of whether or not the Rwanada scheme is illegal.  The assumption underlining the policy is that :” asylum seekers that are removed to Rwanda had an opportunity to apply for asylum  in a safe country  but did not do so ( France) and that Rwanda is another safe country which has agreed to accept them and to which they can therefore be removed[5]”. There are a number of grounds that the Supreme Cour addressed in their consideration of the legality of the Rwanda Scheme. For our purpose this paper is confined to the main findings that make the case particularly controversial  but also of constitutional significance.

Non- Refoulment

This is a principle of international law  which draws on a number of international treaties and agreements. The main principle is a prohibition not only on the direct return of refugees to the country they fear persecution but also their indirect return via a third country. The Supreme Court considered long standing  UK case law on the subject. The issue of  whether there are substantial grounds for believing that the removal of  a refugee to Rwanda would  expose them to a real risk of ill treatment was addressed by the court[6]. The government’s reliance on assurances from the Rwandan government was regarded as inadequate  The question of establishing what is a safe- place to avoid the risk of refoulment  is one that has to be satisfied by evidence that the court  itself regards as satisfactory. The approach of the Supreme Court differed from the Divisional Court ( which upheld the government’s reliance on assurances). The Supreme Court provides considerable detail of the reasons and sources that show that Rwanda is not a safe place to deport asylum seekers[7].  This followed the approach of the majority in the Court of Appeal and not the approach of the Divisional Court. The Supreme Court’s findings are neatly summarised[8], including an analysis of the problems  in the relationship between Israel and Rwanda.[9]

The Supreme Court’s reasoning includes a detailed assessment of Rwanda’s legal system, culture  that casts doubts on whether Rwanda will comply with any of its obligations under the  Refugee Convention. There is no dispute that Rwanda may have entered into the Memorandum of Agreement in good faith. The past and present experience in Rwanda cannot be ignored. Indeed all the evidence available to the Supreme Court gives rise to serious concerns about Rwanda’s ability to fulfil its obligations and deliver  on their international responsibilities. Significantly the Supreme Courts conclusions were reached on the interpretation of International Treaties including Article 3 of the ECHR. It is noteworthy that Some of the claimants argued that retained EU law would assist their claims. The Government argued that retention of the relevant EU law procedures was altered by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.  Thus the decision of the Supreme Court was not dependant on any retained EU law.

Reactions and possible ways forward

The Supreme Court’s finding is that there are substantial grounds to believe that  asylum seekers sent to Rwanda would face ill-treatment as a result of  being returned to their country of origin. Such return is prohibited by a large number of International Treaties and Agreements.  The basis of the finding of possible ill-treatment rested on the evidence of the UN High Commissioner for Refugees of such risks. Indeed concerns about Rwanda  are long standing and the Supreme Court decided that Rwanda was not  a safe place, making the  Rwanda policy illegal.

This has enormous significance for the Government’s policy making. As the Supreme Court  was clear in its ruling, the case is not a comment on the political aspects of the policy, rather a legal analysis of the issues.  The Economist,[10] a weekly newspaper, commented “the  scheme always had an obvious logistical flaw”. The Government claimed that  the numbers Rwanda could take was “ uncapped” but in reality Rwanda could only take  a few hundred each year. The numbers using the small boats had  climbed to almost 46,000 in 2022, from only 299 in 2018. Increased security on ferries, planes and ports  might be one explanation for the figures. Variability in numbers  also may be explained by the changing global instability, which is likely to continue for some time. The costs of the Rwanda scheme are also troubling at $140 million but a relatively small amount of $20 million devoted to improving the asylum system in Rwanda. The other troubling aspect is that asylum claims in the UK are often successful, while this adds to the problem, an inherent contradiction in the Rwanda policy.

The Prime Minister’s reaction to the Supreme Court case was unduly combative.  An emergency law is to be passed  asserting that  Rwanda is a safe place; steps will be taken to block any decisions or cases taken to the Strasbourg European Court of Justice, he would not allow   “ a foreign court”  to block the scheme. Such reaction is highly polarising and speaks to a political group within the Government. Various proposals are to be included in a soon to be agreed new agreement/ Treaty with Rwanda. This will need careful consideration, including additional safeguards.  No one should be under any illusion that this will be quick or easy.   In practice it will be challenging to believe that Rwanda will or can enforce such undertakings.  Historical analysis shows that Rwanda has a poor record on human rights and processing asylum claims is a highly complicated administrative process.  Rwanda has a track- record of removing asylum seekers to their own country including areas of unrest or war. The need for a change in policy and approach is obvious but the government is not showing any willingness to come to terms with the main issues. In fact there have been calls to leave the ECHR and if necessary leave the various International Conventions and Agreements on asylum. Such steps would have many consequences and make the UK an outlier on many human rights issues. There are also implications for the Northern Ireland peace process and the current adoption of the ECHR into the way Northern Ireland is governed.

Lord Sumption,[11] a distinguished recently retired UK Supreme Court Judge, made clear to the news media that he thought that Rwanda was “ not up to the job” he concluded that the government’s plan to deport asylum seekers to Rwanda is “ probably dead.”  The Economist[12], is doubtful that much can be done in time before the next election  to address the problems of Rwanda. The UK will struggle to provide sufficient infrastructure support and training for Rwanda to act effectively and uphold its legal responsibilities.

The doctrine of Parliamentary sovereignty is often called in aid to suggest that the Government is free to act inconsistently with the ECHR and also various orders etc[13]. It is suggested that legislation would declare Rwanda a safe place! This would contradict the finding of the Supreme Court. Such an approach leaves a great gap  complying with the rules and obligations under international law. It would be hard to bind any UK court on issues of finding facts. The combative tone of the response is  not persuasive but it is consistent with some of the rhetoric of the period that surrounded Brexit.  There are also echoes of the two controversial decisions on the use of prerogative powers and the courts approach to interpreting limits on the Executive[14].

There is also a resonance in the approach taken by the Government during Brexit against “woke” judges and “overreach” in the way judicial powers and discretion is operated. Such allegations are highly political and adopted to oppose judicial scrutiny  of discretionary powers. Populist opinions[15] are often attractive  when the arguments are based on the simplistic conjecture that elected governments should not be impeded in policy making by unelected judges. The rule of law suggests that judicial oversight is a  necessary restraint on unbridled executive discretion. In fact the UK constitutional arrangements allows judicial decisions to be overruled by Acts of Parliament. It is rare for Parliament to take such steps.

There are other possibilities rather than confront judicial power. It is possible to look for other safe countries with which to reach agreements. An example that works is with Albania with an agreement that allows Albanian asylum seekers to be returned to their country. Better arrangements with the French government might also be possible and this might ease the crisis on numbers using boats across the English channel. Speeding up consideration of asylum cases might also help.  The problem which is of the Government’s own making is to offer quick fixes  rather than a nuanced debate  that exaggerates the problem as continuous  and requires a variety of  approaches. Arrangements for asylum that are part of agreements with other countries should be improved. Political meddling and tinkering needs to be subject to more technical and skilful administration. This takes time and may indeed provide outcomes  that are acceptable and also compatible with the rule of law.

Conclusions

The government has promised legislation to reverse the Supreme Court’s decision. In constitutional theory this is possible. In the aftermath of Burmah Oil v Lord Advocate[16] the UK government passed the War Damage Act  1965  to overturn the UK House of Lords ( then the Supreme Court) decision in Burmah Oil questioning the government’s use of prerogative powers  for compensation to be paid for the destruction of property necessitated by war. The 1965 Act was passed on the basis of  it being an Act of a sovereign Parliament despite much criticism that the 1965 Act was contrary to the rule of law by overruling the then UK Supreme Court.

Could an Act of Parliament overrule the Rwanda decision? Theoretically, yes, it is possible but it can be argued that the Rwanda example is complicated as it involves not only previous UK case law, but also a fair interpretation of International Treaties and agreements of long standing that are all adopted into UK law. Overriding the decision  of the Supreme Court would clash with existing international law.

There is a further complication. Facts are facts, the finding of facts that Rwanda is not a safe place  agreed by the Supreme Court is difficult to overcome. Contradicting that finding  by assuming or deeming the facts about Rwanda are untrue  is problematical. It would be illogical for an Act of Parliament to assert a patently untrue fact and this would not sit very well with international law.

What makes the Rwanda decision particularly complex is that it is common ground that Rwanda under present administrative arrangements is limited in its ability to process the number of asylum seekers that the UK wishes to send. This would leave many in a desperate  situation of having to wait for long periods before their cases could be heard.  It would have implications for Rwanda’s own International responsibilities under the relevant  Refugee Treaties.

There are also wider ramifications. The UK government has just passed fresh legislation over the Summer, the Illegal Migration Act 2023. The 2023 Act has enormous implications for Asylum seekers. Under the Act, migrants entering the country illegally would be unable  to get a decision on their claim, which rests on their being a safe third country for a claim to be made.  Migration Observatory[17], a Oxford University think-tank, makes the point that “ Rwanda was the government’s only option- all the governments eggs were in that basket which the Supreme Court has crushed.” In essence, this may make implementation of the 2023 Act very difficult or even impossible. It will certainly take time to sort out.

Mired in legal complexity and costly and expensive administration, the more prudent decision might be  for the Government to re-think the Rwanda scheme entirely. Negotiation with more suitable countries might prove a shrewd decision and gain more co-operation internationally.

Underlying the Rwanda agreement is a belief that the Rwanda scheme will act as an effective deterrent to small boats crossing the channel.  That is open to debate.  It would be  better to create a discussion that brings together the different strands of the refugee crisis and finds a humanitarian route to reconcile the politics and economics of providing international support for a common crisis that effects all nations one way or another.

The Rwanda case has also the potential to become a contested debate between the elected ( the executive)  and  the unelected ( Courts) institutions of the Constitution.  This would be consistent with the debate and discussion raised by both Miller decisions over Brexit. This would be unfortunate, especially if there was an attempt to over- ride the Human Rights Act 1998 or leave the ECHR. Such a threat  is very much in the mind of some groups and politicians.  In the run up to a general election, to be held at the latest in January 2015, it can be expected that Rwanda will be much discussed and argued about. The rule of law demands a much more considered debate about policy making and the need to uphold the independence of the judiciary[18].


[1] See Jeffrey Jowell, “ The Rule of Law” in Jeffrey Jowell and Colm O’Cinneide, eds. The Changing Constitution 9th edtion Oxford: Oxford University Press, 2019 pps.3-28.

[2] R( Pankina) V Secretary of State for the Home Department [2010] EWCA  Civ 719. R ( On the application of  Anufrijeva) v Secretary of State for the Home Department [2003] 3 WLR 252.,  HM  Treasury v  Ahmed and others [2010] UKSC 2.

[3] National Audit Office, Report: The asylum and protection transformation programme Session 2022-23 HC 1375, ( 16th June 2023).

[4] This is about 0.5% of GDP.

[5] The Supreme Court  Asylum application, [2023] UKSC 42. At page 4.Lord reed and Lord Lloyd-Jones.

[6]  Case law includes: R. v Secretary of State for the Home Department ex Bugdaycay [1987] AC 514.

[7] The details may be found at pages [2023]UKSC 42 at pages 23-28.

[8] Pages 29-35.

[9] Pages 35-37.

[10] The Economist 18th November 2023, Stopping the planes..

[11] Lord Sumption interview  on  Sunday 19th November 2023  Sky News.

[12] The Economist, “Courting Trouble” 25th November 2023 p. 27.

[13]  In theory section 55 of the Illegal Migration Act 2023 would allow the government to choose whether or not  to comply with rule 39 Interim orders under the European Court of Human Rights. Section 55 is not yet in force

at the time of writing.

[14] See: R ( Miller) v Secretary of State for Existing the European Union [2016] EWHC 2768 and [2017] UKSC 5 , the first Miller case  and see R ( Miller) v The Prime Minister and others [2019] UKSC 41, the second Miller case.

[15] See John McEldowney, “ Populism, UK sovereignty, the rule of law and Brexit” in  Zoltan Szebte and others, eds., Populist Challenges to constitutional Interpretation in Europe and Beyond. Routledge, London,  2020. P.233.

[16] [1965] AC 75

[17] Migration Observatory, Comment from the Migration Observatory at the University of Oxford about the Supreme Court ruling on the UK Government’s Rwanda Policy ( 15th November 2023.

[18] See the Constitutional Reform Act 2005 giving the judiciary protecting the independence of the  judiciary as part of the rule of law.

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