Our Dean of the School of Law and Social Justice, Professor Valsamis Mitsilegas, reflects on this week’s decision by The Supreme Court to rule the UK Government’s policy to deport asylum seekers to Rwanda unlawful:
The background to this ruling came from an appeal concerned with the Home Office’s policy that asylum seekers in the UK shouldn’t have their claims considered in this county but should instead be sent to Rwanda to claim asylum there. Their claims would then be decided by the Rwandan authorities, and if their claims are successful, they will be granted asylum in Rwanda.
This policy is based on a Memorandum of Understanding between the two governments, but it’s important to note, a MoU is not binding in international law. In a unanimous ruling, The Supreme Court held that the UK-Rwanda scheme is does not abide by the principle of non-refoulement under international human rights law. The principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment of punishment and other irreparable harm.
Three key strands were listed in the Court’s reasoning behind declaring the Rwanda policy unlawful: 1) the legal foundations of the principle of non-refoulement; 2) the assessment of Rwanda as a safe third country; and 3) the role of the judiciary in scrutinising government assessments on declaring third states as safe.
Firstly, the Supreme Court emphasised that the principle of non-refoulement is engrained in a multitude of international laws that are binding on the UK, for example, the Refugee Convention; the United Nations Convention against Torture and Other Cruel, Inhuman, of Degrading Treatment or Punishment of 1984; the United Nations International Covenant on Civil and Political Rights of 1966; and the European Court of Human Rights.
The Supreme Court concluded that the principle of non-refoulement is given effect, not only by the European Court of Human Rights, but also by the many other international conventions to which the United Kingdom is party and that is a core principle of international law, which the UK has repeatedly committed itself on the international stage.
Also, under domestic law, asylum seekers are protected against refoulement by a variety of legal sources: not only by the Human Rights Act, but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which Parliament has given effect to the Refugee Convention as well as the European Court of Human Rights.
Secondly, in the assessment of Rwanda as a safe country, The Supreme Court held that there are concerns which relate to the asylum process itself and concerns about the willingness of the judiciary to find against the Rwandan government. The Supreme Court also noted a risk in the lack of independence in politically sensitive cases, not only in the judiciary, but in access to independent legal advice and an absence of legal representation.
There are also concerns related to the outcome of the asylum process. Evidence from the United Nations High Commissioner for Refugees (UNHCR) showed 100% rejection rates during 2020-2022 for nationals of Afghanistan, Syria, and Yemen, from which asylum seekers removed from the UK may well originate. There was also found to be a surprisingly high rejection rate for claimants from known conflict zones.
By comparison, Home Office statistics for the same period show that asylum claims in the UK were granted in 74% of cases from Afghanistan 98% of cases from Syria, and 40% of cases from Yemen.
The Supreme Court continued with a passage of very strong wording which is important to quote:
“The Secretary of State advances a somewhat surprising argument to the effect that it does not matter if asylum claims are not processed correctly, because asylum seekers will not be subject to refoulement in any event. In relation to that argument, we note that if an asylum claim is wrongly rejected, and the asylum seeker does not have some other entitlement to remain in Rwanda, the government of Rwanda undertakes under paragraph 10.4 of the MOU to remove the person only “to a country in which they have a right to reside”. That country will normally be the country of which the asylum seeker is a national or citizen: that is to say, the country which he has fled, and in which he faces persecution”.
In conclusion, The Supreme Court established that there are substantial grounds for believing there is a real risk that asylum claims will not be determined properly, and that asylum seekers will be at risk of being returned directly or indirectly to their country of origin. This means genuine refugees will face a real risk of ill-treatment in circumstances where they shouldn’t have been returned at all.
Finally, the key question underpinning the Rwanda litigation has been to what extent can the judiciary scrutinise executive decisions and assessments that have human rights implications. In this case, this refers to the assessment by the UK government that Rwanda is a safe third country. This question is fundamentally a rule of law question, testing the extent to which the executive is bound by the rule of law. The Supreme Court did not accept the government’s suggestion that Rwanda is a safe country, placing particular weight on the assessment made by the UNHCR, due to its institutional position and expertise.
The Supreme Court’s conclusion is extremely important for upholding the rule of law. It sets executive action within the parameters of meaningful, independent, evidence- based judicial review focusing on the protection of human rights on the ground.
The government’s reaction to the Supreme Court ruling, and proposals to pass emergency legislation designating Rwanda as a safe third country, blatantly disregard both the substance and the spirit of the Supreme Court’s ruling. The passage of emergency legislation in those terms is a challenge to the rule of law in ignoring the key findings at the heart of The Supreme Court’s ruling. The judiciary may be called to intervene again.
Professor Mitsilegas has also written a long read about the issue which can be accessed here.
You can read the Supreme Court’s Judgement in full here.