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With a unanimous legal blow, the UK Supreme Court toppled the central pillar of the Conservative government’s plan to deliver one of its top political promises: to “stop the boats”. Justices ruled that deporting to Rwanda some asylum seekers arriving from across the Channel was unlawful — since there was a real risk genuine refugees would be sent back to the countries they had fled. Prime Minister Rishi Sunak’s plan to try to neutralise this ruling and rescue the government’s policy by introducing emergency legislation, and if necessary to defy European judges, is entirely misconceived. The decision by Britain’s highest court should end the idea of transporting migrants to Rwanda, or any third country.
The “small boats” are a very human problem; dozens have died making the hazardous crossing. But the Conservatives have blown it into a political issue out of all proportion to the number of asylum seekers. The inability to curb the tens of thousands arriving annually has become a visible sign of the failure to “take back control” of Britain’s borders after Brexit as was promised. Showing it can control irregular migration is vital, too, if the government is to make the necessary case for regulated migration to fill skills gaps.
After spending 18 months and £140mn chasing an idea that was legally and morally dubious from the outset, the government finds its plans in disarray. The Illegal Migration Act, which in theory lets the government remove from Britain anyone arriving by small boat 28 days after arrival, is unworkable without a safe place to send them. Deporting some migrants to Rwanda was intended to deter others. But evidence presented by the UN refugee agency persuaded the Supreme Court the risk of Kigali forcibly repatriating them to countries where they might be persecuted was too high.
The prime minister says he will upgrade Britain’s agreement with Rwanda to a treaty, providing a legal guarantee that vulnerable asylum-seekers will not be returned to their countries of origin. He also plans emergency legislation that he says will allow parliament to “confirm” that, through this treaty, “Rwanda is safe”. This does not, however, address the root of the Supreme Court’s concerns.
The legal possibility of finding another third country remains open; Italy, a main EU entry point for migrants, recently agreed to build two centres in Albania to house those trying to reach its shores. Yet agreeing another destination would take time, and might hit similar legal hurdles. “Outsourcing” migrant handling has a poor record. Centres that Australia ran for years in Papua New Guinea and Nauru proved highly politically divisive, with rights groups pointing to numerous abuses.
The small boats problem has no easy solution. But the government should put its focus back where it should always have been: on collaborating with its European neighbours. It should work with France to set up proper processing centres across the Channel. Joint efforts are needed with France, Belgium, the Netherlands and Germany to stamp out trafficking networks. As part of such co-operation, it could seek the right to return would-be asylum seekers who have passed through another EU state back to that country, which it lost post-Brexit. And it should open more legal corridors to the UK, including from refugee camps.
Conservative rightwingers have said Britain should leave the 46-member European Convention on Human Rights to give it a “free hand” on migrants. The Supreme Court was clear, though, that the legal basis for its decision was not just the ECHR but other treaties, including the 1951 Refugee Convention — which Britain was among the first to sign. Pulling out, or disapplying these through legislation, would do immense damage to the UK’s standing, and be a gift to the world’s autocrats.
The European convention, moreover, is vital to the functioning of other accords important to the UK — including the Good Friday Agreement that underpins peace in Northern Ireland. If it is serious about stopping the boats, the government should waste no further time trying to save an unworkable Plan A. All its efforts should now go into pursuing attempts, together with its European partners, to create a Plan B that is both legal and workable.
This editorial has been updated since first publication