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The UK Supreme Court has ruled that the government’s Rwanda migration scheme is unlawful, delivering a severe blow to Prime Minister Rishi Sunak’s flagship policy aimed at halting irregular Channel crossings.
Five judges on Wednesday ruled unanimously that asylum seekers removed to the east African country would be at real risk of then being sent on to their home countries without proper assessment of their claims.
What were the justices asked to rule on?
Under immigration rules, asylum seekers whose life or freedom is threatened in their country of origin can only be removed from the UK if they are not at risk of being returned to that country, a principle called “non-refoulement”.
The Rwandan government gave London assurances that it would respect the principle and was a safe third country to which asylum seekers could be removed. But the UN Refugee Agency firmly opposed the arrangement.
The Supreme Court had to determine whether there were “substantial grounds” for believing that asylum seekers sent to Rwanda were threatened with forcible repatriation to their home country even if they were at risk of mistreatment.
On what grounds did the judges reach their decision?
The court noted a memorandum of understanding between the UK and Rwandan governments over asylum seekers was not legally binding.
While the UK argued Kigali could be relied on to comply with it, citing financial incentives among other measures, the UN Refugee Agency warned there were “serious and systematic defects” in Rwanda’s processing of asylum claims.
The Supreme Court said the High Court, which heard the case initially, had “failed to give proper consideration” to the UN’s evidence and the Court of Appeal was right to overturn its decision.
The Supreme Court pointed to evidence that Rwanda had failed to comply with commitments to respect “non-refoulement” in a similar agreement reached with Israel.
It also pointed to evidence provided by the UN that 100 per cent of the claims made by asylum seekers from the war-torn countries of Afghanistan, Syria and Yemen had been rejected by the Rwandan government.
The Supreme Court said there was “a serious question” about whether undertakings given by Rwanda can “be relied on”.
What options does the UK have to pursue its removal policy?
As far as Rwanda is concerned, Sunak’s courses of action are limited. While the court did leave open the possibility that the “changes needed to eliminate the risk of refoulement may be delivered in the future”, some lawyers said the judgment in effect killed the policy.
Sunak has asserted that the Rwanda plan can still be achieved. He said the government was working on upgrading the memorandum of understanding with Kigali into a binding treaty, and had already begun to address the courts’ concerns about Rwanda’s asylum process.
The prime minister also told MPs he was prepared to rip up domestic law and international agreements to make the Rwanda deal happen.
However, critics pointed out that it will take months for such a treaty to be ratified by parliament and any attempt to remove migrants again would almost certainly be met with further legal challenges that could last up to 18 months.
Nick Rollason, head of immigration at Kingsley Napley, said the “overwhelming evidence” before the court was that “Rwanda could not be trusted to implement a fair asylum process” for all claimants. The notion that a new agreement with the UK could address such concerns was “pie in the sky”, he said.
MPs on the right of the Conservative party have called for the UK to leave the European Convention of Human Rights or produce emergency legislation to give the government power to over-rule international laws on matters relating to migration.
The UK does not have returns agreements in place with countries in the EU since it left the union.
The Labour party has vowed to scrap the Rwanda plan if it comes to power in the general election expected next year.
Where does this leave Sunak’s pledge to ‘stop the boats’?
More than 27,000 people have already crossed the Channel from France this year, and 615 people made the journey on Sunday alone.
The government had already lined up 350 people for removal, but the main hope of the scheme was that it would have acted as a major deterrent to people considering making the journey in the future.
With the Rwanda plan currently grounded, it is unclear what will happen to migrants who have arrived in small boats and who are technically barred from being granted refugee status under the terms of the Illegal Migration Act, which passed in July.
Without a safe third country to send them to, they are likely to remain stuck in limbo in the UK’s migration and detention system.