Share Now
on January 8, 2024
Read Time: 8 Minutes
The UK Government’s controversial policy of sending asylum seekers to Rwanda and banning them from returning to the UK was dealt a serious blow on 15th November 2023, when the UK Supreme Court – the country’s highest court – ruled that the policy was unlawful.
The five independent judges of the Supreme Court unanimously agreed with an earlier ruling by the Court of Appeal, which had said there had not been a proper assessment of whether Rwanda was safe as a place to send asylum seekers. The Supreme Court therefore upheld that earlier ruling, which had stated the policy left deported migrants susceptible to human rights violations.
The court decision leaves the already heavily contested Rwanda policy in disarray, preventing the plan from being put into action in its current form.
But what else do migrants and other affected parties need to know about this ruling, and the implications it is likely to have for the future of the Rwanda policy? And if you are current or would-be migrant with concerns about this subject, what else should you be aware of?
In a unanimous judgement, the Supreme Court upheld the previous Court of Appeal ruling in AAA v Secretary of State for the Home Department [2023] EWCA that it was unlawful for the UK Government to send migrants seeking asylum to Rwanda.
The Supreme Court held that the majority of the Court of Appeal was entitled to conclude that substantial grounds existed for believing asylum seekers deported from the UK to Rwanda would be exposed to a real risk of ill treatment.
According to the Supreme Court, there was a real risk of the asylum claims of migrants sent to Rwanda not being determined properly in the central African country’s asylum system.
The principle of “non-refoulement” – the notion that an asylum seeker should not be sent back to their country of origin, if doing so would put them at risk of harm – was central to migrants’ and campaigners’ legal case against the Rwanda policy. Indeed, “non-refoulement” is established as a principle under both UK and international human rights law.
On this aspect, the Supreme Court’s five justices found there was a genuine risk that refugees – migrants with good reason to fear persecution in their countries of origin – would be expelled from Rwanda, whether directly or indirectly, to their countries of origin.
It is worth noting that the judgement does not place a ban on the broader concept of sending migrants to another country. UK Prime Minister Rishi Sunak welcomed this, stating that “crucially, the Supreme Court – like the Court of Appeal and the High Court before it – has confirmed that the principle of sending illegal migrants to a safe third country for processing is lawful.
“This confirms the government’s clear view from the outset.”
Still, the justices of the Supreme Court said that although the Rwandan Government had entered into the agreement in “good faith”, the evidence left uncertainty as to its “practical ability to fulfill its assurances, at least in the short term.” The same applied, in the view of the independent judges, to the ability of the central African state to tackle “deficiencies” in its asylum system, and to see through “the scale of the changes in procedure, understanding, and culture which are required.”
In response to the Supreme Court’s decision, the UK Government reaffirmed its determination to continue with the policy. Mr Sunak said the Government had been “planning for all eventualities”, and would work on a new treaty with Rwanda to help realise its ambitions with the scheme.
This new treaty was ultimately signed by UK Home Secretary James Cleverly on a visit to the Rwandan capital of Kigali on Tuesday 5th December. The UK Government has said the treaty will be subject to UK Parliamentary scrutiny, and will be legally ratified in both countries.
The treaty was said by the UK Government to incorporate the following measures:
Mr Sunak also indicated in light of the ruling that he was prepared to change UK laws that may hold back effective implementation of the policy. The Safety of Rwanda (Asylum and Immigration) Bill was subsequently introduced on 7th December, and – in the words of the UK Government – “provides Parliament with the opportunity to set out the conclusion that Rwanda is safe in primary legislation. Once the treaty is ratified and the Bill passed, we can begin to operationalise the Partnership.”
In setting out its legal case for the Bill, the Government said that the legislation was largely aimed at ensuring Parliament’s conclusion on the safety of Rwanda is accepted by the UK’s own courts, in line with the principle of Parliamentary sovereignty.
To this end, the Bill comprises the following measures:
The BBC quoted a spokesperson for the Rwandan Government as stating that the question of the policy’s legality was “ultimately a decision for the UK’s judicial system”; they objected, however, to “the ruling that Rwanda is not a safe third country”.
Meanwhile, the Rwanda policy has continued to receive heavy criticism from opposition politicians, migrant rights’ campaigners, and other parties on such grounds as its costliness, lack of compassion towards those seeking asylum, and a perception that the UK Government’s latest measures will not effectively address the problems they are purportedly meant to solve.
The UK Government first announced its asylum plan with Rwanda on Thursday 14th April 2022, as part of what it described at the time as “a new Migration and Economic Development Partnership to redress the imbalance between illegal and legal migration routes.”
When describing the policy in 2022, the UK Home Office said that those using what it called “illegal, dangerous, and unnecessary methods” to reach the UK would be considered for relocation for Rwanda, so that they could have their asylum claims processed there.
The department said that those moved to Rwanda whose claims for protection were turned down would be given two options – staying in Rwanda, or returning to their home country – with no option for them to return to the UK after a decision being made on their claim by Rwanda.
The Government has said that its plan of sending asylum seekers to Rwanda was motivated by a wish to “deter people from making dangerous journeys to the UK to claim asylum, which are facilitated by criminal smugglers, when they have already travelled through safe third countries.”
In a speech setting out the policy on 14th April 2022, the then-UK Prime Minister Boris Johnson said the Rwanda plan would “provide safe and legal routes for asylum, while disrupting the business model of the gangs”.
Mr Johnson had claimed this would be the case “because it means that economic migrants taking advantage of the asylum system will not get to stay in the UK, while those in genuine need will be properly protected, including with access to legal services on arrival in Rwanda, and given the opportunity to build a new life in that dynamic country, supported by the funding we are providing.” That latter quote from the former Prime Minister perhaps betrays one of the contradictions in the Rwanda policy that has been a source of criticism: that the UK Government has sought to present Rwanda as a safe and “dynamic country” for asylum seekers, while justifying its scheme on the basis that it is supposed to “deter” those same migrants from making the journey to the UK.
Our award-winning team of immigration solicitors can advise you in relation to asylum in the UK
Here at Cranbrook Legal – a leading UK immigration law firm in central London – we can understand that the current legal landscape with regard to the UK asylum process is a fast-moving and concerning one. You might be unsure as to what your own rights may be in relation to claiming asylum in the UK, and what steps you may be best advised to take next.
Our team of specialists in UK immigration law has an excellent track record of helping those who are fleeing persecution in their country of origin to submit successful asylum claims in the UK, thereby giving such migrants the legal permission to stay in the UK as refugees. If you would like to know more about our services and expertise and how we could assist you in your situation, please do not hesitate to call us today on 0208 215 0053. Alternatively, you are welcome to complete and submit our online contact form to arrange a free consultation with us.
How Can We Help You?
