Victory as the Supreme Court rejects the government’s unlawful Rwanda plan

Legal Updates

the illustration depicts five fists of victory punching the air

This blog was updated on 6 December 2023 to reflect the fact that the UK has signed a new treaty with the Rwandan government.

On 15 November 2023, the Supreme Court of the UK published its damning ruling which found the government’s long-dragged out Rwanda plan unlawful, and dismissed the Government’s appeal against the Court of Appeal’s decision of April 2023.

This is a welcome victory for the migration justice community, as the threat of this plan has been hanging over us since it was first introduced by then-Home Secretary Priti Patel in April 2022, and further pushed by now-former Home Secretary Suella Braverman. 

If you need to refresh your memory about the Rwanda plan and the timeline of the court cases, have a read of our previous Legal Update blogs. 

What did the Supreme Court decide?

The task of the Supreme Court was to essentially focus on answering one crucial question in its decision: if the Rwanda plan went ahead, and people who had come to the UK to claim asylum were sent to Rwanda to have their claim considered there instead, would the UK be putting them at risk of refoulement?

Non-refoulement is a concept enshrined in international law. The idea is that a person who has claimed asylum cannot under any circumstances be sent back to a country where they would face a real risk of persecution (for example, torture, imprisonment, or even death). 

Under paragraph 345B of the Immigration Rules, a country can only be a safe third country if the principle of “non-refoulement” is respected there. The Supreme Court had to decide, on the evidence provided by the various claimants and the Home Office, whether Rwanda could be considered a safe third country under this legal rule. 

In its landmark judgment –

The Supreme Court unanimously [this means every member of the court who heard the case] dismisses the Home Secretary’s appeal, and upholds the Court of Appeal’s conclusion that the Rwanda policy is unlawful. This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda.

The Court found that all of the evidence, particularly that provided by the United Nations High Commissioner for Refugees (UNHCR), showed that Rwanda’s poor human rights record, and history of its treatment towards asylum seekers makes it highly unlikely that they would be safe if sent there. It also showed that there was a high risk that they could be sent back to countries where they would be at risk of inhuman or degrading treatment, or even death. 

Crucially, the Supreme Court based much of its decision on UK law, not on retained EU law. This was presumably to pre-empt any arguments or criticism about undermining UK law in favour of EU norms.

You can read the full judgment here.

You can read the press summary here.

What does this mean?

This means that a final decision has been made about the government’s so-called Rwanda plan, and it has ultimately failed. No one who claims asylum in the UK will be sent to Rwanda under the Inadmissibility Rules to have their asylum claim considered there.

It is really important to note that this decision is final – the case will not be appealed to the European Court of Human Rights (ECtHR). This is because a state cannot bring a claim to the ECtHR against private individuals, only a private individual or NGO can bring a claim against a state in that court, or a state against another state. This route was never an option for the UK government in the Rwanda case, it would only have been pursued by the individual/private claimants if they had not been successful in the Supreme Court of the UK. 

It is also important to note that the failure of the Rwanda plan does not mean that the Inadmissibility Rules are no longer being enforced by the Home Office against those who are found to have passed through / formed a connection with a ‘safe’ third country on the way to claim asylum in the UK. Although the Inadmissibility Rules remain largely unworkable because there are no return agreements between the UK and any third countries, people are still receiving Notices of Intent and/or having their asylum claims paused for a period of time. 

Read our Toolkit page to learn more about how the Inadmissibility Rules work (or don’t) in practice. 

What happens now?

Under then-Home Secretary Suella Braverman’s Home Office, there was a real fear that the UK government would begin a campaign to leave the jurisdiction of the European Court of Human Rights in the event of a failure of the Rwanda plan. She continues to push for this.

The new Home Secretary, James Cleverly, does not seem to be in favour of focusing his efforts on leaving the ECtHR.

However, both the Home Secretary and Prime Minister Rishi Sunak remain in favour of putting effort into making the Rwanda plan work in one way or another, despite the Supreme Court’s resounding rejection of it. 

While the Supreme Court judges ruled that Rwanda is not safe now, they did allow for the possibility that:

“the structural changes and capacity-building needed to eliminate that risk may be delivered in the future”

In an attempt to try and force through the Rwanda plan, the UK government signed a new treaty with Rwanda on the 5 December 2023. The contents of the treaty is very similar to the original Memorandum of Understanding (MoU) signed with Rwanda – but it introduces a few new ‘safeguards’, designed to address the finding that there is a real risk of ‘refoulement’ for those sent to Rwanda.

There have also been talks of ’emergency legislation’ to declare Rwanda as safe. It is unlikely that this treaty or emergency legislation will be able to force through the Rwanda plan in practice.

For a more detailed information on what the government’s potential options or approaches are moving forward, read this brilliant article by the Free Movement blog, and this explainer by the Guardian.

What does this mean for migration justice?

So, the Supreme Court decision on the 15 November 2023 was indeed a huge victory for the migration justice community – in the UK, and worldwide. We should celebrate every win, big or small, and this was a big one. 

However, we cannot become complacent. It took immense work and dedication from the migration justice sector, campaigners, lawyers, activists, and ordinary people to push back against the so-called Rwanda plan. It did not happen overnight, and this victory was not easy to come by.

We still have plenty of work on the path ahead of us to dismantle the Hostile Environment (as proven by the government’s response to the judgment), and to establish a world of radical solidarity.

2 comments on “Victory as the Supreme Court rejects the government’s unlawful Rwanda plan

  1. Bob Grindrod on

    Hi, your article says the Supreme Court dismissed the Court of Appeal decision. In fact, it dismissed the Government (Home Secretary)’s appeal against the Appeal Court decision. I realise it is a typo.
    Best wishes
    Bob

    Reply

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