This post reflects on Wednesday’s momentous Supreme Court decision in the Rwanda litigation. You can read Colin’s initial take on the judgment here.

The Supreme Court’s decision

To recap, the Supreme Court decided that there are substantial grounds for believing that the removal of any asylum seeker to Rwanda under the terms of the Migration and Economic and Development Partnership (MEDP) between the governments of Rwanda and the United Kingdom would breach the principle of non-refoulement.

This was because deficiencies in the Rwandan asylum are such that there would be real risks of genuine refugees having their asylum claims refused meaning Rwanda would be entitled to remove them to their countries of origin.

Although this meant that removals would breach article 3 of the European Convention on Human Rights and so the Human Rights Act 1998, Lord Reed, the court’s president, was at pains to point out that the policy would breach an array of other international treaties and domestic legislation. As well as the Refugee Convention, this included the UN Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR).

Indeed, the principle of non-refoulement is considered to be a rule of customary international law, which means it is binding on all states regardless of treaty obligations. In this regard, it is worth noting that in the context of the asylum claims for the asylum seekers on Diego Garcia, the British Indian Ocean Territory Commissioner is deciding claims made by the asylum seekers on the territory on the basis of the principle on non-refoulement as customary international law (the territory is not a party to any of the treaties referred to above).

The Supreme Court was also at pains to make clear that it was simply performing its function of deciding the case before it according to the law. This was perhaps emphasised (whether or not intended) by the fact that the Rwanda case was last of three judgments issued on Wednesday morning, with the other ones being a Privy Council case concerning fraud and the other a Supreme Court ruling in a case concerning mis-selling of insurance by banks.

Many commentators consider that the Supreme Court has in recent years charted a more conservative, deferential course in cases involving government decisions. Its decision in this case represents a welcome assertion of its role as a court respected internationally for upholding fundamental human rights. For so long as it is charged under UK law with upholding absolute rights such as article 3 ECHR, the government can and should expect the court to approach its task with the seriousness and rigour it did in this case.

The government’s response

Within hours of the Supreme Court’s decision, the Prime Minister announced that the government was determined to press ahead with its Rwanda policy. It is said that a formal treaty is to be agreed with Rwanda. This will include, for example, a guarantee that asylum seekers will not be returned to their countries of origin. It is also said that emergency legislation will be passed that will confirm that Rwanda is safe and the restrict scope for legal challenges, particularly ‘systemic’ ones.

It is difficult to see how a treaty can address the Supreme Court’s decision. Many of the problems with the Rwandan asylum system are structural. For example, inadequate training and experience of the complexities of individual refugee status determination processes (Rwanda’s experience is mostly in relation to refugees from neighbouring countries that are not examined in any great detail); lack of independence amongst government officials and its judiciary; and the nature of the Rwanda regime.

Rwanda is a state party to various international human rights treaties (eg the Refugee Convention, the ICCPR) but there is clear evidence it does not comply with these obligations. It had an agreement with the state of Israel which required it to respect and comply with the principle of non-refoulement, but there is clear evidence it breached this agreement. And as the Supreme Court noted, the British police has had to issue “Osman” warnings to people resident in the UK of credible threats to kill made by the Rwandan state. Evidence before the court suggested the government of Rwanda did not recognise or accept its shortcomings, for example in its understanding of the principle of non-refoulement. The statement put out by the Rwandan government after the judgment does not alleviate concerns.

It is therefore difficult to see how attempting to fix these problems by elevating the agreement to a treaty will address the Supreme Court’s decision. It is true that in Abu Qatada’s case, following SIAC’s ruling that removal would breach the ECHR because of the risk of evidence obtained by torture being deployed in proceedings against him, the government agreed a treaty with Jordan which included guarantees that this would not happen, and the deportation then went ahead.

But here the problem is much less contained (i.e. guarantees as to non-refoulement for an undefined number of asylum seekers) and the effect of the Supreme Court’s decision is that promises made by Rwanda must be treated (at best) with a significant degree of scepticism. There is also the as yet unresolved question of whether conditions in Rwanda, in particular the risk of ill-treatment for asylum seekers who protest or otherwise do not comply with the regime, would breach article 3 (having decided the non-refoulement issue in the claimants’ favour, the Supreme Court decided it was not necessary to decide this issue).

The government has also suggested that it will restrict the scope for legal challenges. It is not clear if an outright ouster will be deployed, but the Prime Minister seems to have indicated that he favours a more limited one seeking to exclude the kind of systemic challenges in the present case.

If an outright ouster were proposed, it would surely be vulnerable to challenge given the context. Three points are relevant.

First, the right to be free from non-refoulement is a rule of customary international law, which the Supreme Court said was “binding upon all states in international law, regardless of whether they are party to any treaties which give it effect”. Such enumeration of customary international law’s effect indicates at least a prima facie willingness to consider whether it has a superior position within the hierarchy of legal norms in the UK.

Second, as the judgment of the plurality (Lord Carnwath, Lord Kerr, and Lady Hale) in Privacy International indicated, “even if clear words had been used, binding effect could not be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court”.  This applies with greater force here, given the purported breach of customary international law.

Third, the Government would, by “deeming” Rwanda safe irrespective of the factual position, be effectively overturning the Court’s factual determination (albeit premised on a legal test) on a test rooted in customary international law. The courts’ willingness to accept an ouster clause wholly excluding their supervisory jurisdiction in such circumstances will surely be severely tested.

As to the Prime Minister’s stated intention to use a limited ouster to exclude systemic challenges, it is difficult to envisage how this would be worded but it is any event   misconceived. Systemic challenges are brought and allowed by the courts to proceed to conserve limited judicial and other resources, and to ensure a consistent approach is taken. If instead each individual has to bring a challenge, if the reasons for upholding a challenge are generic, it would be a waste of time and resources for other individuals to go to court and bring a case raising the same points.

In short, it is difficult to see how the government’s proposed fix (at least what has been said about it so far) is capable of meeting the Supreme Court’s judgment. Whether it will lead to the policy being operationalised and flights taking off before an election on or before January 2025 must surely be doubtful.

The longer-term

The debate about how better off countries like the UK should respond to the mass movement of people in the world is not going away. Although the Supreme Court was not asked to decide whether there is a more principled international law objection to agreements like that between the UK and Rwanda, the courts below dismissed these arguments, and the government considers it has won on this issue of principle. Whatever happens in the immediate future in the UK, this issue will almost certainly continue to be an important political and electoral topic.

UNCHR’s position is that it supports arrangements that lead to the sharing of the burden for processing asylum claims and hosting refugees, while it is “firmly opposed to externalisation initiatives that forcibly transfer asylum seekers to other countries” which “simply shifts asylum responsibilities elsewhere and evades international obligations”. The EU’s Dublin mechanism is an example of the former, which in broad terms provided for responsibility to be determined on the basis of the state with which the asylum seeker was most closely connected (i.e. because of close family ties) or, in the absence of any such connection, the country they first arrived in.

Effective burden sharing arrangements should lead to less irregular migration through dangerous routes like the Channel crossing. In contrast, externalisation and deterrence lead to deaths and other harms to people traumatised by war, human rights abuses and, increasingly, climate related disasters.

Final thoughts

Anyone involved in the Rwanda litigation will have their own grim stories to tell (the interim relief hearings, case management and the conduct of the High Court stage generally, long hours and interrupted or even cancelled holidays). However, ultimately, the Supreme Court’s decision is a vindication – most of all for the clients who it is hoped can now finally move on with their lives; for UNCHR and its for its brave, expert intervention; and other legal teams (particularly the AAA team who did the heavy lifting on the non-refoulement issue) who worked tirelessly to make Wednesday’s decision happen.

Also deserving of a shout out is the unnamed ECHR judge who issued the Rule 39 indication on 13 June 2022. This stopped a grave injustice from going ahead and which any reasonable person looking at now should consider to be entirely correct and unobjectionable.

Article written with thanks to Gabriel Tan for his input.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

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