The Supreme Court has today held that Rwanda is not a safe country and that it would be unlawful for refugees to be removed there. The government’s appeal against the Court of Appeal’s judgment has been dismissed.

Lord Reed, giving the court’s judgment, emphasised the non-political nature of the court’s role, which was to decide the case according to international and domestic law. He carefully explained the concept of refoulement, which means the direct or indirect exposure of a person to face very serious harm in another country. The Refugee Convention prohibits refoulement and so does the European Convention on Human Rights. But so too do numerous other international treaties.

If country A sends a person to country B and country B then sends the person to country C, where the person will be harmed, country A has committed refoulement. Country A cannot turn a blind eye to what will actually happen to the person in question and shrug off its responsibilities in that way.

Further, it is not only the Human Rights Act that requires proper assessment of an asylum claim in domestic law. There are several other Acts of Parliament which require the same.

The Supreme Court holds that the High Court was wrong to attach so little weight to the evidence of the UN High Commissioner for Refugees (UNHCR), the UN’s specialist refugee agency. The Court of Appeal was therefore entitled to look at the evidence for itself. And that evidence was damning.

Rwanda is widely acknowledged as having a poor human rights record. It is therefore in breach of numerous treaty commitments it has made. And the courts in Rwanda do not act an effective check on government behaviour: there is no real judicial independence. Further, the Rwandan government breached the terms of a previous asylum deal into which it entered with Israel. It is therefore not a government whose word can be taken at face value.

The critical question was

whether there were substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment, as a consequence of refoulement to another country

The Supreme Court, reviewing the evidence for itself, concluded that there were such grounds.

Ending the judgment, Lord Reed made clear that the court’s decision was based on the evidence then available. If the situation should change in Rwanda such that the risk of refoulement was reduced, this would not prevent the UK government from removing refugees there to have their asylum claims decided.

The judgment is available here. We’ll be updating this article shortly and will have more analysis for you this afternoon.

What next for the UK government?

The Supreme Court’s judgment will prevent the UK government from lawfully removing anyone to Rwanda, based on the evidence as it currently stands.

There are two important points to make before looking at what the government’s options might be if it wants to press ahead.

Firstly, the United Kingdom receives far fewer refugees than other countries in Europe or elsewhere. We have relatively small numbers of refugees arriving here. If we refuse to take responsibility for those few refugees who reach us, there is a risk other countries will do the same. If this happens, the whole international refugee protection system collapses. Why should other far less wealthy countries with far greater numbers of refugees take responsibility for refugees if a rich country like the UK refuses?

The UK government should therefore abandon its plans for this reason.

Secondly, no-one credible thinks that “the Rwanda Plan” is practical or that it deter significant numbers of refugees. For the deterrent effect to be real, the government would have to detain tens of thousands of refugees in camps and then remove them all to Rwanda. The government removed around 500 failed asylum seekers last year. The level of state coercion and violence required to follow through on the Rwanda plan seems unlikely to be sustainable in practice.

The Rwanda plan was never practical and the government has arguably been saved from itself by the Supreme Court.

If the government nevertheless wants to press ahead with its plans — or at least pretend to, pending an election — its options might include:

1. Find a different country which is safer than Rwanda.
2. Make arrangements in Rwanda that reduce the risk of refoulement, for example by managing the asylum process itself. This has been proposed by Policy Exchange think tank guru Richard Ekins and others, who are keen for the government to go ahead in some way.
3. Withdraw from the ECHR and the UN system of international treaties, including the Refugee Convention, the UN Convention Against Torture and the International Covenant on Civil and Political Rights, and abolish not just the Human Rights Act but also domestic asylum legislation from 1993 and 2002.

None of those options looks straightforward. The chance of twice-sacked Suella Braverman’s dream of a flight taking off for Rwanda before the next election being fulfilled has effectively diminished to zero.

Finally, let’s reflect on the cost of all this. The ballooning of the asylum backlog cost the British taxpayer millions per day. Think of the unrecoverable millions already paid to Rwanda. The legal costs of fighting this case. The cost of going further, building the necessary detention camps and flying tens of thousand of refugees to Rwanda would be massive. Most of all, the opportunity cost of ploughing so much time and energy into this failed vanity project.

Enough already. The government should get on with its day job of running a functioning asylum system.

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

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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