The Rwanda scheme was first announced 20 months, four home secretaries and two prime ministers ago. While the government claims that it would prove a powerful disincentive if enacted, it has never appeared to be a realistic panacea for the problem of small boat crossings: Rwanda’s new facility has initial capacity for 200 migrants, while almost 30,000 people have made the journey across the Channel this year. Nonetheless, it has now become a cornerstone of the government’s messaging on dealing with the problem, and there is no prospect of a retreat before the next election.
In June, the supreme court declared the policy unlawful, concluding that there was a real risk that anyone sent to Rwanda could be returned to persecution in their home countries – known as refoulement. Cleverly’s trip to Rwanda, and the legislation expected to follow, are supposed to get past that, and make the proposals into a reality. But there are good reasons to be sceptical about their prospects of success.
What does the new Rwanda treaty say?
In Rwanda, Cleverly (above) signed a revised treaty between the two countries. As well as including a pledge from Rwanda that even those whose asylum claims fail will not be sent anywhere but the UK, it sets out new safeguards that are meant to ensure it keeps its word. The Home Office says there will be “enhanced” functions for an independent monitoring committee. There will also be a new appeals body, made up of judges with experience of asylum law.
The proposed treaty “looks like lots of creative legal architecture to meet the non-refoulement duty,” Devyani Prabhat said. “Each aspect will be challenged in court.” Still, the new plan “will have a more elevated status in international law”, because it is a formal treaty rather than a “memorandum of understanding”. The question is whether the announced safeguards would be enough to change the supreme court’s mind.
“The supreme court has relied on reports of external agencies, including the UN Refugee Agency, on the situation in Rwanda, so a treaty on its own cannot change the situation,” Prabhat said. (The UNHCR pointed to at least 100 allegations of threatened and actual refoulement in its evidence to the court; you can read the judgment here.) But, she added, “if there is legislation to follow up on the same points in parliament, which is passed, it may be more difficult to challenge in court.”
What will the legislation say?
We don’t know yet – but here are the key points reported to be under consideration.
Will the UK opt out of the European Convention on Human Rights?This is the most radical option that has been discussed, preferred on the right of the Conservative party and said to have the support of immigration minister Robert Jenrick. The UK has been a signatory to the ECHR since it was set up in 1959; it is therefore bound by its judgments, like 45 other members of the Council of Europe.
This is not a question of the UK formally leaving the ECHR, which would be a “lengthy process requiring parliamentary approval and six months’ notice”, Prabhat said. “Otherwise, it’s illegal.” But the government could choose to ignore its jurisdiction over the Rwanda scheme, an approach mooted in Suella Braverman’s letter to Rishi Sunak after she was fired. That would involve a clause saying that “notwithstanding” the court’s view – legal claims could still be filed at the Strasbourg court – the UK would do what it wants anyway.
That would also be unlawful, Prabhat said, and up to ten ministers would reportedly consider resigning if Sunak chooses this option. The Times reported (£) that government lawyers have refused to approve such an approach because they fear it would leave them in breach of the civil service code. Reports today suggest that Tory moderates have received assurances that Sunak will not take that approach.
Will the government “disapply” the UK’s Human Rights Act?The option reported as Sunak’s most likely choice. There is a limit to what this legislation means for the Rwanda scheme, Sir Jonathan Jones KC notes for the Institute for Government: the Human Rights Act does not allow courts to strike down primary legislation, but simply declares it incompatible with the act and leaves it to the government to respond.
In any case, rightwing Conservatives have also demanded legislation excluding the Rwanda scheme from the protections offered by the act. It is suggested that this could be enough to change the supreme court’s mind, because it is the Human Rights Act which applies the ECHR’s provisions within the UK.
But simply declaring the act irrelevant is “not possible unless it is repealed”, Prabhat said. “Even then, basic human rights are part of common law and international law jurisprudence.” Individual asylum seekers could continue to use the Human Rights Act to challenge their removal to Rwanda, meaning that legal hurdles would still remain.
Will the legislation simply declare Rwanda a safe country?In a sense the most straightforward option, this is nonetheless unconventional: laws are not typically passed to assert the government’s opinion as fact. “A mere declaration in parliament will not be enough,” said Prabhat. “But it may be part of a more comprehensive statute.” If there are specific assurances in the bill that align with the treaty signed by Cleverly yesterday, that might have more force.
Such a plan might work as a matter of UK law, Jones writes. “Ultimately, one would expect the (UK) courts to give effect to such primary legislation, if drafted sufficiently tightly and unambiguously. That would (probably) close off challenges in the domestic courts.”
But there is still a possibility that the evidence the supreme court heard about the risk of refoulement will hold sway. Much could depend on whether the new safeguards are deemed effective. “A monitoring system which draws in international safeguarding from impartial human rights agencies might be considered some safeguard,” Prabhat said. But a suggestion that British lawyers could be stationed in Rwanda to monitor the system there “does not seem practicable. Would asylum-knowledgable lawyers actually move their practice to Rwanda? Who would fund it?”
Will any of this work?
It depends on what you mean by work. Even if the government alights on a set of proposals that can command the support of MPs, there is still the strong possibility that it will be defeated in the House of Lords – and there is not enough time left before the next election to force the legislation through. There would inevitably be further legal challenges, and it seems unlikely that the effectiveness of this legislation will be clear before they are exhausted – again, unlikely before the next election. If the aim is to create a powerful disincentive for those crossing the Channel in small boats, that all seems to amount to a failing grade.
On the other hand, many of the government’s critics suspect that the aim is not to “succeed”, but to create a wedge issue for the next Conservative manifesto by being thwarted by the court again. The wisdom of an approach which rests on highlighting the government’s repeated failure to enact an effective policy might be questionable, but if that’s the idea – a contention denied by the government – then yes, it could work.
“Blaming outsiders (especially if they are presented as sub-human and not deserving) is … always popular,” Prabhat said. “Especially before elections.” But the premise of the solution being proffered, that the UK is a soft touch because of the law’s protection of human rights, is one she rejects. “The crisis is in the lives of those fleeing wars and persecution,” she said. “Not in our system.”
