Rishi's Rwanda plan is unlawful: Government's flagship policy to send migrants to Africa blocked by Supreme Court

15 November 2023, 10:17 | Updated: 15 November 2023, 11:09

Sunak has lost the Rwanda court case
Sunak has lost the Rwanda court case. Picture: Alamy

By Will Taylor

The Supreme Court has blocked the government's flagship Rwanda plan, dealing a bitter blow to Rishi Sunak as judges ruled it is unlawful.

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The PM wants to send migrants who arrive in the UK illegally to the East African country to deter future small boat crossings in the Channel.

But critics challenged whether he could do that, saying Rwanda is unsafe for vulnerable people and breaches the European Convention on Human Rights (ECHR).

Sunak said the judgement was "not the outcome we wanted" but made no mention of his next steps apart from again committing to "stop the boats".

Five Supreme Court justices ruled the Court of Appeal was right to stop whether the government deporting asylum seekers on Wednesday morning.

Their rejection could now lead to Tories to call for the UK to leave the ECHR. In an attack on Sunak after he fired her, ex-home secretary Suella Braverman said he had hoped he could wish the Rwanda plan into existence and failed to take dramatic steps like "blocking off" the ECHR.

Lord Reed said the Supreme Court agreed the Rwanda plan is unlawful
Lord Reed said the Supreme Court agreed the Rwanda plan is unlawful. Picture: Supreme Court

Sunak said: "We have seen today's judgment and will now consider next steps.

"This was not the outcome we wanted, but we have spent the last few months planning for all eventualities and we remain completely committed to stopping the boats.

"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.

"Illegal migration destroys lives and costs British taxpayers millions of pounds a year. We need to end it and we will do whatever it takes to do so.

"Because when people know that if they come here illegally, they won't get to stay then they will stop coming altogether, and we will stop the boats."

Under the plan, people who arrive in the UK illegally would be sent to Rwanda to be processed for asylum there. They would have no ability to claim asylum in Britain.

Read more: What is the UK's Rwanda plan and why did it go to the Supreme Court?

Read more: 'Don't send them to a dictatorship': Daughter of tortured Hotel Rwanda hero demands end to 'unconscionable' migrant plan

Then, Rwanda will either offer them asylum there or deport them back to a country they are entitled to reside in - a process called "refoulement". For most, that would involve them being sent back to the country they had left in the first place - potentially opening them up to persecution there.

In the judgement, handed down on Wednesday, the Supreme Court judges said the Court of Appeal - which previously blocked the plan - was right to conclude there were "substantial grounds for believing that asylum seekers would be at real risk of ill-treatment by reason of refoulement if they were removed to Rwanda".

It said the court came to that conclusion based on Rwanda's "poor human rights record", with the UK having criticised "extrajudicial killings, deaths in custody, enforced disappearances and torture" in the state as recently as 2021.

Read more: Read in full: Supreme Court ruling against the government's Rwanda plan

Evidence from the United Nation's refugee agency, UNHCR, showed there were "systematic defects" in how Rwanda processes asylum claims, including a "surprisingly high rate of rejection" of claims from people fleeing conflict zones.

Sunak hoped the deal would deter migrant crossings
Sunak hoped the deal would deter migrant crossings. Picture: Alamy

Thirdly, the court pointed to Rwanda's failure to explicitly say it would commit to the non-refoulement principle it gave to Israel between 2013 and 2018.

The Supreme Court judges said while Rwanda was given incentives to comply with the agreement, and monitoring arrangements had been made, "the evidence shows that there are substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will therefore be at risk of being returned directly or indirectly to their country of origin".

"The changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place when the lawfulness of the Rwanda policy had to be considered in these proceedings," the ruling said.

Lord Reed, the president of the Supreme Court, said that the five justices unanimously agreed with the Court of Appeal's conclusion that the scheme is unlawful.

How Sunak will push on from here is unclear.

New home secretary James Cleverly said: "Our partnership with Rwanda, while bold and ambitious, is just one part of a vehicle of measures to stop the boats and tackle illegal migration.

"But clearly there is an appetite for this concept. Across Europe, illegal migration is increasing, and governments are following our lead – Italy, Germany and Austria are all exploring models similar to our partnership with Rwanda.

"We will carefully review today’s judgment to understand implications and next steps."

Sections of the party have nailed their colours to the Rwanda plan's mast and insisted the government must do it to stop the tens of thousands of crossings across the Channel in recent years.

Sunak is under pressure to ensure deportations can begin
Sunak is under pressure to ensure deportations can begin. Picture: Alamy

Braverman, one of the plan's champions who is thought to be hoping to become leader of the Tory right, took a parting shot at Sunak over his commitment to the deal.

She wrote on Sunday: "I was clear from day one that if you did not wish to leave the ECHR, the way to securely and swiftly deliver our Rwanda partnership would be to block off the ECHR, the HRA and any other obligations which inhibit our ability to remove those with no right to be in the UK. Our deal expressly referenced "notwithstanding clauses' to that effect.

"Your rejection of this path was not merely a betrayal of our agreement, but a betrayal of your promise to the nation that you would do "whatever it takes" to stop the boats. At every stage of litigation I cautioned you and your team against assuming we would win.

"I repeatedly urged you to take legislative measures that would better secure us against the possibility of defeat. You ignored these arguments. You opted instead for wishful thinking as a comfort blanket to avoid having to make hard choices. This irresponsibility has wasted time and left the country in an impossible position.

"If we lose in the Supreme Court, an outcome that I have consistently argued we must he prepared for, you will have wasted a year and an Act of Parliament, only to arrive back at square one.

"Worse than this, your magical thinking - believing that you can will your way through this without upsetting polite opinion - has meant you have failed to prepare any sort of credible Plan B'.

"I wrote to you on multiple occasions setting out what a credible Plan B would entail, and making clear that unless you pursue these proposals, in the event of defeat, there is no hope of flights this side of an election. I received no reply from you."

Earlier this week, the adopted daughter of the hero from "Hotel Rwanda" urged the UK not to deport people there.

Carine Kanimba branded the country a dictatorship on Tuesday.

Paul Rusesabagina, her adoptive father, was kidnapped after landing in the capital, Kigali, in 2020 and she says he was tortured before finally being released earlier this year.

He is famous for sheltering scores of Hutu and Tutsi refugees at a hotel in Kigali during the Rwandan genocide in the 1990s. That was immortalised in the 2004 film Hotel Rwanda, in which he was played by US star Don Cheadle.

Kanimba said: "There are no freedoms in Rwanda. And what happened to my father, his kidnapping, across international borders, and sham trial and torture, is an example of the type of country that is ruled by this government."

She added: "I would ask [British politicians] to have humanity, and to not send vulnerable people, and vulnerable refugees, to a dictatorship."

The Rwandan government said in its reaction to Wednesday's judgement that it took "issue" with the ruling that it is not a safe third country.

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