Assessing the Legality and Practicability of the UK’s Asylum Seeker Policy

Background:

Last year, the UK announced a new immigration policy where asylum seekers would be taken to Rwanda to ascertain their refugee claims. If their claims were genuine, they would be given asylum in Rwanda. This was justified as a plan to stop illegal immigration into the UK, primarily through the English Channel, and also break criminal gangs who profited and risked people’s lives by illegally smuggling them into the UK. However, it is questionable whether this policy was practicable. Firstly, the policy would be too expensive. The cost of deporting each asylum seeker was estimated to be 169,000 pounds. More importantly, this policy raised ethical issues as it breached international legislation such as the European Charter of Human Rights and the 1951 UN Refugee Convention, to which the UK is a signatory. Such issues mainly led to this policy being challenged in court.

The Supreme Court judgement:

The Court of Appeal reversed the decision of the Divisional Court, holding by a majority that the policy was unlawful. This was based on evidence that Rwanda could not assess the asylum claims properly, which would increase the risks of refoulment. The Secretary of State appealed this decision, and the case went to the Supreme Court. The main issue was whether the immigration policy was lawful, mainly whether Rwanda was a safe third country under the 1951 UN convention. To qualify as a safe third country, it has to be shown that the nation will not return refugees to a place where their freedom would be abused. Despite the Rwandan government assuring that the claims would be determined per the Memorandum of Understanding, the court held that it would have to consider how the assurances would work. This could include the general human rights situation in Rwanda, the existence of monitoring mechanisms, etc. The court also noted that the Memorandum of Understanding between the UK and Rwanda was not legally binding.

Furthermore, the court held that the approach used by the Divisional Court was defective as it failed to evaluate the evidence about the referral correctly. Evidence was brought
forward by the UN High Commissioner for Refugees of Rwanda’s poor human rights record. For example, twelve refugees were killed in 2018 when protesting food ration reductions. The court also pointed out that Rwanda had entered into a similar agreement with Israel but failed to respect its commitments about the settlement. Therefore, Rwanda could not be relied on to respect international treaties.

Lord Reed, who delivered the unanimous ruling, held that the proposed UK immigration policy of removal of asylum seekers to Rwanda would be in breach of the principle of non-
refoulment. The five judges agreed with the Court of Appeal that it was doubtful whether Rwanda would have an accurate system to assess refugees’ claims.

Comment:

Following the Supreme Court ruling, the UK government has considered entering into a revised treaty with Rwanda or passing an emergency bill declaring that Rwanda is a safe third country. Richard Ekins contended that a new binding treaty would make sure that refugees are not taken back to their countries of origin, where they would face the risk of persecution. However, passing a treaty would take a long time, and immigrants could legally challenge it as it would not erase the overwhelming evidence that Rwanda is not a safe third country. Moreover, passing an emergency bill would not override the UK’s international obligations as it would only change domestic law. These proposed amendments in reaction to the ruling would create tension between the judiciary and the government as they would seem to overturn the court’s ruling on a question of fact.

David Green argues that the high costs of the court case and the policy itself could have been diverted for the Home Office to deal with asylum claims directly. However, it is doubtful that even if this were done, it would have the deterrent effect the government wanted to achieve. This is because refugee claims addressed by the Home Office take such a long time. This could lead to the immigrants being stranded in the UK immigration system and resorting to crossing using the English Channel again. Over 27,000 people have made the journey this year, less than those who crossed last year. It is unclear whether this reduction is because of this proposed immigration policy or other methods to stop illegal immigration, such as the Illegal immigration Bill 2023. Additionally, this policy will likely become unsustainable, like Australia’s refugee policy of offshore processing. Natalie Hodgson describes the Australian approach as ‘cruel, costly and ineffective’ and that the UK should not follow in its footsteps.

Conclusively, the government should abandon the Rwanda plan altogether, as it is clear that it will not solve the immigration problem. The government could consider other options to curb illegal immigration, for example, agreeing with France. Alan Manning argues that agreeing with France would reduce the number of channel crossings, albeit the UK would have to compromise about accepting more asylum seekers from Europe. This is a small price for the UK to curb this dangerous immigration method.

Written by Nancy Oundo