“A completely extraordinary thing to do, to effectively overrule a decision on the facts, on the evidence, by the highest court in the land." That is Lord Sumption who served on the Supreme Court from 2012-2018 describing the Prime Minister’s proposed emergency legislation on offshoring asylum processing to Rwanda.
“With our new treaty Rwanda is safe”, Rishi Sunak declared responding to the Supreme Court’s unanimous judgement that Rwanda is unsafe and the government policy of deporting refugees to Rwanda is therefore unlawful. Sunak’s reaction to a judgement that does not please him is a demonstration of how to create Trumpian alternative facts - turn ‘magical thinking’ (Suella Braverman) into legislation.
The rest of the Government’s response has been gaslighting as usual. Sunak took the lead prefacing Prime Minister’s Question Time on 15 November by declaring “the principle of removing asylum seekers to a safe third country is lawful. There are further elements that they [the Supreme Court] want additional certainty on". So things are not what they seem: everything is under control.
But the Supreme Court was not deciding whether the general principle of moving asylum seekers to third countries was legal. The judges were hearing an appeal from Government against an existing decision of the Court of Appeal which had found outsourcing asylum processing to Rwanda unlawful. And the Prime Minister’s reference to mysterious ‘further elements’ relates presumably to facts about the past record of the Rwandan government including their treatment of Eritrean and Sudanese asylum seekers offshored to Rwanda by Israel between 2013 and 2018, as well as the question of past compliance with the 1951 Refugee Convention. Rwanda’s asylum procedures are clearly inadequate and require a substantial transformation to ensure compliance with the Refugee Convention and other international norms.
To seek and enjoy asylum from mistreatment and persecution in another country is a human right, Article 14 of the 1948 Universal Declaration of Human Rights. A great safeguard for refugees is the prohibition of forced return to countries where they may be subject to ill-treatment or persecution, the principle of non-refoulement. The decision taken by the Supreme Court rested on applying this principle in the light of the Rwandan government’s rudimentary systems for the processing of refugees and its past record on asylum and other human rights.
The Supreme Court judges were not going to be satisfied with assurances given by the Rwandan government as had the divisional court in the UK in which legal proceedings had begun with a preliminary finding in favour of the Government. Its ruling relied on a realistic and thoroughly researched assessment of the risk of breaches of non-refoulement involving asylum seekers sent from the UK to Rwanda. In short, the Supreme Court painstakingly undertook the due diligence we might have expected from the Government before they began herding asylum seekers onto an airplane to Kigali.
The Government could have avoided lengthy and expensive legal challenges. Early in 2022, the Foreign, Commonwealth and Development Office had advised Downing Street, on the advice of the UK High Commissioner to Burundi and Rwanda, Omar Daair OBE, not to select Rwanda as a third country. The UNHCR, with what the Supreme Court called their ‘unique and unrivalled expertise’, had aired their strong opposition. The killing by Rwandan police of 12 refugees from the Democratic Republic of the Congo during a protest against poor food in 2018 should have raised serious doubts. Rishi Sunak was probably too busy in California in May 2011 to notice reports of British police warning two Rwandan dissidents of a credible threat to their lives. President Kagame’s way with political opponents was hardly a secret when the ‘Rwanda Migration and Economic Development Partnership’ was launched by Priti Patel in April 2022 in the face of objections not just from the political Opposition but also from her Home Office civil servants, the Churches and NGOs.
The Government’s reaction to this debacle foretold, and of their own making, is disturbing. There was the usual claim that only a ‘vocal minority’ were rejoicing. And the worn out refrain that the Prime Minister would courageously realise ‘the will of the British people’ against the naysayers. And where have we heard that before? According to James Cleverly, the new Home Secretary, this is “an incredible priority for the British people”. Recently Home Secretaries have changed at least once a year. The post is now so precarious poor Mr. Cleverly, sitting next to the Prime Minister last Wednesday, showed the nervous signs of nodding-dog syndrome. In interviews he was reduced to sounding like an old-fashioned colonial officer assuring the home audience that the natives will be trained in good government double-quick, an unenviable task he shares with newly ennobled David Cameron.
What are we to make of all this? And of the waste of £140 million on a Rwanda Partnership known to be doomed to failure plus the £8 million a day spent on hotel accommodation for asylum seekers during the wait for a failed policy to be adjudicated. The kindest interpretation is incompetence with a touch of arrogance. But when most reasonable and compassionate people who believe in policymaking based on evidence and facts tell you the Rwanda Partnership isn’t going to fly, why keep trying to make it get off the ground? A less kind conclusion is that the Prime Minister’s determination to send a few refugees to Rwanda has more to do with votes than lives. Perhaps he believes getting his message across, standing in front of a microphone saying what he thinks people in key marginal seats want to hear, is leadership.
If the Government goes ahead with concluding a previously prepared treaty with Rwanda, ‘revisiting’ “our domestic legal framework”, and introducing “emergency legislation” - a seasonal mix of Götterdämmerung and Pirates of Penzance - we are in trouble. It sounds like a grave step in the long decline of Britain, driven by the extreme Right and led first by Boris Johnson. This move away from both a human rights culture and respect for the rule of law is what in any other country we would describe as undermining the foundations of democracy. We are indeed in an emergency - one needing a General Election not emergency legislation.
See TheArticle 17/11/2023