A slogan without substance? David Allen Green writes that the Rwanda plan was flawed from the outset. Image: PA/Alamy

Why the Rwanda policy was always likely to fail

Last month’s landmark Supreme Court judgment highlighted deficiencies in the asylum scheme that should have been obvious to any serious government from the start
December 6, 2023

Once upon a time there was a policy that never made sense as a practical measure, even on its own terms. This was the proposal by the government of the United Kingdom to “remove” asylum seekers to Rwanda for their applications to be processed and, if granted asylum, to remain there. The policy was loudly promoted by ministers. In essence, it was a play performed for certain media and political audiences for their claps and cheers.

But despite this media and political reaction, it was a policy with flaws. One was that the proposal was muddled, another was that it lacked an evidence base. And in November yet another flaw became stark, when the Supreme Court held that the scheme was inherently unlawful. The judgment of the highest court of the land was emphatic and unanimous. Few policies can ever have failed so comprehensively.

At the core of this policy are confused aims. On one hand, the explicit and avowed intention of the ministers promoting it is to deter asylum seekers from using small boats to cross the English Channel. The home secretary who introduced the measure, Priti Patel, said the government was confident the policy represented the best chance of producing this effect. Such a deterrent, she insisted, would break the lethal business model of the criminal gangs running the crossings.

But for any deterrent to be effective, there must be the ­real prospect of a ­substantially worse outcome for those targeted. And here is where the policy contradicts itself. For under both domestic and international law, an asylum seeker can only be removed to a third country if there is actually no disadvantage to the asylum seeker. In other words: the “deterrent” can only be lawfully implemented if there is nothing in practice that amounts to a deterrent effect.

Then there is the lack of concrete evidence that the policy would actually work. Civil servants at the Home Office, who are not known for their woke naivety, warned Patel that the evidence of a deterrent effect was “highly uncertain” and not sufficient to justify adoption of the policy. Patel overruled these concerns, issuing a rare formal ministerial direction to push the proposal forward.

The hard work of establishing an appropriate legal framework for the scheme was never even attempted by ministers. The relationship with ­Rwanda was set out only in a “memorandum of understanding” (MoU), but this MoU expressly had no legal effect and contained nothing to guarantee, in law, the rights of those being removed. The document was so flimsy that it may as well have not existed. Only a formal agreement in a robust instrument would carry the weight of what was required. The government had enough time to negotiate such a treaty and lay it before parliament, but it chose not to do so. (Even when a House of Lords committee report confirmed these issues in late 2022, the government chose to ignore the problem.)

Ministers continued to promote a policy that did not make sense even to the sponsoring department

So ministers continued to promote a policy that did not make sense even to the sponsoring department and which had no visible legal means of support. Prime ministers and home secretaries came and went, but it was maintained that the Rwanda removals scheme would be the solution to the small boats problem.

The policy in practice was even more inept. In June 2022, a plane was to take the first asylum seekers to Rwanda. A Boeing 767 was chartered for half a million pounds. But by a variety of legal challenges in a number of different courts—not just the European Court of Human Rights—the plane was emptied of those to be removed until there was none left. The aircraft then just flew back to Spain. And still, at the time of writing—late 2023—no asylum seeker has been taken to Rwanda, although the policy has dominated the news.

Unsurprisingly, the policy was placed under continual legal challenge. The High Court initially held that, in the round, it was capable of being lawful. But the judges also imposed conditions on individual ­cases that would be difficult for a ­resource-starved Home Office to meet. Yes, a removal could take place, but there would be strict procedural safeguards. The Court of Appeal then went one step further, with the ­majority holding that the policy itself was not capable of being lawful. The government appealed to the Supreme Court.

There was reason to think that the Supreme Court would side with the government. Under its current president, Lord Reed, the court has a reputation for being deferent to the executive and legislature on policy issues. Like the High Court judges and the Lord Chief Justice who dissented at the Court of Appeal, it was not hard to conceive of the court holding that it was entirely a matter for the home secretary to assess the suitability of Rwanda. If ministers were going to win on a “policy” case, it was going to be at the Supreme Court of Lord Reed.

But instead the government lost. The Supreme Court justices, in a single judgment co-authored by Lord Reed himself, and having regard to copious and uncontroverted evidence provided by the United Nations High Commissioner for Refugees (UNHCR), were persuaded that the detailed failures of Rwanda’s asylum system meant the rights of ­individuals could not be properly safeguarded.

In particular, the court had regard to the legal principle of non-refoulement, which means that an asylum seeker should not be returned to their country of origin without their application being properly considered. The UNHCR had provided compelling evidence that there was such a risk. The court was also concerned about the documented lack of human rights protections in Rwanda. Against this evidence, the government had nothing in response but the non-binding MoU.

The justices were careful not to base their judgment on the European Convention on Human Rights, but on other international law such as the UN Refugee Convention, as well as domestic law. Indeed, the court expressly said that it had not decided the ECHR point. This wrong-footed the politicians and pundits who sought to use the defeat in their calls to leave the Convention. The judgment was plain: the Supreme Court would have held the policy to be unlawful even if the United Kingdom was not a signatory to the ECHR and the Human Rights Act never existed.

The court also, significantly, mentioned in passing that the principle of non-refoulement is part of what is called “customary international law”. This is the international counterpart of the common law, and so is not set out in any codified instrument or treaty. In other words: it is a law that the UK cannot simply legislate out of existence. This places the government in a tricky situation if it wants to use an Act of Parliament to circumvent the ruling.

The justices, however, also said that the structural changes and capacity-building needed in Rwanda to eliminate the risk of refoulement may be delivered in the future. The judgment was not an absolute prohibition on the policy for all time. Once it can be shown that the individuals are not at risk of being wrongly returned to their countries of origin, the policy may be implemented.

Here the Supreme Court was simply showing the deficiencies of the policy that would have been obvious to any sensible minister from the beginning. The removals policy had to respect the rights of the individuals concerned, and that required shared standards and firm legal structures. But investing in such improvements would require taking the policy seriously—and the government did not.

The final court decision was not inevitable: the judges could still have said it was for the home secretary and not the court to have the final say on whether Rwanda was a safe third country. But that veil of deference would not have made the policy coherent and workable, just established that it was not within the court’s remit to reverse. The policy would still have been expensive and subject to onerous procedural safeguards. Few, if any, individuals would have been removed to Rwanda and, if the asserted deterrent effect did not work, the boats would have continued. This was an immense policy failure, even had it been held to be lawful.

But this proposal was never about sound and lawful policymaking. It was about politics and the media, regardless of law and policy. The scheme provides an index of just how far the government has departed from actually having policies that work and which stand up to sustained legal challenge. Ministers and their supporters may have wanted to create a narrative, but the real story is in how they failed.

Yet such is the perceived political appeal of the Rwanda scheme that the policy may somehow be resurrected before the next general election. Mere legal defeat may not halt this irrationality. That the scheme does not add up, has no evidence in its favour and is anyway unlawful will not stop the push for the Rwanda flights to take place, for this is not about practical policy. The Rwanda scheme is now a totem.