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The UK supreme court has ruled against the government’s plan to deport some asylum seekers to Rwanda for processing. But this isn’t the end of the story – a version of the plan is likely to resurface in some form. The initial reactions from the prime minister, Rishi Sunak, and his new home secretary, James Cleverly, shed light on where the government plans to take this next.
After months of legal challenges, the UK supreme court ruled that the Rwanda plan was unlawful. The ruling was not about the concept of off-shoring the asylum process to another country. Rather, it found that Rwanda in particular is not currently a “safe country” in which to do this. The court found that people sent to Rwanda would be at risk of ill-treatment and forcible return to the countries they had fled in search of protection.
In a statement in the Commons, Sunak made it clear that his government was intent on ploughing on, and that his commitment to stopping small boat crossings was “unwavering”. He also stressed that Rwanda was only part of the overall strategy on “illegal migration” that he intends to see implemented, and that the strategy is already working with irregular crossings declining.
How could the government get around the ruling?
Most telling is the emphasis Sunak placed on the court’s ruling indicating that the principle of sending people to a safe third country is lawful. “This confirms the government’s clear view from the outset,” he said.
In other words: our thinking is right, all we need to do is either find another country that the courts will deem “safe”, or make Rwanda “safe” by law to implement the plan. Both routes are already being pursued.
The search for alternative safe countries has been ongoing for months. This has involved official visits by ministers including Suella Braverman, and memorandums of understanding with countries like Turkey and Albania.
Sunak has also announced a new treaty with Rwanda as part of the plan, and emergency legislation to declare it a “safe third country” in law.
But this would still likely face legal challenges going up to the European Court of Human Rights, which interprets and upholds the European Convention on Human Rights (ECHR). In announcing the emergency legislation, Sunak said that he would “not allow a foreign court to block these flights” to Rwanda.
The political battle over the European court is an arguably fundamental part of this story. Since conception, the Rwanda plan was, for some, there to test the boundaries of the law and act as a Trojan horse for the Conservative right to push the UK outside the ECHR.
However, a key point from the supreme court ruling is worth emphasising here. While reading his summary of the judgment, Lord Reed noted that the ECHR is only one part of the relevant legal framework. So, even if the UK did leave, there are several UK and international laws that would still get in the way of removing people to Rwanda.
Another approach: exporting immigration detention
Up to now, the government has framed the Rwanda plan as fulfilling a dual purpose: a deterrent – if people know they risk forced removal to Rwanda by crossing the Channel, they would not make the journey – and as a tool to manage the spiralling backlog of asylum claims.
But the response to the supreme court ruling may lead to a shift, moving the purpose away from managing the asylum processing system, and more towards managing migrants who breach immigration law. The latter route is backed up by the new Illegal Migration Act, which increases sanctions for irregular crossing and human smuggling.
This would mean separating the removal to Rwanda from the asylum process, and instead using it as a place to expand the UK’s immigration detention capacity.
While likely to face legal challenges, there is already a template for this: the controversial plan announced in October to rent prison cells overseas “to ensure dangerous offenders can be locked up for longer”.
Where does this leave the Rwanda plan, or any future iteration?
Arguably, the implementation of the plan was never the priority – and it could hardly be sold as a one-size-fits-all solution. While politically, the plan has been very effective in mobilising Conservative membership, logistically it is a different story. Even if implemented, Rwanda would be able to host (at a high price) only a fraction of those the UK government deems subject to removal.
Both Sunak and Cleverly have been at pains to highlight their plan has inspired similar approaches in Europe (namely Italy, Germany, Austria and Denmark). Despite this major legal blow, they still very much see themselves as leading the way in immigration solutions.
Nando Sigona receives funding from ESRC (ES/V004530/1) and Horizon Europe/UKRI.
