The flagship policy is a pillar of Mr Sunak’s commitment to “stop the boats” before the next election and immigration minister Robert Jenrick has insisted that the plan will go ahead “no ifs, no buts”. Reacting to the ruling, Mr Sunak said that while “this was not the outcome we wanted” the government had been “planning for all eventualities.”
Plan B will be negotiating a new treaty with Rwanda that addresses some of the concerns raised in the court ruling. The government are going to finalise an agreement with Kigali that would mean asylum seekers can’t be deported from the country.
What did the Supreme Court rule?
The UK’s highest court has ruled that it is unlawful for the government to deport asylum seekers to Rwanda. They have agreed with judges in the Court of Appeal who ruled in June that the plans would be unlawful because of deficiencies in Rwanda’s asylum system.
Judges in the lower court had agreed with a two to one majority that there was a real risk that “persons sent to Rwanda with be returned to their home countries where they faced persecution or other inhumane treatment”. As a result, they said it would be a breach of the European Court of Human Rights (ECHR) to send asylum seekers to Rwanda.
The Supreme Court has now agreed with this and ruled again against the government. They said that the assurances given by the Rwandan government to the UK were insufficient to ensure that there is no real risk that asylum seekers will be wrongly returned to countries where they face persecution.
What does the ruling mean for the government’s plans to send asylum seekers to Rwanda?
Although the government has lost in the Supreme Court, this does not necessarily mean that Suella Braverman’s dream of sending asylum seekers to Rwanda has been put to bed.
The court has not ruled that deporting asylum seekers to third countries is in principle illegal, but instead said that there are not sufficient safeguards in place in Rwanda’s asylum system to guarantee the refugees would be safe.
Mr Sunak emphasised this in his reaction statement, saying: “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.”
The government could try and go back to Rwandan officials and work with them to safeguard and reform their asylum system to ease the concerns of the UK judges. Given the problems raised in court were significant, this may be too large a task.
President of the Supreme Court Lord Reed was pretty damning in his assessment of Rwanda’s asylum system. He told the court: “The structural changes and capacity-building needed to eliminate that risk [of asylum seekers being wrongly returned to their home countries] may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered.”
The government’s favoured Plan B option
An alternative option would be elevating the deal to treaty status and getting parliamentary approval for the scheme. If MPs have given their seal of approval to the plan, it would be much harder for the Supreme Court to rule against the government in court.
This seems to be the first path Mr Sunak will go down. He told MPs on Wednesday that his goverment would “finalise” a new treaty with Rwanda and was “prepared to revisit our domestic legal frameworks” if necessary.
He said the treaty would be finalised “in light of today’s judgement”. He added that if it becomes clear that “our domestic legal frameworks or international conventions” are frustrating his plans then “I am prepared to change our laws and revisit those international relationships.” He clarified at a press conference that he “will not allow a foreign court to block these flights”.
The government are looking to agree a new treaty that would see the Rwandans accept asylum seekers into their country regardless of whether their asylum claims are successful or not.
This is an attempt to alleviate Supreme Court concerns that if the migrant’s asylum claims are unsuccessful they could be deported back to their home countries and suffer persecution.
Mr Sunak said that asylum seekers “will be protected from removal from Rwanda” and promised “to bring back anyone if ordered to do so by the court”. Any emergency legislation agreed by parliament will likely face further legal challenge and will have to go through the UK courts. It could ultimately end up in Strasbourg with the prime minister seemingly committing himself to ignoring any ECHR rulings if it gets to that stage.
A new treaty with Rwanda will no doubt be a very expensive option. Under the current memorandum of understanding, the UK agreed to pay for the costs for five years of welfare and integration for those who had successful asylum claims, and pay for three years for those who did not qualify for refugee status.
Will Sunak be pushed to leave the European Court of Human Rights?
Some MPs have pressure on government to leave the ECHR - a move Ms Braverman was in favour of.
Lord Reed did have some comments to make on this option in his Supreme Court judgement however. He said that “it is not only the European Convention on Human Rights that is relevant to this case as is sometimes thought”. He referenced the UN convention against torture as an example of other legal provisions to which the UK is a party.
In the summary judgement, judges said that “asylum seekers are protected against refoulement [being returned to their home countries] by several international treaties ratified by the UK”. They named the UN convention on the status of refugees, the Refugee Convention, and Article 3 for the ECHR among others.
This was in effect saying that parliament would have to withdraw from a whole lot more than the ECHR if they wanted to try and send asylum seekers to Rwanda at the current time.
Withdrawing from the ECHR could also have implications for the Good Friday agreement. However if Mr Sunak decides to ignore ECHR rulings in order to get flights off the ground this could lead to full withdrawal.
Could the government send asylum seekers somewhere other than Rwanda?
If Mr Sunak decides to give up on the £140m deal with Rwanda, he could turn his attention to other countries instead. The Home Office has said recently that it will expand the list of safe countries asylum seekers can be returned to to include India and Georgia.
There have also been reports that Turkey, Iraq and Egypt could be added to the list. Mr Sunak might also be hoping that the international experience of his new home secretary, who previously held the position of foreign secretary, could help forge new Rwanda-style deals with other countries, whose asylum systems are a bit less problematic.
Conversations are reportedly happening with a number of other countries on a similar style deal, although details have not been made public. When details of an apparent plan to send asylum seekers to Ascension Island were made public they were almost immediately slapped down as unworkable.
Both the Ministry of Defence and the US government resisted the proposals, according to reports, leaving them dead in the water given the only way to get to the island would have been on RAF flights.