Sunak’s Rwanda plan in tatters after Supreme Court judges rule it unlawful

Supreme Court ruling is the end of an 18-month legal battle in the UK courts

Rishi Sunak's flagship plan to deport asylum seekers to Rwanda is in tatters after the Supreme Court ruled it is unlawful.

The UK’s highest court ruled on Wednesday that flights will not be able to go ahead in a blow to the prime minister’s key pledge to cut immigration to the UK.

The unanimous ruling by judges agreed with a Court of Appeal decision in June that found that Mr Sunak’s £140m deal was unlawful because of deficiencies in the Rwandan asylum system. Both courts found that sending anyone to Rwanda would be in breach of the European Court of Human Rights (ECHR) as there was a “real risk” they could be returned to their home countries to face “persecution or other inhumane treatment”.

Mr Sunak said “this was not the outcome we wanted” and said the government was now considering “next steps”.

No courts have found the plan to remove asylum seekers to a third-country unlawful in principle but have rather taken issue with the system in place in Rwanda. This could open up the possibility that the government could re-negotiate the deal with Rwanda in future or seek a similar deal with other countries.

Mr Sunak told MPs on Wednesday that he was working on a “new treaty” with Rwanda and, if this doesn’t work, he is “prepared to revisit our domestic legal frameworks”. Under the new treaty, the government will finalise an agreement with Kigali that would mean asylum seekers can’t be deported from the country.

Rishi Sunak was accused by Suella Braverman of having ‘no plan B’ if the Rwanda deal was found unlawful (Getty/PA)

President of the Supreme Court Lord Reed was clear in the judgement that the refugee agency UNHCR, who gave evidence in the case, should be trusted in their assessment that Rwanda was not a safe country for asylum seekers. He also emphasised that withdrawing the UK from the ECHR would not solve the government’s problems as the UK has other legal obligations to protect the rights of refugees.

The ruling of the five judges was a resounding loss for the government, with Lord Reed telling the court: “The evidence shows that there are substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will therefore be at risk of being returned directly or indirectly to their country of origin.”

He said that “the changes and capacity-building needed to eliminate that risk may be delivered in the future”, but that they were not currently in place.

The Rwanda plan is a core part of the prime minister’s pledge to stop small boat crossings, although charities and ministers disagree over whether it will be a significant deterent.

It is also an important part of the Illegal Migration Bill, which would deport all small boat migrants without their asylum claims being considered.

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Without the Rwanda agreement, the government has nowhere to deport asylum seekers to.

The judgement has drawn criticism from the right of the Conservative party, with the Tory deputy chairman Lee Anderson calling on the government to “ignore the law” and start flights anyway.

Former cabinet minister Simon Clarke said the ruling was “a serious challenge to who governs Britain”.

The Rwanda deal was originally signed by Priti Patel in April 2022 as a five-year arrangement.

Under the agreement, the UK has already paid £120m in development funding to Rwanda and £20m to receive the first group of asylum seekers, and will also pay for the processing and integration costs for each person sent there. This will cost an estimated £169,000 per person, according to a government assessment.

Rishi Sunak has said that the government will seek a ‘new treaty’ with Rwanda (PA)

Refugee charities hailed the ruling as a “victory for the rights of men, women and children who simply want to be safe”.

Care4Calais, who were a claimant in the initial legal challenge against the plan, said that the ruling was “a victory for humanity”. “Today’s judgement should bring this shameful mark on the UK’s history to a close,” CEO Steve Smith said.

One of the asylum seekers that the government tried to send to Rwanda in June 2022 has told The Independent that he “was so happy” at the news that their deportation plans had failed.

He called on Mr Sunak’s government to process his asylum claim and those of other migrants who he said are “living in limbo” waiting on their decisions.

He was in the Supreme Court, along with charity Care4Calais, when the decision was announced and he said he could tell by the body language of those around him that his claim against the government had succeeded. He said he was “proud” to be part of the legal action against the government and “it was my duty to do it for all the other people”.

The ruling comes just days after Mr Sunak sensationally sacked his home secretarySuella Braverman and replaced her with James Cleverly, the former foreign secretary.

In a scathing letter published on Tuesday night ahead of the court decision, Ms Braverman accused Mr Sunak of betraying his promise to the nation to do “whatever it takes” to stop the boats. She said that Mr Sunak had agreed a deal with her when she was appointed home secretary that would have allowed specific “notwithstanding clauses” into new legislation enabling the government to exclude international law. This would in effect be a way of ignoring the ECHR on certain issues without fully withdrawing from it.

She accused Mr Sunak of rejecting this proposal and failing to prepare a plan B if the government didn’t succeed in the courts. Reacting to Wednesday’s ruling, Ms Braverman said “the government must introduce emergency legislation” or “admit defeat”.

At Mr Sunak’s new-look cabinet on Tuesday, new home secretary Mr Cleverly outlined the options available to the government in light of the Supreme Court ruling. The prime minister’s official spokesman said that leaving the ECHR was not discussed at the meeting.

Mr Cleverly has in the past said that he did not think leaving the ECHR was necessary to ensure the UK’s tough approach to immigration. He told MPs on Wednesday that: “National governments can’t just vote themselves out of international commitments”.

However Mr Sunak said later at a press conference that he “will not allow a foreign court to block these flights.”

The Supreme Court has issued a damning judgment in its ruling that the Rwanda asylum policy is unlawful, leaving Rishi Sunak’s flagship plan in tatters.

Here are the five most damning statements in the Rwanda Supreme Court decision.

‘Real risk’ asylum seekers sent back to face ‘ill-treatment’

In their written judgment, the justices found there would be a risk of genuine asylum seekers being returned by Rwanda to the home country from where they fled, facing ill-treatment.

Lords Reed and Lloyd-Jones said the court is unanimously of the view that “the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.

“In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.”

Lord Reed added in a summary of the Supreme Court’s ruling that changes needed in Rwanda’s asylum system to “eliminate the risk” of refugees being returned to their countries of origin where they could face bad treatment “have not been shown to be in place now”.

He said there was a legal rule that “refugees must not be returned to their countries of origin, either directly or indirectly, if their life or freedom would be threatened in that country”.

“That rule is called the principle of non-refoulement,” he said.

Rwanda ‘rejects 100%’ of those fleeing some conflict zones

In their judgment, the Supreme Court also warned that Rwanda has a 100 per cent rejection rate for asylum seekers from conflict zones, including Afghanistan, Syria and Yemen.

The UN Refugee Agency said Rwanda had a “100 per cent rate of rejection of asylum claims from countries in known conflict zones from which asylum seekers removed from the UK may well come, such as Syria, Yemen and Afghanistan, although the UK authorities often find that such claims are well-founded”, Lord Reed said.

The judge said the UNHCR gave “over 100 examples” of Rwanda sending refugees back to their countries of origin and had argued that the Rwandan government had an “apparent misunderstanding of its obligations under the Refugee Convention”.

Lord Reed added that the UNHCR has given evidence over Rwanda’s “failure” to fulfil a “similar” agreement with Israel over the removal of asylum seekers, with some people being “routinely moved clandestinely to a neighbouring country from which they were liable to be returned to where they came from and face bad treatment.”

Police warn Rwandans in UK about state plans to kill them

In their decision, the justices explained that British police have had to warn Rwandan nationals living in Britain of credible plans to kill them by the Rwandan state.

It read: “In 2017, in proceedings to which the Secretary of State was party, the Divisional Court found that Rwanda was ‘a state which, in very recent times, has instigated political killings, and has led British police to warn Rwandan nationals living in Britain of credible plans to kill them on the part of that state’.”

The justices added that Rwanda has a “poor human rights record”, noting the UK government’s own criticism of the country in 2021 for “extrajudicial killings, deaths in custody, enforced disappearances and torture”. UK government officials have also “raised concerns about constraints on media and political freedom”, said the Supreme Court.

UNHCR’s evidence ‘naturally of greatest weight’

In the 56-page judgment, the Supreme Court made clear that they accepted the weight of the evidence provided by the refugee agency UNHCR, criticising the divisional courts for failing “to give proper consideration to the UNHCR’s evidence”, which was crucial to proving that the Rwandan asylum system was not fit to process claims.

What weight to put on the UNHCR evidence has been an issue of contention in the courts, with one of the judges in the Court of Appeal ruling that the government’s assessment trumped concerns expressed by the refugee agency. The Supreme Court has instead agreed with the UNHCR in their assessment that Rwanda is not a safe country for asylum seekers.

The justices said: “UNHCR’s evidence will naturally be of greatest weight when it relates to matters within its particular remit or where it has special expertise in the subject matter.”

‘Refugees protected by other treaties’ if UK removed from ECHR

President of the Supreme Court Lord Reed used his judgment to make clear that even if the UK decided to withdraw from the European Court of Human Rights (ECHR), this would not automatically make the Rwanda deal legal.

Lord Reed emphasised the UK has signed up to other legislation that protects the rights of refugees beyond the ECHR. He said: “Asylum seekers are protected against refoulement by several international treaties ratified by the UK.”

These included the the United Nations (UN) Refugee Convention, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and the UN International Covenant on Civil and Political Rights, he said.