UK Home Secretary, James Cleverly side-steps Supreme Court judgement on failed Rwanda Plan by signing a formal treaty

The UK, Home Secretary, James Cleverly, arrived in Kigali, Rwanda this morning 5th December, to co-sign a new treaty with the Rwanda government, which he hopes will address one of the principal obstacles to implementation of the UK’s Rwanda plans. The concept of the treaty arose from a ruling in the Supreme Court last month which determined that the existing plans to route illegal migrants to Rwanda was unlawful.

Just hours after announcing a controversial five-point plan to restrict families of ‘legal migrants’ from joining them in the UK, the Home Secretary has embarked on a programme which he hopes will reignite the failed Rwanda plan to deal with ‘illegal migrants’ who arrive in the UK by small boats.

This time its formal! Home Secretary, James Cleverly and Rwanda Foreign Affairs Minister Vbiruta, sign the Treaty

Does a treaty resolve the central issue of refoulement?

James Cleverly represents the third Home Secretary after Priti Patel and Suella Braverman, to travel to Rwanda on this mission in the last 18 months. The new Treaty, is designed to overcome a central piece of the Supreme Court’s objections to the Rwanda plan, which it declared was exposing genuine asylum seekers to the risk of being sent back to their home country from which they had fled and/or to another country which was similarly hostile. This was defined as ‘refoulement’.

Illegal migrants will get a one-way ticket to Rwanda

Under the new asylum treaty, all migrants routed to Rwanda would be settled there or in what Home Office officials have termed ‘exceptional circumstances’, could potentially be returned to Britain. Crucially, the elevation of the existing ‘memorandum of understanding’ to a ‘formal treaty with parliamentary approval’ is regarded as a mechanism which will limit the courts ability to intervene in future.  The Home office has resisted any definition of what ‘exceptional circumstances’ actually constitute, nor does it seem prepared to comment on the likely cost involved in potentially fighting legal challenges of claimants or the subsequent prospective costs of flying of claimants to Rwanda and possibly back again to the UK. A critical underlying question which will no doubt be raised in parliamentary debates in the coming days, will be what numbers of migrants are expected to be flown out to Rwanda each year – given that we have seen just short of 28,000 arriving by boats to the UK thus far this year. The number of migrants arriving here in 2022 across the Mediterranean was 45,755.

The new treaty forms the major part of the assurance given by the UK Prime Minister Rishi Sunak, following the Supreme Court ruling on 15th November, at which time, the Prime Minister promised to make the Rwanda Plan ‘legally watertight’.  

A selective reading of the Supreme Court judgement

In a statement made by the Home Secretary, James Cleverly this morning, he appeared to be stealing on just some of the words of the Supreme Court judge and conveniently ignoring others. He said:

‘We are clear that Rwanda is a safe country, and we are working at pace to move forward with this partnership to stop the boats and save lives. The Supreme Court recognised that changes may be delivered in future to address the conclusions they reached – and that is what we have set out to do together, with this new, internationally recognised treaty agreement. Rwanda cares deeply about the rights of refugees, and I look forward to meeting with counterparts to sign this agreement and further discuss how we work together to tackle the global challenge of illegal migration’

It is true that the Supreme Court ruling recognised that the UK Government ‘may deliver changes in the future’ as the judgement specified:

‘The changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place when the lawfulness of the Rwanda policy had to be considered in these proceedings’

Its simple – they can’t be trusted

However, Lord Reed was very clear in explaining that the integrity of the Rwanda administration could not be relied upon. The ruling described Rwanda’s:

‘poor human rights record, extrajudicial killings, deaths in custody, enforced disappearances and torture… constraints on media and political freedom… serious and systematic defects in Rwanda’s procedures and institutions for processing asylum claims’

In plain language, the Rwanda government’s track record as outlined by such agencies as the UNHCR, said the judges, suggests that it cannot be trusted.

On November 15th, Lord Reed calmly defined in what he described as a ‘non-political decision’, clear justifications for the conclusions made by the Supreme Court judges. He said the Appeal Court was absolutely correct to make its ruling that the government’s position of trust in the integrity of the Rwanda government’s commitments was misplaced. He pointed out that Rwanda’s track record for living up to its undertakings was questionable and unsafe and importantly that based on current practice, it would not be safe to place transferred asylum seekers within their jurisdiction. He said Rwanda could not be relied on to keep the promises not to mistreat asylum-seekers sent from Britain. Lord Reed said:

‘Asylum seekers were frequently moved to another country from which they were likely to be refouled’

Sleight of hand to avoid the courts

Rishi Sunak has said that once the treaty is signed, he intends to take the extraordinary step of introducing emergency legislation in Parliament which will define Rwanda as a safe country. He has also threatened to ignore any rulings from the European Court of Human Rights that would stop removals to Rwanda. He said:

 

‘I will not allow a foreign court to block these flights. If the Strasbourg Court chooses to intervene against the express wishes of Parliament, I am prepared to do what necessary to get flights off. I will not take the easy way out’

One senior Barrister at Doughty Street Chambers, Adam Wagner, said that:

‘The Prime Minister can’t legislate away international legal obligations – the Supreme Court made that very clear … Unless the serious systemic problems with the Rwandan asylum system can be resolved within weeks, no amount of emergency legislation is going to solve the issue identified by the Supreme Court in today’s judgment’

Speaking on BBC News this afternoon, the Former Attorney General, Dominic Greaves referred to the process as ‘grossly improper’. He went on to point out that there are:

‘some officials in the Home Office who are very doubtful that even with this treaty the standards necessary to allow asylum seekers to be sent to Rwanda will be met’

He accused the government of using the Rwanda plan as more of a:

‘symbolic policy, because the government’s hope is that by showing that some people who come to the United Kingdom illegally end up in Rwanda, it will break the business model of the people smugglers. Some people have questioned whether in the light of current circumstances of mass migration, that will in fact happen at all’

The signing of this treaty today, will no doubt present yet more grounds for legal challenge in the courts and we can expect fireworks in both houses of parliament in the days to come as the Prime Minister attempts to get his emergency legislation passed on this side of a General Election. It would seem that Rishi Sunak is not only prepared to ignore the European Court of Human Rights, but also the spirit of the advice given by the UK Supreme Court, in order to be seen to be doing something meaningful about migration.

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