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  6. Editorial – Britain’s Migrant Policy in the Crosshairs

Editorial – Britain’s Migrant Policy in the Crosshairs

Louvain-La-Neuve

On 15 November, the British Supreme Court (R [on the application of AAA (Syria) and Others] [Respondents/Cross Appellants], [2023] UKSC 42) unanimously ruled that the government’s plan (Memorandum of Understanding) to deport asylum seekers who have arrived in the UK illegally to Rwanda was illegal. This ruling came at the end of a long saga that began a year ago under Boris Johnson’s government. In mid-2022, an initial flight was canceled at the last minute by the European Court of Human Rights. Then, at the end of June 2023, the London Court of Appeal ruled that the project was “unlawful,” finding that Rwanda could not be considered a “safe third country.” The judges found that there was “a real risk that people sent to Rwanda would (subsequently) be returned to their country of origin where they would face persecution and other inhuman treatment.” This reasoning was validated by the Supreme Court on Wednesday.

François van der Mensbrugghe
Professor at the Law Faculty of the Université catholique of Louvain (UCL-Brussels site), and at the Law Faculty of the University of Liège (ULg). Comments on this contribution are welcome at francois.vandermensbrugghe@uclouvain.be or fvdmensbrugghe@uliege.be.

Would it be presumptuous to consider that the UK’s Illegal Migration Bill, that became law on 20 July 2023, was bound for the courts...? The stated aim of this piece of legislation was to prevent and deter “unlawful” migration by those using unsafe routes to gain access to the UK. Primarily, this meant stopping people from crossing the Channel in small boats or other “irregular” means. The Act placed a legal duty on the Home Secretary to “detain and swiftly remove” such people upon their irregular arrival on British shores, and send them back to their home country or to a safe third country such as Rwanda (4,000 miles away). The asylum claims of these people would be declared “inadmissible” in the UK, i.e., their applications for sanctuary would not be processed by the Home Office (the duty to remove would not apply to unaccompanied children: under the circumstances, the Home Secretary would only be required to remove them when they turn 18). In comparison to other pieces of legislation, it is agreed that the Illegal Migration Bill passed Parliament quickly. It had been announced in December 2022 as a component of Prime Minister Rishi Sunak’s pledge to “Stop the Boats.” It was then laid before Parliament in March 2023 and debated for five months before receiving royal assent in July 2023. Notwithstanding, Sunak’s migrant policy should not be seen as a pop-up scheme, thrust upon Westminster from one day to the next. The problem had been running through the political pipeline for quite some time in a throwback to the country’s desire to “take back control” of Britain’s borders as promised after Brexit. Under Boris Johnson (and his Home Secretary, Priti Patel), the UK government had signed a Migration and Economic Development Partnership—MEDP—with Rwanda in April 2022, in effect leaving the processing of asylum seekers’ claims in the hands of Rwandan authorities and hence “outsourcing” migrant handling (as part of the deal, the UK had pledged to pay Rwanda £140m). Ten asylum seekers from Syria, Iraq, Iran, Vietnam, Sudan, and Albania, all of whom had arrived in the UK by irregular means, crossing the Channel in small boats, brought a claim against the policy before English courts. All the while, mid-June 2022, the government sought to carry out its new migrant policy by placing a number of asylum seekers with removal directions on a plane bound for Kigali. In a dramatic eleventh-hour ruling, the European Court of Human Rights prevented any of these removals from happening, an hour and a half before the flight was due to take off. The ECtHR stated it had taken particular account of evidence that asylum seekers transferred from the UK to Rwanda would not have access to fair and efficient procedures for the determination of their status. The decision came as an embarrassing hammer blow to Boris Johnson. In response, the Prime Minister threatened to withdraw the UK from the European Convention on Human Rights and accused lawyers that represented asylum seekers of aiding human traffickers. With respect to proceedings before British courts, the High Court of Justice, in a lengthy judgment delivered on 19 December 2022, rejected a challenge that the government’s migration policy was unlawful. The decision nevertheless partially rebuked the government’s policy in that the judges said the government had failed to consider the circumstances of the individuals it had tried to deport under the scheme. After a four-day hearing, the Court of Appeal reversed the lower court’s decision and ruled by a majority that Rwanda was not a “safe third country” inasmuch as there was a real risk that asylum seekers sent to the East-African country would be wrongly returned to their home country, where they faced persecution or other inhumane treatment, while in fact they had a good claim for asylum (the Lord Chief Justice, Lord Burnett, dissented and sided with the UK government). Permitted to intervene at the hearing, the United Nations High Commissioner for Refugees (“UNHCR”) forcefully argued that Rwanda had a record of human rights abuses towards refugees within its borders, including refoulement. Under the conditions, the refugee agency added, the Home Office would not be able to guarantee the safety of asylum seekers who were deported to Rwanda. While the judges of the Court of Appeal heard the UNHCR’s arguments and deemed that the plans to send asylum seekers to Rwanda were unlawful, they also struck a cautious note when stressing that their decision “implies no view whatever about the political merits of the Rwanda policy” and said that they were unanimous that the Rwandan government’s guarantees and assurances had been made “in good faith.” The Court of Appeal granted the Secretary of State permission to appeal to the Supreme Court against its decision. The Supreme Court itself subsequently granted the claimants permission to cross-appeal in respect of different matters that had been rejected by the lower courts.

At the heart of the matter was determining whether there was a breach of British domestic legislation (most notably the 1993 Asylum and Immigration Appeals Act), the European Convention on Human Rights (Article 3), and other international conventions to which the UK was party: see the United Nations 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“the Refugee Convention”) (Article 33(1)), the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (“UNCAT”) (Article 3(1)), along with the United Nations International Covenant on Civil and Political Rights of 1966 (“ICCPR”).

Suffice it to say that a five-strong panel of the Supreme Court focused primarily on the grounds concerning refoulement. In a unanimous judgment delivered on 15 November 2023, the Supreme Court devoted considerable attention to the principle of non-refoulement as given effect by the ECHR (most notably drawing on the ECtHR’s rulings in Soering v. United Kingdom of 1989, and MSS v. Belgium and Greece of 2011). With the 1998 Human Rights Act giving domestic effect to the ECHR, there was no doubt for the Supreme Court justices that it was “unlawful […] for the Secretary of State to remove asylum seekers to countries where there are substantial grounds to believe that they would be at real risk of ill-treatment by reason of refoulement” (§ 28). The justices emphasized that British courts had to make their own assessment of whether there were substantial grounds for believing that there was a real risk of refoulement. Whilst pointing out that courts were “to attach importance to the government’s view as to the value of assurances given by another country,” they were not expected to demonstrate blind deference to the government’s assurances (§ 52). This could be explained by the fact that “the government is not necessarily the only or the most reliable source of evidence about matters which may affect the risk of refoulement” (§ 55). The Supreme Court drew on the case law of the ECtHR to the effect that other factors should be taken into account, including “the general human rights situation in the receiving state, the receiving state’s practices, and its record in abiding by similar assurances, whether given to the United Kingdom or to other states” (§ 55). Stated differently, it is an assessment of the evidence as a whole that counts and not simply the Minister’s words on the assurances given by another country. In this respect, the Supreme Court devoted considerable time weighing Rwanda’s record and relying on specific instances raised by the UNHCR, considered to be of “particular significance” (§ 64). Drawing these threads together, the Supreme Court considered the High Court should not have dismissed the evidence submitted to it by the UNHCR and it approved the Court of Appeal’s interference with its conclusion. The Supreme Court itself undertook a review of the general human rights situation in Rwanda concluding it raised “serious questions as to its compliance with its international obligations” (including UNCAT and the ICCPR) (§ 76). The Supreme Court further delved into the adequacy of Rwanda’s asylum system. In a scathing appraisal, the Court singled out the outcome of the asylum process that showed 100% rejection rates for nationals of Afghanistan, Syria and Yemen, from which asylum seekers removed from the UK would doubtless emanate. Referring to an assessment made in the Court of Appeal’s judgment (Underhill L.J., at § 156), all of this represented “a culture of, at best, insufficient appreciation by […] officials of Rwanda’s obligations under the Refugee Convention, and at worst a deliberate disregard for those obligations” (§ 88; see also § 104). In a word, the overall assessment given by the Supreme Court was damning. The ruling effectively put an end to the idea of shipping off migrants to Rwanda or any other third country where there was a real risk genuine refugees would be sent back to the countries they had fled.

The fallout from the Supreme Court’s ruling was immediate, with ideas to address its effects spreading out in all directions. Some envisaged finding another third country for asylum seekers. Just days before the UK Supreme Court’s judgment, Giorgia Meloni reached an agreement with Prime Minister Edi Rama of Albania to build centers near Tirana to house those reaching Italy’s shores (accommodating up to 3,000 people). Just two days before the Supreme Court’s judgment, a cabinet reshuffle led to the replacement of Suella Braverman as Home Secretary by James Cleverly. Hardly had the ruling been released that Cleverly embarked on the idea of entering into a new treaty with Rwanda. Prime Minister Rishi Sunak himself pushed ahead with the strange proposal of “disapplying” the Human Rights Act to enact emergency legislation in an effort to stave off legal challenges against his immigration policy. The idea would doubtless tear the Conservative party apart, leading an unknown but significant swathe of Tory MPs to vote with Labour to block any such change. Others, including in Rishi Sunak’s cabinet, insist the UK should leave the 46-member European rights Convention altogether to give it a “free-hand” on migrants. The argument is specious. The Supreme Court in its ruling of 15 November was clear on this point. The legal basis for its decision was not just the ECHR but a host of other international conventions, most notably the 1951 Refugee Convention that the UK was among the first to sign. Leaving the European rights Convention would not make the difference. The argument is further dangerous. The European Convention on Human Rights is key to the functioning of the Good Friday Agreement that underpins the peace process in Northern Ireland. In response to this contribution’s opening question as to whether it would be presumptuous to consider that the UK’s Illegal Migration Bill was bound for the courts, the answer is a safe No. It would not be presumptuous. The courts were more likely than not to position themselves in these matters. The English poet John Donne (1572–1631) famously wrote, “No man is an island.” Britain—an island—is embedded in a sea of international norms that it entered into of its own volition. Britain cannot go it alone. Its migrant policy and the plight of tens of thousands of asylum seekers depends on compliance with the rules it willingly agreed to. Thankfully, the Supreme Court highlighted its concern to preserve the UK’s reputation as a champion of the international rule of law.

 

 

To cite this commentary: F. van der Mensbrugghe, “Britain’s Migrant Policy in the Crosshairs”, Louvain Migration Case Law Commentaries, November 2023.

 

Photo by abdullah ali on Unsplash

Publié le 06 décembre 2023