It is not too late for the government to align UK immigration policy with the principles of international law. It is probably too late for Rishi Sunak to derive any political benefit from a change of direction now that the supreme court has rendered his existing scheme inoperable. He must still make that change in defiance of demands from Conservative MPs to push on faster down the wrong path.
The court’s ruling is unambiguous on the point of law that prevents implementation of the government’s proposed scheme for processing asylum claims in Rwanda. Refugees deported by that mechanism would not have sufficient guarantee against being returned to the places from which they had fled in fear of persecution, torture or death. That protection – the principle of non-refoulement – is a foundational tenet of human rights law and the refugee conventions to which the UK is bound.
The government’s policy falls foul of more than the European convention on human rights (ECHR). Non-refoulement is embedded in the whole apparatus of international law that was assembled in a spirit of determination never to repeat the horrors of the second world war.
For Mr Sunak to find himself on the wrong side of that argument is not just politically awkward. It is shameful. It is also evidence of abysmal judgment. The problems with the Rwanda plan were obvious from the start. Even if the prime minister were comfortable with a policy that made refugees unsafe, he should have been warned off this scheme by the character of its advocates. It was initiated when Boris Johnson was prime minister and Priti Patel was home secretary. It was then embraced with fanatical zeal by Suella Braverman. None of those people could be relied upon to care about the rule of law or good government. They represent a strand of post-Brexit Tory radicalism that despises the judiciary as an obstacle to the gratification of hard rightwing dogma camouflaged as “the will of the people”.
Mr Sunak was foolish to let his credibility become a hostage to that faction. Tackling illegal migration while retaining a humane asylum policy is a task too complex to be entrusted to ideologues who see adherence to treaties as vassalage to foreigners.
Conservative MPs are demanding that Britain abandon those obligations. Mr Sunak plans instead to satisfy concerns about Rwanda’s reliability as a place of safety through a new treaty with Kigali, reinforced by emergency legislation in the Commons. Whether that is sufficient remedy to the issues raised by Wednesday’s adjudication is sure to be tested again in the courts. In the event of further obstruction, the prime minister declares himself ready to “revisit” international relationships and reject the influence of “foreign courts”.
That is a dangerous bluff. Withdrawal from the ECHR would be an act of diplomatic self-harm and Mr Sunak knows it. He rightly moved away from Mr Johnson’s anti-diplomatic technique of threatening to abandon done deals in order to get his way in negotiations. Repudiating the irresponsible, vandalistic Brexiter approach to law is one of the current prime minister’s few achievements in office. To resort once again to the language of maverick unilateralism and making a fetish of national sovereignty in rejection of international obligations would be a grimly retrograde step.
The prime minister needs an asylum policy that works, focusing on clearing the backlog of cases and engaging constructively with the rest of Europe. He has already wasted a year and many millions of pounds on a misguided policy that has obviously failed. It is not too late for Mr Sunak to try decent and responsible government instead, but he is running out of time.
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