A flagship UK government policy has suffered a major setback after the court of appeal ruled that it would be unlawful to send asylum seekers to Rwanda to have their claims determined there.
The three judges who heard the case made the decision by a majority of two to one. Rishi Sunak said he would seek leave to appeal against it at the supreme court.
Why has the court reached this ruling?
The appeal court ruling came after two judges at the high court dismissed a series of legal challenges to ministers’ plans and found that the Rwanda proposals were consistent with the government’s legal obligations.
The two out of three appeal court judges decided it would not be lawful to send asylum seekers to Rwanda because of the risk that even if they had a strong protection claim, they could be forcibly returned to the home country they had fled from.
Evidence from the United Nations high commissioner for refugees (UNHCR) played an important role. UNHCR welcomed the ruling after expressing concerns about what it called the “externalisation” of asylum obligations.
Assurances from the Rwandan government were insufficient in the view of a majority of the court, who referred to the high number of cases rejected by the Rwandan government of asylum seekers from conflict zones such as Syria, Yemen and Afghanistan.
What legal avenues are still open to the government?
While government lawyers are studying the ruling and have until 6 July to lodge an appeal, the prime minister issued a statement saying that the government would be doing so.
Sunak’s statement noted that the lord chief justice, one of the three judges ruling on Thursday, had disagreed with his colleagues, deciding that the Rwandan government had provided the assurances necessary to ensure there was no real risk that asylum seekers relocated there would be wrongly returned to third countries.
As government lawyers are expected to emphasise, the UNHCR has its own refugee scheme for Libyan refugees in Rwanda, albeit on a temporary basis.
But if the government does go to the supreme court and wins there, then the appellants who were successful in the court of appeal could take the case to the European court.
What are the political ramifications?
All of the above will take time, and it is therefore increasingly unlikely that flights to Rwanda will take off before the general election, which has to be held before January 2025.
That means one of the five pledges on which Sunak has pinned the Tories’ hopes of re-election – to “stop the boats” – is on shaky ground if the supposed deterrent effect of the Rwanda policy is not realised.
Polling published on Thursday by YouGov found that more than half of the public (56%) who were surveyed earlier this month think it unlikely that migrants will ever be deported to Rwanda under government plans.
The policy has divided people – with 42% in favour of the proposal and 37% opposed in October – but a key question in any coming election will be who supporters of the policy blame for its failure.
Already, figures such as Nigel Farage have been turning their fire on the judiciary.
What are the other implications?
The ruling has resurrected talk among some Tory backbenchers of the UK withdrawing from the jurisdiction of the European court of human rights (EHCR).
The first flight of the Rwanda asylum plan was halted last year after an intervention from ECHR, which led to fresh challenges in the UK courts.
Indeed, the home secretary, Suella Braverman, has favoured the idea, which has been floated by the right-leaning thinktank Policy Exchange.
Legal experts and others point out that the UK could end up in the company of states such as Russia were it to take what would be widely regarded as a drastic step.
Meanwhile, observers such as the Law Society have said that the ruling calls into question the government’s whole illegal migration bill, which would place a legal duty on the government to detain and remove those arriving in the UK illegally, to Rwanda or another “safe” third country.
The large backlog of people due to be removed under the bill would build, the society said, adding: “They will be left in limbo and could remain in detention or government supported accommodation indefinitely.”
