Rishi Sunak announced his latest attempt to kickstart the Rwanda scheme on Wednesday evening, in the form of a new bill that deems the African country safe for asylum seekers and gives ministers powers to override some legal blocks.
Senior Tory MPs will spend the next few days deciding whether to back it or not – but what does it actually say, and will it work?
Why has the government published another bill relating to its Rwanda deportation plans?
Sunak has promised to “stop the boats” coming across the Channel, and is convinced that there needs to be a deterrent if the number of people is to be reduced.
Following the passing of two previous bills to become the Illegal Migration Act and the Nationalities and Borders Act, the supreme court ruled that the Rwanda policy was unlawful, all but killing the policy stone dead.
To ensure that the new agreement is harder to challenge in the courts, and in the hope that it might satisfy some of the supreme court’s concerns, ministers have drawn up the safety of Rwanda (asylum and immigration) bill, which is supposed to override the supreme court’s concerns and revive the policy.
What did the supreme court find?
Five judges found that the policy breached the principle of “non-refoulement”, which protects people seeking asylum from being returned to a country where they would face a real risk of torture or inhuman or degrading treatment.
The court found there was a risk of Rwanda failing to respect the non-refoulement principle, which means that removing asylum-seekers to Rwanda would itself constitute a breach of that principle by the UK.
How does it address the supreme court judgment?
It is an attempt to reverse by law a finding of fact by the supreme court. The bill provides, in clause 2 (1), that “every decision-maker” – which include courts and tribunals – “must conclusively treat the republic of Rwanda as a safe country”.
It means that if the bill were enacted, it would become legally impossible in UK courts to challenge government decisions to remove asylum seekers to Rwanda on the ground that it is not a safe country. Even if it was presented with overwhelming evidence that Rwanda was unsafe, a court would have to rule that it was a safe country.
Will there be domestic legal challenges?
There could be. Section four of the bill leaves room for challenges of removal decisions on the basis of “evidence relating specifically to the person’s particular individual circumstances”.
According to Mark Elliott, professor of public law at the University of Cambridge, there could be a challenge on the grounds that the bill is unconstitutional because it reverses a supreme court judgment.
For a court to rule, in effect, that parliament had exceeded its authority by seeking to limit the supreme court’s constitutional role, would be fraught with risk for the judiciary.
Will there be legal challenges in Strasbourg?
Lawyers say this is likely. The bill cannot prevent claimants from going to the European court of human rights in Strasbourg if they have been unable to enforce their rights in the domestic courts.
The UK will remain bound by article 3 of the ECHR, which reflects the non-refoulement principle, and it will remain subject to the jurisdiction of the European court of human rights.
Will the bill stop so-called ‘pyjama injunctions’?
Yes, officials insist it will stop the 11th-hour injunctions that previously stopped a flight carrying people seeking asylum in the UK from being taken to Kigali, the Rwandan capital. Clause five of the bill gives ministers the powers to ignore interim measures of the Strasbourg court relating to removals to Rwanda.
Are there other ways of challenging the bill?
If compelling evidence emerges that the Rwandan authorities are systematically departing from the standards set by the treaty, it could prompt further challenges.
Can the government deport people while challenges are under way?
Yes. Rishi Sunak made clear last month, after the supreme court judgment, that that government expects to be able to send people to Kigali but would bring them back if a court ruled that they should.
He said the new treaty would “provide a guarantee in law that those who are relocated from the UK to Rwanda will be protected against removal from Rwanda … and it will make clear that we will bring anyone back if ordered to do so by a court”.
What happens if the government does what it has threatened to do and ignores a Strasbourg injunction?
The bill gives ministers the power to override temporary injunctions and deport people to Rwanda even if the European courts have not yet ruled on whether the scheme is legal. Sunak is taking a gamble that he can do so without any formal sanction from Strasbourg and without prompting a walkout by his centrist MPs.
What if Strasbourg rules that the scheme is illegal even after asylum seekers have been deported?
If Strasbourg rules that a country is in contravention of the convention, that country can make amends in a variety of ways. However, if European judges rule that asylum seekers in Rwanda must be brought to Britain, Sunak has indicated that he will comply.
This raises the prospect that Sunak could ignore a Strasbourg ruling to deport asylum seekers, only to bring them back at a later date if the court rules the scheme illegal. Tory officials hope that if that happens, the original deportation will come before an election, then return afterwards.
