In a unanimous Supreme Court ruling, five of the UK’s most senior judges have ruled that the Government’s plan to deport some asylum seekers to Rwanda is unlawful.
With a 56-page judgment on Wednesday, the UK’s highest court rejected the Home Office’s argument that problems past and present with Rwanda’s asylum system are “not a reliable guide” to how asylum seekers sent from the UK under the plans would be treated.
In their ruling, which the other justices agreed with, Lords Reed and Lloyd-Jones said Rwanda’s history “cannot be effectively ignored or sidelined” as suggested.
They said there was “no dispute” that the Rwandan government entered into its deal with the UK “in good faith”, with strong incentives to follow the terms of the arrangement.
Lords Reed and Lloyd-Jones continued: “Nevertheless, intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice.
“The central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system.”
The justices concluded there were grounds for believing that sending asylum seekers to Rwanda would “expose them to a real risk of ill-treatment” through being returned to their country of origin.
The Supreme Court justices later said there was “evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention”.
At the start of the decision, the judges said they were not dealing with the political aspects of the controversial policy.
Lords Reed and Lloyd-Jones said: “The court is not concerned with the political debate surrounding the policy, and nothing in this judgment should be regarded as supporting or opposing any political view of the issues.”
In his summary of the decision, Supreme Court president Lord Reed said there were several international arrangements over the treatment of refugees, particularly protecting their right not to be returned to their country of origin.
These include the Refugee Convention, the UN Convention Against Torture, the UN International Covenant on Civil and Political Rights, as well as the European Convention on Human Rights.
He continued: “It is therefore not only the European Convention on Human Rights which is relevant to this case, as is sometimes thought.
“There are other international treaties which also prohibit the return of asylum seekers to their countries of origin without a proper examination of their claims.”
Lords Reed and Lloyd-Jones later said in their ruling that the High Court had wrongly dismissed the evidence of the UN Refugee Agency, the UNHCR, about problems with the Rwandan asylum system.
They said: “UNHCR’s evidence will naturally be of greatest weight when it relates to matters within its particular remit or where it has special expertise in the subject matter.
“Its evidence in the present case concerns matters falling within its remit and about which it has undoubted expertise.”
While the Supreme Court ruled the policy as it stands is unlawful, the court did not rule out plans being lawful in the future.
Lords Reed and Lloyd-Jones said: “As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.
“In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.
“The right of appeal to the High Court is completely untested and there are grounds for concern as to its likely effectiveness.
“The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place.”
Lords Reed and Lloyd-Jones added: “The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”
