The UK’s headline immigration policy faces a crunch moment on Wednesday, when the supreme court will decide if it is lawful to send asylum seekers to Rwanda. Here’s what you need to know:
What is happening on Wednesday?
Five justices of the supreme court will issue a decision at 10am on the government’s plan to deport asylum seekers to the east African country, a central plank of the Conservative party’s immigration policies under the governments of Boris Johnson, Liz Truss and Rishi Sunak.
A positive outcome for the government could result in asylum seekers being placed on planes against their will and sent 4,000 miles to Rwanda.
If the government loses, it will lead to demands from dozens of Tory MPs for Sunak to draw up plans to leave the European convention on human rights and put those plans at the heart of the Conservative party manifesto.
Neither side is supposed to know the decision in advance because the court is not sharing the ruling in advance, though it has been reported that the government is braced to lose.
How did we get here?
Amid a backlash over small boats carrying asylum seekers across the Channel from France, in April 2022 the then home secretary, Priti Patel, signed an agreement to send “tens of thousands” of “irregular” asylum seekers – anyone who does not arrive with prior permission – to Rwanda.
The five-year agreement set out a memorandum of understanding for which the UK government has so far paid £140m. Britain will pay another £12,000 for each person sent there.
In exchange, the Rwandan government said it will house and settle the refugees, and process their claims. There is no official route back to the UK if the refugees’ asylum claims are deemed to be genuine.
How many people could be sent to Rwanda under the scheme?
The scheme is uncapped but the immigration minister, Robert Jenrick, said in a parliamentary question in December 2022: “Rwanda has made initial provision to receive 200 people and has plans to scale up capacity once flights begin.”
Why has it taken so long to decide if the scheme is lawful?
The courts, domestic and European, have so far held up the removal of anyone to Rwanda under the scheme.
When a plane carrying detained asylum seekers was waiting to take off for the capital, Kigali, in June 2022, a last-minute European court of human rights ruling stopped their removal.
In December 2022, the high court ruled that the Rwanda plan is lawful and does not breach the UN Convention on Refugees.
But in June 2023, the court of appeal ruled against the government on a single issue of safety, saying there was a real risk of asylum claimants being returned to their country of origin where they could face inhumane treatment.
The government appealed against that ruling to the supreme court, which will is due to say whether it agrees with the court of appeal.
What is the European convention on human rights (ECHR)?
Developed during the second world war, it came into effect in 1953 to ensure governments could not dehumanise and abuse individuals’ rights.
The UK was the first nation to ratify the convention in March 1951. The Human Rights Act of 1998 enshrined the convention in UK law, allowing the rights guaranteed by the convention to be enforced in UK courts.
A government pledge to reform human rights laws was included in the Tory manifesto in 2019.
What are the risks if the UK leaves the ECHR?
The Human Rights Act, and the ECHR that it incorporates, are embedded as a key pillar of devolution.
Under the Good Friday agreement, the ECHR underpins human rights guarantees in Northern Ireland. Remaining signed up to the ECHR also helps ensure judicial and legal cooperation with the EU under the terms of the Brexit deal.
What form will the ruling take on Wednesday?
It is not expected to overturn the high court and court of appeal judgments that the Rwanda plan is lawful, and will instead be focused on the question of safety in Rwanda.
The ruling may be complex rather than a straightforward win or loss for the government.
What will happen if the government wins?
This depends on the terms of the judgment, and what exactly it says. But there is a scenario where the government could begin planning to send asylum seekers to Rwanda once again.
According to the Refugee Council, the first flight could in theory take off before Christmas, depending on the terms of the judgment and whether the government is ready.
However, Whitehall sources said that no flights will take off before February in what they describe as a “soft launch”.
If the applicants lose, they are expected to consider whether the judgment leaves scope for taking the case to the European court of human rights in Strasbourg and could request another interim injunction to temporarily halt flights to Rwanda until the case has been fully considered the European court.
What will happen if the government loses?
Suella Braverman, in her departure letter on Tuesday, claimed the government had no plan B because it had failed to insert “notwithstanding clauses” into the Illegal Migration Act, which is yet to be implemented.
But if the government loses, ministers are expected to explore other options including a new deal with Rwanda addressing the supreme court judgment and any deficiencies in the Rwandan scheme.
They could elevate the existing deal to treaty status with parliamentary approval, making it harder for the courts to intervene.
Another option is to expand the list of countries under the Illegal Migration Act whose nationals’ claims are automatically inadmissible and can thus be sent back quickly.
