November 15, 2023 - 1:30pm

The Rwanda plan is dead. This morning, a panel of five Supreme Court justices unanimously delivered the death blow to the scheme, the centrepiece of the Government’s efforts to stop irregular boat crossings across the Channel.

The case hinged on the principle of non-refoulement, according to which nations are forbidden from sending asylum seekers back to a country where they risk persecution. Rwanda, the Court decided, could not be trusted to comply with the principle, making the Government scheme unlawful. 

The outcome was perhaps inevitable. Parliament could have, of course, legislated to override the European Convention on Human Rights, the Refugee Convention, and several other legal instruments, all of which guarantee the principle of non-refoulement. But faced with the political and diplomatic costs of such a course, the Government instead chose to argue that Rwanda was a safe third country. That was the gambit that failed today.

Much of the evidence against Rwanda came from the United Nations High Commissioner for Refugees which, rather unusually for a UN agency, intervened in the case. As both the Divisional Court and the Supreme Court noted, the UNHCR is not an entirely disinterested party: it has consistently opposed the sending of asylum seekers to third countries or, in blunter terms, wealthy countries offloading their asylum seekers to third countries across the world.

Yet despite the UNHCR’s partiality, there is no denying that the Rwandan asylum determination system does not have a great record where non-refoulement is concerned, even though it is hardly a terrible one by global standards. The UNHCR has its own version of the Rwanda plan, processing asylum seekers from Libya in Rwanda, then resettling them in third countries. Rwanda also hosts large numbers of refugees from neighbouring countries, though they do not have to go through the Rwandan asylum system, whose credibility was the linchpin of the case.

What next? The Government can find another Rwanda, though few states would be willing to not only process refugees, but also allow them to remain there if their claim is successful. The latter element is what made the Rwanda plan so distinctive compared to its existing European counterparts (only last week, Albania agreed to allow Italy to build two refugee processing centres on its territory, but their inmates will have the right to apply for asylum in Italy). 

Another possibility, proposed by the legal scholar Richard Ekins, is to switch from an “outsourcing” policy to an “offshoring” one. Under the latter, asylum seekers would be removed to a British Overseas Territory and have their claims processed by British officials. If successful, refugees would be resettled in a third country. This approach would be harder to challenge in the courts, as well as complying with the United Kingdom’s international obligations.

More broadly, the Supreme Court’s judgement is certain to lead to the renewal of calls for the United Kingdom to leave the ECHR. Probably for this very reason, in his oral remarks Lord Reed was at pains to emphasise that non-refoulement was enshrined not only in the ECHR, but in other treaties and domestic statutes too. 

In her resignation letter, Suella Braverman accused Rishi Sunak of “magical thinking” and of using “wishful thinking as a comfort blanket to avoid having to make hard choices” over the small boats issue. This was apparently a result of his refusal to legislate to override the UK’s treaty and domestic legal obligations, which would have shielded the Rwanda plan from successful judicial review. Instead, the Government relied on a throw of the dice in front of the courts, which has now failed. Whatever one thinks of the morality of the Rwanda scheme or of the former home secretary, it is today hard to disagree with her assessment.

Yuan Yi Zhu is an assistant professor at Leiden University and a research fellow of Harris Manchester College, Oxford.