Three options government is considering to make Rwanda deportation plan work - and their flaws

Rishi Sunak vowed to get flights taking off by the spring after Supreme Court ruled plan was unlawful

Matt Mathers
Tuesday 05 December 2023 15:59 GMT

Related video: Foreign secretary arrives in Rwanda to sign new treaty

Home secretary James Cleverly has flown to Rwanda in a bid to get the government’s plan to deport asylum seekers back on track, following a crushing defeat at the Supreme Court.

In a unanimous decision, justices at the highest court in the land ruled that the flagship illegal immigration policy to “stop the boats” was unlawful because evidence said Rwanda was not a safe country to send migrants to.

Rishi Sunak said it was “not the outcome we wanted” but a defiant prime minister vowed to get flights to take off in the spring of next year, declaring that his plans would alleviate concerns raised by the Supreme Court.

Mr Sunak, under pressure from MPs on the right of his party to reduce migration to the UK, is said to be taking a three-pronged approach to make his Rwanda plan, which has already cost taxpayers £140m, viable.

James Cleverly has flown to Rwanda to try and salvage the plan

A new treaty with Rwanda

The first part of that plan was for the UK to update its memorandum of understanding with Rwanda to a treaty. Mr Cleverly has met with his counterpart, Vincent Biruta, to put pen to paper in a signing ceremony and to discuss key next steps on the so-called migration and economic development partnership.

Following the Supreme Court ruling on 15 November, Mr Sunak insisted that the government had for months been working on contingency measures and promised a treaty with Rwanda - and emergency legislation in parliament (more on that below) - within days. But the government has still not produced either.

Over the weekend, reports swirled as to what the final document might contain as Downing Street sought to keep its details a secret, although the treaty was expected to be aimed at addressing some of the concerns raised by the Supreme Court, including guarantees that Rwanda would not deport arrivals from the UK back to their home country.

The Sunday Times reported that Rwanda would be given a £15 million top-up payment to agree fresh terms on the agreement to take migrants who arrive in the UK on small boats.

Sunak says flights will take off by the spring

Mr Sunak met Rwanda’s president Paul Kagame on the sidelines of the Cop28 climate talks in Dubai last week, but he declined to say afterward how much more money he would spend to get the scheme off the ground and Downing Street insisted there had been no demand from Kigali for extra money.

The Daily Telegraph reported that British lawyers could be sent to advise Rwandan judges, perhaps for specific asylum case hearings or for longer periods, to help ensure appeals are granted correctly.

Cabinet minister Lucy Frazer said the Home Office was looking “very carefully” at the idea when asked about it by broadcasters on Monday. “There is an issue about processing and I know that the Home Office are looking at that very carefully,” she told BBC Breakfast.

“I know that the home secretary James Cleverly is now working with Rwanda on a new treaty, and we will be bringing forward legislation in due course.”

However Rwanda has reportedly made clear that it will not allow anything that looks like a “colonial court system”, stressing the country’s judicial independence, according to the Telegraph.

The newspaper reported that while the idea of sending lawyers to Rwandan lawyers had been discussed, it remained to be seen whether the proposal would actually make it into the treaty, which Downing Street wanted to ensure was legally watertight.

“The provisions of the treaty are the uncontentious, easy part of this negotiation within government,” a senior government source told the paper. “It is the bill that matters, and where the debate remains heated and unresolved.”

Emergency legislation

The second part of the government’s plan was to effectively ignore or override the Supreme Court’s ruling by passing emergency legislation in parliament that would designate Rwanda as a safe country, in a highly controversial move that has been criticised by eminent legal professionals and experts.

According to reports, Downing Street is considering two options when it comes to legislation. The first, the so-called semi-skimmed option, the UK’s Human Rights Act would be disapplied to Rwanda. However, it is believed this would not prevent challenges by individual migrants.

The “full-fat” option would be to remove the right of judicial review and include “notwithstanding clauses” that would allow ministers to ignore the European Convention on Human Eights (ECHR) and other international treaties in the area of asylum.

Dominic Grieve has warned the UK could not override its international obligations without consequence

But Dominic Grieve, the former Tory MP who served as attorney general under David Cameron, said those arguing for the so-called notwithstanding clauses were “living in a fantasy world”, adding that the UK could not “simply override its international obligations whenever it suits it without consequence.”

“You can do it, but it is equivalent to breaching our ECHR obligations,” he told Bloomberg after the Supreme Court ruling, adding any such move would end up in the courts in Europe.

In its ruling, the Supreme Court stressed that the ECHR was not the only international obligation relevant to the case, pointing out that “there are other international treaties which also prohibit the return of asylum seekers to their countries without a proper examination of their claims”.

The UK is also a signatory of the United Nations conventions on refugees and torture, meaning any legislation would need to address this treaty too, potentially sparking another row among backbench Tory MPs. It has been less than clear so far that Downing Street has been willing to do so.

Meanwhile, Jonathan Sumption, a former Supreme Court justice, said it would be “constitutionally really quite extraordinary” for the government to introduce emergency legislation to declare Rwanda safe.

He said he had never heard of a government “trying to change the facts, by law” and warned the PM’s plan would not get through the House of Lords. And even if it did, Mr Sumption said, it would not be recognised internationally and therefore open to challenge in the courts.

In short, the government could pass legislation to override its international obligations but it would still be open to legal challenges.

Bundle of evidence

The government is yet to send any asylum seekers to Rwanda

According to the i newspaper, the government is considering a third option: preparing a dossier of evidence designed to show that Rwanda is a safe country for asylum seekers to be sent to.

The evidence would address the points on which the Supreme Court’s ruling was based, the paper said.

Lawyers for some of the claimants who challenged the Rwanda plan in court argued that the government ignored clear evidence that Kigali’s asylum system was not fit for purpose. A No 10 spokesperson insisted last month that “substantive amounts of work” had been done to address the supreme court’s concerns - including improving asylum decision-making.

By its very nature, this approach would mean the government having to go through the courts again and it is unclear how long this would take, with Mr Sunak anxious to get planes in the air ahead of the next election, expected in the spring or autumn of next year. It also begs the following question: if adequate evidence proving Rwanda was safe already existed then why wasn’t it provided to the Supreme Court in the first instance?

Rwanda is a ‘safe country’

James Cleverly at a press conference in Rwanda

Ahead of his visit on Tuesday, Mr Cleverly insisted that Rwanda was a “safe country” as senior Tories on the right of the party plotted to stage a rebellion if their demands to pull the UK out of the ECHR were not met, warning the government it was “three strikes and you’re out” after previous attempts to send asylum seekers to Kigali failed.

Following the signing ceremony on Tuesday, Mr Cleverly again insisted that Rwanda was a safe country and that the new treaty addressed all the issues addressed by the Supreme Court.

The home secretary said he “cannot see any credible reason” to question Rwanda now after he signed the deal in Kigali, where he hopes the first migrant flights will land in the spring.

He said categorically that the UK has not paid any more money to Rwanda in addition to the £140 million already handed over. But he signalled that there will “inevitably” be further costs to cover the new burdens imposed on the Rwandan legal system.

“Of course, when a country is taking on responsibilities as Rwanda is doing, it is right and proper that there is remuneration to reflect the additional costs that they are bringing on,” Mr Cleverly said.

Mr Cleverly promised that “emergency” legislation will come before Parliament “soon” to determine that Rwanda is a safe destination, under the second tier of the Government’s approach. But he could not guarantee that the first group of asylum seekers who arrive in the UK on small boats would be sent to Kigali on a one-way ticket in the coming months.

Instead, he told reporters: “We want to see this part of our wider migration plan up and running as quickly as possible. “We feel very strongly that this treaty addresses all of the issues raised by their lordships in the Supreme Court and we have worked very closely with our Rwandan partners to ensure that it does so.”

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