In a statement to the House of Commons, Sunak promised to finalise and ‘ratify without delay’ a treaty with Rwanda, which 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 back anyone if ordered to do so by a court’. Parliament could then pass legislation to confirm that Rwanda is a safe country.
However, Bar Council Chair Nick Vineall KC said: ‘The Bar Council notes with grave concern the Prime Minister’s suggestion that legislation might be introduced the purpose of which is apparently to deem Rwanda to be a safe country to which to return asylum seekers.’
Vineall said the Supreme Court’s decision ‘upheld the principle that a scheme, like the proposed Rwanda scheme, could be lawful, so long as, as a matter of fact, Rwanda was a country to which refugees could be returned without a risk of refoulement (that is to say without there being a risk that refugees would be returned to the country from which they were fleeing).
‘The Supreme Court held that the Court of Appeal had been right to decide that Rwanda was not such a country. The Supreme Court decision therefore turns on a question of fact.
‘If parliament were to pass legislation the effect of which was to reverse a finding of fact made by a court of competent jurisdiction, that would raise profound and important questions about the respective role of the courts and parliament in countries that subscribe to the rule of law.
‘We hope that any such legislation would only be brought forward after the most anxious and careful consideration of its constitutional propriety.’
Ruling in R (AAA (Syria)) and others v Secretary of State for the Home Department [2023] UKSC 42, five Justice including Lord Reed unanimously dismissed the Home Secretary’s appeal and upheld the Court of Appeal’s judgment that the Rwanda policy is unlawful. This is because there are substantial grounds for believing asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda.
The case concerned the lawfulness of the policy that certain people seeking asylum in the UK should be sent to Rwanda in order to claim asylum there, their claims being decided by the Rwandan authorities and, if successful, being granted asylum in Rwanda.
Giving the main judgment jointly, Lords Reed and Lloyd-Jones said the central issue in the case was ‘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 past and continuing practice of refoulement (including in the context of an analogous arrangement with Israel), and the scale of the changes in procedure, understanding and culture which are required’.
They said the right of appeal [from Rwanda] 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’.
Nick Emmerson, Law Society president, said: ‘The ruling must also call into question the Illegal Migration Act as a whole as it is heavily connected to the Rwanda policy.
‘The Act is reliant on removing people from the UK. The Rwanda removals agreement has been ruled unlawful and there are currently no other removal agreements in place to “safe” third countries. A growing number of people will be left in limbo under the Act as they cannot be removed, and they cannot be granted asylum.’
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