They laid it out, word by word, sentence by sentence. And by the end, Suella Braverman’s reputation lay tattered in the mud. Today’s Supreme Court ruling on the Rwanda scheme was a devastating moment of truth for the former home secretary. It lay bare not just her practical and operational incompetence, but the tawdry nature of her moral disposition.
The manner was forensic and disinterested. The language was technical and legalistic. But there was something profoundly beautiful about what happened this morning. It was a demonstration of the great liberal principle of the division of powers: an independent judiciary, upholding the rule of law against a government misusing executive power. And it did so not to safeguard the powerful, but to protect the most marginalised people on earth.
There will be a lot of bitter, mean-spirited noise about this judgement in the days to come. The Prime Minister will lash out against it. Tory backbenchers will scream themselves hoarse about it. But that was the truth of the matter, if they had eyes to see it. It was a demonstration of why we can still be proud of this country. It’s because of days like today and principles like these. It’s because of the structures we have put in place to restrain the powerful and defend the powerless.
At the heart of the case was the principle of non-refoulement. It sounds esoteric and technical. In fact, it is a basic ethical rule for those who still care about things like human rights. It is a fundamental principle of international law.
The principle is this: countries which receive asylum seekers must never return them to a country where they’re in danger of persecution. No matter what happens, we must make sure that the people fleeing oppression, torture and death are protected from those who would harm them. It is a grand, humane thing, one of those ideas which defines civilisation.
For all Braverman’s talk of leaving the European Convention of Human Rights (ECHR), this principle is established across international law, in multiple treaties the UK has signed up to. The Refugee Convention, the UN Convention against Torture, the UN International Covenant on Civil and Political Rights. The list goes on. It’s also in our domestic law, including the Asylum and Immigration Appeals Act 1993, the Human Rights Act and the Nationality, Immigration and Asylum Act 2002.
At no point have any of the courts which considered this case said the Government is prevented from sending asylum seekers to third countries. But it is still restrained by law. It must demonstrate that the people sent to these countries are not at risk of non-refoulement. And that was where the problem lay.
The UNHCR refugee agency provided two key pieces of damning evidence.
The first was that the Rwanda experiment has already been tried. In 2013, the country signed an agreement with Israel, in which Eritrean and Sudanese asylum seekers would be sent to Rwanda for processing. And what happened? Rwanda broke the agreement. Asylum seekers who arrived in Rwanda were routinely moved clandestinely to Uganda. In three cases, the only thing that prevented refoulement was the direct intervention of the UNHCR.
The second was that Rwanda’s asylum system did not provide asylum seekers with a fair process. And if it didn’t provide a fair process, it could not guarantee that it prevented refoulement.
Decisions are initially made by Rwandan government ministers, rather than officials or judges. Some asylum claims were summarily rejected, without written reasons and no right of appeal. Where written reasons are provided, they are often perfunctory. There has quite literally never been an appeal against an asylum decision. There was a 100 per cent rejection rate during 2020-2022 for nationals of Afghanistan, Syria and Yemen – citizens from live war zones who are nearly always granted refugee status in the UK.
There was simply no empirical or logical basis for the Government to claim that Rwanda was a safe country. It patently was not. It could not guarantee non-refoulement.
This has been a grotesque spectacle of inadequacy. Conservatives have spent the last few months ranting about leaving the ECHR, but that wouldn’t even work. As the court laid out today, the principle of non-refoulement is in multiple treaties and pieces of domestic legislation. We could leave the ECHR and the Rwanda policy would still be unlawful.
The Government could have spent the last few months working with Rwanda to improve its asylum system. It could have tried to make sure that it addressed the evidence from the UNHCR. That might have addressed the concerns of the court. It did not do so. Instead, it spent the time blathering on about the ECHR, despite the fact it wouldn’t even solve the problem they had created.
Even if it had done that, it would still have been pointless. Rwanda made a total of 487 asylum decisions in 2021. As of July 2023, there were 136,779 cases in the UK asylum backlog. It’s barely a drop in the ocean. Even if it was legal, Rwanda provides no solution to the Government’s asylum problem.
This whole thing has been a colossal waste of time. And throughout that time, we could have put the time and money into simply processing asylum claims in the UK and reducing the backlog.
It’s been a bitter, shameful story. But for all that, there is at least this one moment of hope. The courts will uphold the rule of law, even if the Government will not. Britain’s constitutional arrangements work to defend human rights, even when secretaries of state try to undermine them. There are still things to be proud of in this country. There are still things to believe in. And this morning provided a demonstration of them.
