MIA SWART: Sunak response to Rwanda decision deeply xenophobic

After the British government’s response to last week’s supreme court judgment on immigration it is clear that for Prime Minister Rishi Sunak and his colleagues, deterring “illegal” immigration has become a hill to die on. It is yet another setback to that government’s promise to “stop the boats”. 

Under current UK legislation on asylum claims the home secretary has the power to remove people to “another safe third country”. In December, the high court found that the home secretary had succeeded in determining that Rwanda was such a “safe third country”, and that it was lawful to relocate asylum seekers there while their asylum claims were processed. This decision was appealed to the supreme court.

Pronouncements by the UK government have long indicated that it will not be deterred in its quest to deport asylum seekers. Late last year, the recently sacked home secretary Suella (nicknamed Cruella) Braverman stated that it was her “dream” to have such a Rwanda flight depart before Christmas.

But last week the UK Supreme Court held unanimously that Rwanda removals would be unlawful, since based on the country’s human rights record there was a real risk they could be returned from there to their country of origin. The prohibition on returning refugees is called the principle of nonrefoulement, and is one of the fundamental principles of international law.

In coming to this conclusion, the court relied on evidence presented to it by the UN High Commissioner for Refugees. But even so, the UK government is unlikely to implement the court’s decision. In an extraordinary move, it announced that it will enact emergency legislation to set aside the judgment and declare Rwanda safe.

Such disrespect for the courts has important implications for the rule of law in the UK. No government should be able to legislate away its human rights obligations. Its response to this court ruling is reminiscent of former prime minister David Cameron’s unwillingness to implement a European Court of Human Rights decision to give prisoners the right to vote in the UK.

Commenting on last week’s decision, the Financial Times stated that the supreme court was deft in not basing its decision on the European Convention of Human Rights or the 1998 Human Rights Act, which is in danger of being repealed. Instead, the court relied on broad principles of international law.

The newspaper is right in recognising that not basing the decision on instruments that are currently in jeopardy in the UK could make the judgment harder for anti-Europe hardliners to challenge, but it would be a sad development if UK courts have to resist basing decision on instruments such as the European Convention of Human Rights.

The supreme court judgment again highlights the importance of the UK remaining a member of the European Court of Human Rights. Even if the Human Rights Act is repealed, claimants cannot be prevented from approaching the European Court of Human Rights, although Sunak’s language about “not [allowing] any foreign court, like the European Court of Human Rights, to block these flights” indicates that he would be prepared to defy any ruling by that court too.

The UK supreme court president, justice Robert Reed, is known to be deferential to the UK government on “policy matters”. That the court nevertheless declared the Rwanda policy illegal is but one indication of how deeply antithetical Sunak’s government is to human rights.

In the interest of a fair asylum system the UK government should scrap the Illegal Migration Act, which allows for such deportations. From the start the UK’s plan to send asylum seekers to Rwanda seemed absurd, but the government pursued that policy with the same enthusiasm it is pursuing its “stop the boats” policy.

Both these policies essentially punish refugees for seeking asylum. But because of the time it will take for the UK to legislate on the matter, it seems the planes to Rwanda will not take off soon.

In responding to a previous article I wrote on this topic, a reader commented that Rwanda is a beautiful country and it therefore cannot be considered a punishment to be sent there. That of course misses the point. The “Land of a Thousand Hills” is indeed beautiful — some may even prefer it to the cold, overpopulated UK. But it is clear that a country cannot deport asylum seekers to “unsafe third states” against their will.

As King’s College London international law lecturer Nicola Palmer writes, the Rwanda policy reinforces “an exclusionary and isolationist sense” of what it means to be welcome in the UK. 

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law. She writes in her personal capacity.