Rwanda deportation policy would still be unlawful even if UK left ECHR, says supreme court – UK politics live

Sir Jacob Rees-Mogg, the former business secretary and a leading Brexiter, says the government should now legislate to allow the UK to deport people to Rwanda regardless of what the European convention on human rights says. He told GB News.

Unless we deal with the application of European human rights in the UK, we will not get flights to Rwanda. If we don’t get flights to Rwanda, we will not deal with the small boats problem.

This is a real test for His Majesty’s government and what they need to do, what’s in its power to do, is to introduce primary legislation that will override all these obstacles.

That’s the basic constitutional principle of our country, that parliamentary sovereignty means that the highest court in the land is not the supreme court, it’s the high court of parliament …

The key here is that parliament can legislate to say anything. It can legislate to amend the Human Rights Act, it can legislate to override the European convention on human rights.

Essentially, this judgment boils down to who do you trust to decide whether Rwanda is safe? Do you trust the judgment of the home secretary, or do you trust the judgment of a United Nations agency which has had all sorts of problems?

Simon Clarke, the former levelling up secretary, has also called for emergency legislation. In an inteview with Sky News, he said the government should either pass notwithstanding legislation – a law allowing the UK to ignore the European convention on human rights – or, if notwithstanding legislation is not legally viable, just withdraw from the convention altogether.

As the day goes on, we are likely to hear a lot more comments along these lines from Tory rightwingers.

But Rees-Mogg and Clarke have not addressed the supreme court’s point about non-refoulement being embedded not just in the convention, but in a lot of other international law too. The court even said that non-refoulement could be seen as “a principle of customary international law” which would mean “it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect”. (See 10.48am.)

Amnesty International UK says the government should now abandon the Rwanda policy, and repeal the Illegal Migration Act, in the light of the supreme court judgment. Its chief executive, Sacha Deshmukh, said:

This judgment is vital to protect people seeking asylum in this country, but the government must now draw a line under a disgraceful chapter in the UK’s political history.

The deal with Rwanda – a country with a track record of serious human rights violations, including arbitrary detention, torture and the repression of free speech – was massively ill-conceived and cruel.

It’s now time for the government and the new home secretary to not only abandon the idea of doing a deal with Rwanda, but to scrap the underlying policy of refusing to process people’s asylum claims and the Illegal Migration Act that has entrenched that dismal policy.

This policy has made complete chaos of the UK’s asylum system and this shameful deal has simply exacerbated the mess.

The only responsible, effective and decent response to this judgement should be to get down to the serious task of fairly and efficiently determining people’s claims.

The idea that the UK should withdraw from the European convention to pursue this failed policy is nonsensical and should be immediately binned. The government should make policies which fit with the law, not fit the law around their policies.

No 10 has also announced that Rishi Sunak will hold a press conference at 4.45pm.

Before that, James Cleverly, the home secretary, will give a statement to MPs after 12.30pm.

No 10 has released a response to the supreme court judgment from Rishi Sunak. In his statement the PM says:

We have seen today’s judgment and will now consider next steps.

This was not the outcome we wanted, but we have spent the last few months planning for all eventualities and we remain completely committed to stopping the boats.

Crucially, the supreme court – like the court of appeal and the high court before it – has confirmed that the principle of sending illegal migrants to a safe third country for processing is lawful. This confirms the government’s clear view from the outset.

Illegal migration destroys lives and costs British taxpayers millions of pounds a year. We need to end it and we will do whatever it takes to do so.

Because when people know that if they come here illegally, they won’t get to stay then they will stop coming altogether, and we will stop the boats.

The supreme court judgment will reignite the debate in the Conservative party about whether or not the UK should leave the European convention on human rights.

But one of the interesting features of the judgment, referenced by Lord Reed in his speech (see 10.06am), is that it says that it is not just the ECHR that obliges the UK to respect the principle of non-refoulement for refugees. It says:

It may be that the principle of non-refoulement also forms part of customary international law. The United Kingdom has subscribed to this view, along with the other states parties to the refugee convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees. The fourth recital to the preamble to the declaration acknowledged the continuing relevance and resilience of the international regime of rights and principles established for the protection of refugees, “including at its core the principle of non-refoulement, whose applicability is embedded in customary international law”. The significance of non-refoulement being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect. However, as we have not been addressed on this matter, we do not rely on it in our reasoning.

The principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law.

The judgment also says the UK government would still have to respect the non-refoulement principle even if it repealed the Human Rights Act (another target of Tory rightwingers). It says:

Asylum seekers are thus protected against refoulement not only by the Human Rights Act but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which parliament has given effect to the refugee convention as well as the ECHR.

Here is the text of the supreme court’s judgment in the Rwanda case.

And here is a key extract.

The secretary of state’s submission, in effect, is that the evidence of current inadequacies in Rwanda’s asylum system, and of its past history of refoulement and of failing to comply with assurances given to the government of another country, is not a reliable guide to how asylum seekers removed to Rwanda under the MEDP [migration and economic development partnership – the UK’s deal with Rwanda] will be treated. A predictive evaluation is required, and the MEDP provides assurances that the necessary improvements to the system will be implemented. No one has questioned the good faith of the Rwandan government in giving those assurances, and it has financial and reputational incentives to honour them. The monitoring arrangements under the MEDP will deter non-compliance and ensure that any failures come to light.

There is no dispute that the government of Rwanda entered into the MEDP in good faith. We accept that Rwanda has a strong reputational incentive to ensure that the MEDP is adhered to. The financial arrangement may provide a further incentive. In addition, the monitoring arrangements, and the degree of attention which would be likely to be paid to the operation of the MEDP by organisations such as UNHCR, provide further incentives and safeguards. Nevertheless, intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice. That is illustrated by the history of Rwanda’s agreement with Israel: we have no reason to doubt that Rwanda gave its undertakings to Israel in good faith, and that the government of Israel believed that they would be fulfilled. The central issue in the present case is therefore 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.

In agreement with the court of appeal, we consider that the past and the present cannot be effectively ignored or sidelined as the secretary of state suggests. Of course, since the application of the Soering test requires a consideration of risk, it therefore involves prediction. But risk is judged in the light of what has happened in the past, and in the light of the situation as it currently exists, as well as in the light of what may be promised for the future.

The matters which we have discussed are evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the refugee convention. The evidence also goes some way to support the suggestion of a dismissive attitude towards asylum seekers from the Middle East and Afghanistan. It is also apparent from the evidence that significant changes need to be made to Rwanda’s asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement. The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring.

As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal 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. We accept the secretary of state’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.

Campaigners who work with refugees have welcomed the supreme court’s ruling. Steve Smith, CEO of refugee charity Care4Calais, said:

The supreme court’s judgment is a victory for humanity. This grubby, cash-for-people deal was always cruel and immoral, but, most importantly, it is unlawful.

Today’s judgment should bring this shameful mark on the UK’s history to a close.

Never again should our government seek to shirk our country’s responsibility to offer sanctuary to those caught up in horrors around the world.

All the architects of the Rwanda plan may be gone but unless the government changes course and introduces a policy of safe passage, then the rest should follow them out the door. There can be no more time wasted attacking the vulnerable when all they seek is our help.

And Sonya Sceats, the chief executive at the charity Freedom from Torture, said:

This is a victory for reason and compassion.

We are delighted that the supreme court has affirmed what caring people already knew: the UK government’s ‘cash for humans’ deal with Rwanda is not only deeply immoral, but it also flies in the face of the laws of this country.

Reed says, given this evidence, the court of appeal concluded that there were good grounds for thinking asylum seekers going to Rwanda were at risk.

He says the supreme court is unanimously of the view that the court of appeal was right.

UPDATE: PA Media says:

Lord Reed said the “legal test” in the case was whether there were “substantial grounds” for believing that asylum seekers sent to Rwanda would be at “real risk” of being sent back to the countries they came from where they could face “ill treatment”. He said:

In the light of the evidence which I have summarised, the court of appeal concluded that there were such grounds.

We are unanimously of the view that they were entitled to reach that conclusion. Indeed, having been taken through the evidence ourselves, we agree with their conclusion.