Top U.K. Court to Rule on Deporting Asylum Seekers to Rwanda

Britain’s Supreme Court will rule on Wednesday whether the government’s contentious policy to deport asylum seekers to Rwanda is lawful, in a pivotal moment for the ruling Conservative Party during an already turbulent week.

The Rwanda policy was first announced in April 2022 by Prime Minister Boris Johnson, as he attempted to make good on a Brexit campaign promise to “take back control” of the country’s borders.

The hard-line policy has since been pursued by Mr. Johnson’s successors, Liz Truss and Rishi Sunak, with each repeating his original untested argument that the threat of being deported to Rwanda would deter the tens of thousands of people who try to cross the English Channel in small boats each year.

But it has been widely criticized by rights groups and opposition politicians from the start, with many pointing to Rwanda’s troubled record on human rights. And to date no one has been sent to the small East African nation, because of a series of legal challenges.

The first flight deporting asylum seekers to Rwanda was scheduled for June 14, 2022, but it was grounded because of an interim ruling by the European Court of Human Rights in Strasbourg, which said an Iraqi man should not be deported until his judicial review had been completed in Britain. As a signatory to the European Convention on Human Rights, an international agreement that Britain helped draft after World War II, the country accepts judgments from the Strasbourg court. (Both the court and the Convention are entirely separate from the European Union.)

Last December, Britain’s High Court ruled in favor of the government, determining that the Rwanda plan was lawful in principle and consistent with legal obligations, including those imposed by Parliament with the 1998 Human Rights Act.

But in June, the Court of Appeal ruled that Rwanda was not, in fact, a safe third country, and that there was a real risk that asylum seekers would be returned to home countries where they faced persecution or other inhumane treatment, even if they had a good claim for asylum. That would represent a breach of the European Convention of Human Rights, the court said.

The case finally came to Britain’s highest court, the Supreme Court, last month, when five judges heard arguments from the government, and from opponents of the plan, over three days.

At that hearing, Raza Husain, a lawyer representing 10 asylum seekers from a number of conflict zones, argued that Rwanda’s asylum system was “woefully deficient and marked by acute unfairness.”

James Eadie, who represented the government, argued that while Rwanda was “less attractive” than Britain, it was “nevertheless safe” for the asylum seekers, pointing to assurances made in the agreement between the two countries.

Angus McCullough, a lawyer for the United Nations refugee agency,told the judges it “maintains its unequivocal warning against the transfer of asylum seekers to Rwanda under the UK-Rwanda arrangement,” according to reporting from The Guardian. He cited evidence that a similar policy pursued by Israel led to the disappearance of some asylum seekers after they arrived in Rwanda.

The expected ruling comes at a time of intense political turmoil in the Conservative Party, which has held power for 13 years and is lagging in the polls.

The home secretary, Suella Braverman,was fired on Monday after igniting a political firestorm over comments that homelessness was a “lifestyle choice.” She also criticized the police over a pro-Palestinian march in London. It will now be up to her successor, James Cleverly, to oversee the response to the Supreme Court decision, just two days after he was appointed.

Ms. Braverman had been an outspoken proponent of the deportation plan, once saying it was her “dream” to see asylum seekers sent to Rwanda. She has also argued that Britain should be prepared to reform or even leave the European Convention on Human Rights. In an excoriating letter to Mr. Sunak on Tuesday, she accused him of betraying a private promise to use legislation to override the convention, the Human Rights Act and other international law that she said “had thus far obstructed progress” on stopping the boats.

“I was clear from day one that if you did not wish to leave the E.C.H.R.,” she wrote, “The way to securely and swiftly deliver our Rwanda partnership would be to block off the E.C.H.R., the H.R.A. and any other obligations which inhibit our ability to remove those with no right to be in the U.K.”

Hours after her firing on Monday, Robert Jenrick, Britain’s immigration minister, seemed to signal that the government would not simply accept a Supreme Court decision to strike down the policy. “We have to ensure the Rwanda policy succeeds before the next general election,” he told The Telegraph. “No ifs, no buts, we will do whatever it takes to ensure that happens.”

Rashmin Sagoo, director of the international law program at Chatham House, a British think tank, said that withdrawing from the European Convention, while still a fringe notion, “will continue to be the ball that gets played,” particularly if the Supreme Court rules against the government.

“From my analysis, it’s a really odd and unconvincing proposition,” she said. “But it’s got really serious implications, which require deep scrutiny.”

Even if the court rules in favor of the government, that won’t mean the authorities can immediately charter a plane to Rwanda, because the asylum seekers who are affected may still be able to take their case to the European Court of Human Rights.

Sunder Katwala, the director of British Future, a think tank focused on attitudes to immigration, said that no matter what the outcome, Mr. Sunak will face an uphill battle to put the policy in place.

He predicted continued loud calls, from Ms. Braverman and her hard-right allies, for Britain to leave the European Convention.

“But this week’s reshuffle sends a strong signal that the prime minister does not agree,” Mr. Katwala said in a statement, suggesting that Mr. Sunak might instead send Mr. Cameron, the newly appointed foreign secretary, “to try to renegotiate the terms of the U.K.’s participation.”

“The bigger challenge would be showing whether the scheme, if lawful, can work,” Mr. Kalwala said. “Rwanda’s asylum system can only take up to 1 percent of those who have come to Britain this year. That is a major practical hurdle, on top of the arguments against the scheme in principle.”