15 November 2023

Could Court defeat spark a year of political theatre to keep Rwanda scheme alive?


The Supreme Court finding the government’s policy unlawful means that there is little chance of Britain deporting any asylum seekers to Rwanda before the General Election. Given the government’s prospects of re-election look slim, and Labour opposes the scheme, Lord Reed may have sounded the death knell for the Rwanda scheme as he read out today’s unanimous judgement.

Government ministers are not ready to admit that yet. Plans are already emerging about how the Rwanda plan might go ahead – a new deal or treaty with Rwanda – as much to express the government’s determination to press ahead as to fix the flaws in the asylum system.

It could even be that the pre-election politics of losing this case seem easier than winning it. Had the court found for the government, its argument that the Rwanda plan could stop the boats would have been put to the test next summer, ahead of an Autumn election. It was always an unlikely premise that sending a couple of hundred people to Rwanda – less than 1% of those who crossed the Channel this year – would transform the crossings.

But this court defeat means that will remain untested this year, so the government can stick to its argument that the Rwanda plan would solve the issue. Rishi Sunak’s election pitch may be that voters should re-elect his party so they can persevere with what needs to happen in Britain and Rwanda to put a legal plan into place.

Yet there are also practical consequences of this defeat, not just for the government but for those waiting to hear what happens to their claims for asylum. The government passed an Illegal Migration Act last summer proposing new legal duties on the Home Secretary to remove all asylum seekers who arrive without permission, and to permanently bar them from the UK asylum system.

It did not bring those legal duties into force, awaiting this Supreme Court verdict on Rwanda. Now that the government has lost the case, it is very difficult to see how the government could trigger those legal duties – when it has no realistic means to fulfil them in at least 95% of cases.

The view inside the Home Office is that there is now no realistic alternative but to quietly admit most of those who crossed the Channel into the UK asylum system after all. That would enable those with a valid asylum claim to rebuild their lives in Britain, while exploring viable options for returns for those whose claims fail.

That recognition of reality would be a big political U-turn. The Prime Minister made a keynote speech on 7th March promising that nobody who arrived after that date would be allowed to stay – indeed, suggesting the government could routinely remove people within 28 days. The government has already moved the goalposts once on that – amending its Illegal Migration Bill at the last minute to remove March 7th and substitute it with the date of Royal Assent, which was 20th July.

The right of the Conservative Party will now focus on calls for the UK to leave the European Convention on Human Rights. Yet the case against the ECHR is largely a red herring – despite its high profile in the political and media debate. After all, the court verdicts have found no barrier in principle to this kind of asylum deal, as long as the ’third country’ does have a functioning asylum system capable of complying with international law. The problem was that Rwanda’s asylum system was so dysfunctional – with its asylum decision-makers lacking basic knowledge and training – that it could not be deemed safe.

The reshuffled government has a new team to pick up the pieces of this defeat.

Home Secretary James Cleverly and new Foreign Secretary David Cameron have been sceptical of the idea of leaving the ECHR so will now seek potential reforms within it.  Cameron has plenty of experience of renegotiations for Britain in Europe – with mixed results – but will know that only incremental progress is likely to be achievable in the next year.

One irony of this Supreme Court defeat is that Rishi Sunak was an early sceptic about the Rwanda scheme before it was announced.  As Chancellor, he had to find the money for the expensive scheme – but challenged whether it would be lawful or an effective deterrent too.

Yet Sunak changed his mind, probably for political reasons once he was running for the party leadership. Whatever the flaws in the scheme, he said, he would commit to finding a way to fix them. ‘Crucially, we cannot waste large amounts of money on the Rwanda policy only to fall at the first legal hurdle,’ he wrote for the Sunday Telegraph. Yet that is precisely where his government has now ended up.

Sunak’s plans ranged from the entirely unworkable – proposing that the deterrent effect might work if every single person crossing the Channel went to Rwanda – to more practical ideas to invest in clearing the asylum backlog. While those proposals are already producing some results, with the backlog starting to come down, the headline-grabbing proposals succeeded principally in generating headlines (and legal bills).

The response from the new Home Secretary to today’s judgement was pragmatic, arguing that Rwanda was just one of a series of measures the government is pursuing to reduce small boat arrivals. But as we enter an election year it seems unlikely that the government will admit defeat on its flagship policy, having raised the salience of asylum as an issue. Instead we should expect a year of political theatre and attempts to keep the Rwanda scheme alive through treaties or new deals. These will surely run out of road before the general election. Meanwhile the government will be forced to quietly start processing people’s asylum claims here. But we will have wasted yet another year when the government could have been making real progress on reforming and rebuilding a more effective, fair and humane asylum system.

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Sunder Katwala is the Director of British Future

Columns are the author's own opinion and do not necessarily reflect the views of CapX.