There is a myth among constitutional lawyers that Margaret Thatcher inadvertently popularised judicial review. The story goes that back in the 1980s, when the government was all powerful and the hapless Michael Foot was incapable of mounting effective challenges in the Commons, the courts became the only means with which decisions by public bodies could be overturned.
Rishi Sunak does not currently find himself in as dominant a position as the Iron Lady. Faced with economic strife and possible annihilation at the next election, this government takes a battering every day in Parliament from opposition parties and even its own backbenches.
One policy that is particularly unpopular with opposition MPs is deporting asylum seekers to Rwanda. Nonetheless, they have been unable, by political means, to get the Tories to resile from their position. So, opponents of the plans were pinning their hopes on the High Court to rule that the policy was unlawful.
The applicants for the judicial review were mostly those asylum seekers given a one-way ticket to Kigali by the Home Secretary, as well as a union and a couple of pressure groups for good measure. The court decided to deal with the review in two parts: firstly, to address the overarching arguments each of the applicants made about the legality of the Home Secretary’s decision to send them to Rwanda; and, secondly, to address the individual cases of each applicant.
On this first part, there were no fewer than 12 arguments put forward for why the Home Secretary had acted unlawfully in her Rwanda policy. These range from the policy being inconsistent with the Refugee Convention, human rights, EU law, GDPR, the public sector equality duty and so on. However, the main two arguments were that the Home Secretary was wrong to conclude that Rwanda was a safe country to send asylum seekers to, and that the Home Secretary was wrong to have confidence that the Rwandan government will honour its agreement to abide by the agreement the UK struck with it on treating asylum seekers appropriately.
It is worth making clear that the parties did not dispute that the Home Secretary has the legal power to remove an asylum seeker to a safe country where the asylum seeker could have availed himself of protection prior to entry to the UK. That is clearly written out in the law approved by Parliament, and was not challenged before the court. The question of law and fact for the judges to decide was whether Rwanda was indeed a safe country, and therefore whether the Home Secretary could use those powers.
In making their two key arguments, the applicants relied on evidence provided by the UN High Commissioner for Refugees criticising the Rwandan asylum process. In defence, the Home Secretary noted that in 2020, the High Commissioner described the Rwandan system as ‘fully compliant with international standards’ and that in any event, the UK government had agreed with the Rwanda Government an Memorandum of Understanding [MOU] to ensure that refugees were treated appropriately, which involved many visits to Rwanda and many discussions with their Rwandan counterparts. This boils down to the applicants pointing out the various failings in Rwanda over the years, and the Home Secretary arguing that the MOU will ensure these problems don’t arise again in future.
The courts traditionally give the government particular leeway on foreign affairs, as that is properly the domain of the executive, and not in the competence of the judiciary. While that tradition has been fraying somewhat in recent years, in this instance the court did find that the Home Secretary had not acted unlawfully in concluding that Rwanda was a safe country. That she had the legal power to remove asylum seekers to a safe third country was not in dispute, and as she had properly concluded that Rwanda was safe, she was acting within her powers to send the applicants there.
The myriad other generic issues on human rights, data protection and so on were also decided in the Home Office’s favour. The court did find that the decision-making for some of the individual applicants was flawed, and so rescinded those applicants’ removal orders. It is up to the Home Secretary to decide whether or not to reconsider sending them to Rwanda.
It seems likely that this decision will be appealed to a higher court and, given the public interest, may very well find its way to the Supreme Court. Campaigners are understandably upset that they lost their legal challenge and will no doubt continue to bring actions to question the legality of the Rwanda policy.
However, the court itself stated early in its judgment that it cannot make political, social or economic choices – those were up to Parliament and, where Parliament empowers them to do so, ministers. Further battles in court, fees for lawyers and distress for the applicants who are in an unenviable legal limbo are all an unfortunate consequence of a political failing. But this failing is not the Home Secretary’s – it’s of a system that enables campaigners to resort to the courts when governments make decisions they don’t like.
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