12 December 2023

Who’s right about Rwanda?


Anyone who remembers Laurel and Hardy will be tempted to refer to the shenanigans over the emergency Rwanda legislation, the Safety of Rwanda (Asylum and Immigration) Bill as ‘another fine mess’. There certainly isn’t agreement among the Tories on it. Rishi thinks the Bill will do. Some wet One Nation Tory MPs such as Matt Warman, Bob Neill and reputedly Victoria Prentis, the Attorney-General, say that in ousting any challenge to the safety of Rwanda under the Human Rights Act it goes too far. (They suggested last night, however, that they would not vote against it.) Others, the so-called ‘star chamber’ consisting largely of members of the ERG, the Common Sense Group and others, of which the most prominent is Mark Francois, say that it does not go far enough. In turn, a group of senior Tory silks, including ex-Attorney Geoffrey Cox, have riposted that the Bill cannot be tightened further without putting this country in so plain a breach of its international commitments as to make its passage even more difficult.

What is going on? At the risk of drowning readers in legalese, the position is roughly as follows. The Supreme Court last month prevented the deportations to Rwanda on the basis that Rwanda cannot overall be regarded as a ‘safe country’ which will not mistreat asylum seekers or send them to other countries that might do so. Essentially, what the Bill does is to reverse this decision. Rwanda is, it says, conclusively to be seen as a safe country. In addition, the courts are limited in their powers to issue interim injunctions, and prevented from taking any account of emergency orders from the European Court of Human Rights in Strasbourg like the one that stopped a deportation flight in its tracks (almost literally) last year.

All is well, then? Not quite. The devil, as ever, is in the detail. Three things in particular worry the critics who say the Bill does not do enough. First, the courts are still to be allowed to issue interim injunctions if a deportee would suffer immediate ‘serious and irreversible’ harm if removed: with some reason, the ‘star chamber’ suggest that this may be easier to show than the government thinks, and will provide a useful delaying tactic. In addition, the Bill preserves courts’ rights to prevent removal on the grounds of personal circumstances that do not relate to the safety of Rwanda as such (for example, a deportee’s specific politics, or religion, or extreme illness). This could provide yet more grounds for delay. Thirdly, the courts would retain the power to declare the Bill, were it to be passed, to be incompatible with the European Convention Human Rights. Since amendments at Second Reading are difficult, the critics are calling for a new Bill to replace the current one.

The critics from the right have a point. It would perhaps have been better had the Bill included provisions, say, preventing courts issuing interim injunctions unless satisfied that it was overwhelmingly likely that an applicant would ultimately succeed in a claim to prevent his being sent to Rwanda, and possibly limiting rights of appeal from a refusal to grant an injunction. A special, swift-acting tribunal to give a final, unappealable decision on whether a deportee’s personal circumstances rendered his removal to Rwanda unsafe might also have helped, as would complete exclusion of the courts’ powers to declare the Bill incompatible with human rights norms.

But it is perhaps best for the government at this stage to soldier on with the legislation as it is, for a number of reasons.

First, domestic politics. Rishi, facing an election next year, cannot afford to look weak. A climbdown, even for the sake of suppressing the Bill and replacing it with a stronger one, would have just that effect. He will also be uncomfortably aware that as it is, the Bill faces a rough ride in the Lords: any changes would make it yet rougher.

Secondly, there is a respectable view, expressed by the four senior conservative lawyers mentioned above, that at least in the absence of deliberately obstructive courts the Bill will not in fact give rise to too many opportunities for obstructive lawyering.

Thirdly we have to remember that Rwanda – which has skin in this game as it is hoping for similar business from other beleaguered European refugee destinations – may take fright at any further measures on the basis of the Refugee Convention 1951. True, this is increasingly seen as an obstruction to proper border control and there is a case for denouncing it. But for the present both the UK and Rwanda are party to it, and Rwanda will not wish to be seen internationally as complicit in breaches of it.

All in all, the present Bill will probably go forward. This morning Rishi had a power breakfast with his rightist critics. The betting must be that he has agreed to their proposing a few amendments at committee or report stage in exchange for a promise not to upset the apple-cart this week, and that they will reluctantly go along. As to what happens to the Bill in future, however, faced as it is with unified opposition from an emboldened progressive establishment, it would be unwise to make predictions.

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Andrew Tettenborn is a professor of law at Swansea Law School

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