Why the UK Supreme Court ruled against Rishi Sunak’s Rwanda policy

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The UK Supreme Court has ruled that the government’s Rwanda deportation program is unlawful. This is a major blow to Prime Minister Rishi Sunak’s flagship policy aimed at stopping irregular migration across the English Channel.

Five judges ruled unanimously on Wednesday that asylum seekers deported to the East African country actually risk being sent to their home countries without their claims being properly assessed.

What should the judges decide?

Under immigration rules, asylum seekers whose life or freedom is threatened in their country of origin can only be removed from the UK if they are not at risk of being returned to that country, a principle known as “non-refoulement”.

The Rwandan government assured London that it would respect the principle and would be a safe third country to which asylum seekers could be returned. But the UN refugee agency firmly rejected the agreement.

The Supreme Court had to determine whether there were “substantial grounds” to believe that asylum seekers sent to Rwanda were at risk of forcible return to their home country, even if they were at risk of ill-treatment.

On what basis did the judges make their decision?

The court found that a memorandum of understanding between the British and Rwandan governments regarding asylum seekers was not legally binding.

While the UK argued that Kigali could be trusted to comply, citing financial incentives, among other things, the UN refugee agency warned that there were “serious and systematic deficiencies” in Rwanda’s processing of asylum claims.

The Supreme Court said the Supreme Court, which initially heard the case, failed to adequately consider the United Nations’ evidence and that the appeal court was right to overturn its decision.

The Supreme Court cited evidence that Rwanda had failed to comply with its “non-refoulement” obligations in a similar agreement with Israel.

It also pointed to evidence presented by the United Nations that the Rwandan government had 100 percent rejected the applications of asylum seekers from the war-torn countries of Afghanistan, Syria and Yemen.

The Supreme Court said there was “a serious question” about whether the commitments made by Rwanda could be “relied on”.

What options does the UK have to continue its deportation policy?

When it comes to Rwanda, Sunak’s options are limited. However, the court left open the possibility that “the changes necessary to eliminate the risk of refoulement could be implemented in the future.”

But Nick Rollason, head of immigration at Kingsley Napley, said the “overwhelming evidence” before the court was that “Rwanda cannot be trusted to conduct a fair asylum process” for all applicants. The idea that a new deal with the U.K. could address such concerns was “a pipe dream,” he said.

MPs on the right of the Conservative Party have called for the UK to withdraw from the European Court of Human Rights or enact emergency legislation to give the government the power to override international laws on migration issues.

However, new Home Secretary James Cleverly and Foreign Secretary David Cameron are not expected to support such a move.

The United Kingdom has not had any repatriation agreements with countries in the EU since leaving the union. Sunak told Prime Minister’s Questions on Wednesday that he would “conclude” a new deal with Rwanda in light of the ruling and was “ready to review our national legal frameworks if necessary”.

Where is Rishi Sunak’s promise to “stop the boats”?

More than 27,000 people have already crossed the English Channel from France this year, with 615 people making the journey on Sunday alone.

The government had already earmarked 350 people for deportation, but the plan’s main hope was that it would significantly deter people considering travel in the future.

With the Rwanda plan currently failing, it is unclear what will happen to migrants who arrived in small boats and who are barred from applying for asylum under the provisions of the illegal migration law passed in July.

Without a safe third country to send them to, they are likely to remain in limbo in the UK’s migration and detention system.