WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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‘Rwanda is a country we should be receiving asylum seekers from, not deporting them to’  

‘Rwanda is a country we should be receiving asylum seekers from, not deporting them to’  

One of the maxims of Peep Show, the Succession writer Jesse Armstrong’s first critical success, is that ‘you can’t trust people’.  Explaining this rationale, Super Hans (played by Matt King) tells Jeremy (Robert Webb) that ‘people like Coldplay and voted for the Nazis’.  Perhaps a special adviser should have shown Priti Patel, then Home Secretary, this clip before the Home Office went ahead with its Rwanda policy in 2020.  Much of the policy’s justification rested on the fact that the Rwandan government had committed to upholding the relocated asylum seekers’ rights, and the Home Office trusted them. The question before the Court of Appeal was whether the Home Office was right to do so. 

As a majority of justices on the court found this week, the only reasonable answer is ‘no’.  The absurdity of the policy is made clear in the opening paragraphs of the judgment delivered by the Master of the Rolls, Sir Geoffrey Vos.   Several summarise the arguments put forward by the appellants challenging the High Court’s decision to uphold the policy’s legality.  These range from the fact that Rwanda reneged on a similar agreement with Israel only a few years ago, to the fact that Rwanda doesn’t have an independent judiciary and is a de facto dictatorship, to the fact that it has a history of persecuting minority groups and a  ‘misunderstanding’ of refoulement (the international law principle that asylum seekers cannot be forcibly returned to their home country) .  

The single paragraph summarising the defence of the policy stands in stark contrast.  Even though it was delivered by two of the English Bar’s greatest minds, James Eadie KC and Lord Pannick KC who are more often found pitted against each other, the defence amounted to little more than ‘Rwanda promised, and we believed them’.  Anyone with even the barest knowledge of Paul Kagame, Rwanda’s president-cum-dictator should have known that his government’s promises should not be trusted.  Among the litany of sins levied at his government are accusations of executing political opponents and stifling dissidents; of muzzling Rwandans’ freedom of speech; and of depriving them of other fundamental liberties.  There is no reason, as the Court of Appeal found, to think that asylum seekers detained there would be treated any more humanely.  Rwanda is a country the UK should be receiving asylum seekers from, not deporting them to.  

Given this, it is hardly surprising that the Court of Appeal found that the deportation policy was unlawful.  What is more surprising was that the Court was not unanimous, with the Lord Chief Justice, Lord Burnett, dissenting and siding with the High Court.  When the High Court handed down its judgment at Christmas last year, the two judges concluded that Patel acted within her discretion when choosing to rely on the assurances of the Rwandan government.  Rwanda had told her the relocated refugees would be treated decently, and that was enough.  Perhaps wary of the consequences of criticising the Home Secretary, the Master of the Rolls was careful not to twist the knife as he eviscerated this argument.  Insisting that the Home Secretary and the Rwandan government had acted in ‘good faith’ throughout, Lord Vos nonetheless concluded that relying on the assurances alone was inadequate.  Instead – and this is the question that the High Court should have also asked – the question had to be that regardless of the assurances made, ‘were [there] substantial grounds for thinking that asylum seekers sent to Rwanda…[face] a real risk of article 3 mistreatment’. 

This does not mean that the Home Secretary should have dismissed the Rwanda government’s assurances as vacuous, or that the Court of Appeal should entirely disregard them.  As Lord Bingham, former senior law lord, said neither should ‘readily infer that a friendly sovereign state… will not perform the obligations it has solemnly undertaken.  At the same time, this does not mean the government or courts can be naive.  What they must ask themselves, according to the Master of the Rolls, is whether ‘in light of the events on the ground…the assurances would be complied with?’ No matter how detailed the guarantees offered up, or how ‘longstanding’ the government’s relationship was with Rwanda, or even the ‘financial incentives to perform on its obligations’, the government still had to look to past practice.

Casting around for evidence to substantiate the government’s policy, Lord Vos was left with a dismal catch.  Instead of evidence supporting the policy, every substantiated piece of evidence revealed it to be absurd and cruel. The UN Refugee Agency (UNHCR) attested to the asylum process being ‘marked by acute arbitrariness and unfairness’, with ‘serious deficiencies’ in the right of asylum seekers to have their cases heard; while Lord Vos noted that an earlier decision of the UK High Court found that Rwandan ‘judges might yield to pressure from Rwandan authorities’.  More damningly, many of these breaches occurred while there was an agreement in place between Rwanda and Israel, where Rwanda had given an ‘explicit undertaking’ that the ‘deportees will enjoy human rights and freedoms’.  

With all this in mind, the Court of Appeal was far too generous to the Home Secretary.  Priti Patel, and her even more belligerent successor, Suella Braverman, were and are not concerned about the refugees’ rights in Rwanda.  The entire point of the Rwanda project was to be a deterrent. Braverman may have taken a trip to Kigali, with the Home Office releasing photographs of her laughing uproariously at the sight of the refugee housing, and spoken about the promise of the scheme, but this, much like the government’s claims to be concerned with refugee rights, was just a mirage.  A deterrent only works if it is perceived as probable and harmful.  Claims about the importance of human rights and the quality of life in Rwanda are a smoke-screen, with the government wanting would be asylum-seekers to see through it to reality –  life in Rwanda would be nasty, brutish, and possibly short. 

The Court was right to be careful in its language though.  Despite the ameliorative tone, conservative pundits have crawled out of the woodwork to decry the judgment and to explain why we should be persecuting refugees. Tim Shipman has come up with the generic hot-take that ‘judges are running the country’, while Andrew Tettenborn wrote in the Spectator that questions of social policy must be under the near-total control of ‘elected representatives’. But neither were able to use either of the judge’s words against them, reduced to the same autocue they use whenever the courts hand down a decision they disapprove of.   By the logic of the policy’s defenders, it doesn’t matter if it is ineffective, expensive, or unlawful.  Or even if it is all three, as the Rwanda policy has been proven to be.  Since it has been in place, there has been no reduction in the number of Channel crossings, the Home Office’s own analysis has shown it to cost more than it will save, and now the Court of Appeal has found that it exposes the risk of asylum seekers to inhuman or degrading treatment to boot.  What does matter is that it might win the Conservatives some votes.   

Speaking about the Court of Appeal judgment earlier this afternoon, the prime minister has already said (as if it needed saying) that the government will appeal the decision to the Supreme Court.  Here, he has a legitimate expectation of this being upheld.  Recent judgments from the highest court have tended to elevate the decisions of ministers, placing them on a pedestal beyond the reach of unelected judges.  In its judgment the Court of Appeal has shown the Supreme Court how to bring the government back to earth. The justices sitting opposite the Palace of Westminster should follow their example, reminding ministers they are not idols, but very inadequate decision-makers.