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‘Not a Safe Country’: The Court of Appeal’s Decision in the Rwanda Case

With the Government’s flagship policy in legal disarray, will the Conservative leadership finally stand up for the rule of law or continue stoking their culture wars?

Home Secretary Suella Braverman. Photo: Imageplotter/Alamy

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The Court of Appeal has upheld the appeal of a group of asylum seekers who have challenged the government policy of sending asylum seekers to Rwanda to be processed. It is a decision that will resonate like a bass drum in the theatre of British politics. 

In summary, 10 asylum seekers who arrived on UK shores from Syria, Iraq, Iran, Vietnam, Sudan and Albania on small boats, having crossed the English Channel, have been vindicated by a highly experienced Court of Appeal. 

The Government’s announced policy was to then send these people immediately to a third country, namely Rwanda and argued that Rwanda was a ‘safe country’ and as such there was no breach of Article 3 of the European Convention on Human Rights – which protects our right not to be subjected to inhuman or degrading treatment. 

The Government’s ambition, as set out so floridly by the Home Secretary, Suella Braverman, was that planeloads of asylum seekers would leave the UK every day to be dealt with in Rwanda. 

The Court of Appeal ruled that Rwanda was not a safe country and that because of the deficiencies in its asylum process, there was no guarantee that asylum seekers would be dealt with fairly and humanely and that there was a real prospect that they would be returned to the country of origin and subjected to inhumane treatment or worse – which would be a clear breach of our duty under Article 3 of the ECHR.

Most of the evidence that was considered by the court had been compiled and presented by the United Nations High Commission for Refugees. This organisation can hardly be described as being invested in the machinations of the British political system and gave expert evidence that the Rwandan Government, despite its assertions to the contrary, may not be able to cope with an influx of refugees and that its record on human rights is flawed. 

By declaring that the Government policy was unlawful – the Court has made a clear declaration that the articles of the European Convention on Human Rights, which we signed up to and enshrined into UK law are still sacrosanct and cannot be ignored by any government regardless of its political leaning. 

Further, they have declared that as far as they are concerned, we as a country maintain our duty to ensure that we deal with people arriving on our shores seeking asylum with dignity and humanity – and that it is right that we do not send them to third countries where the same levels of care cannot be guaranteed. 

So where does this leave a government that has made dealing with ‘small boats’ one of its flagship policies? 

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In terms of the legal process, the Government could appeal the decision to the Supreme Court, though, they may be advised that the Court of Appeal’s decision is so emphatic that any further appeal may prove futile. 

Alternatively, suppose the Government genuinely and earnestly believed that refugees should be dealt with away from the UK. In that case, it might be tempted to take steps to address the concerns of the Court by working with governments, such as the Rwandan government, to help them improve their asylum systems and their record on human rights; after all, these foreign governments have declared an interest in what could be a lucrative business ‘importing’ asylum seekers from European or ‘Western’ Countries – as such this decision and the role of the UNHCR in it, will resonate amongst the policymakers of potential ‘third countries’. 

Similarly, a government that was genuinely concerned about the dangers of people trafficking or the influx of asylum seekers into the UK might be inclined to consider improving its procedures by improving the channels by which refugees can apply for asylum and the speed by which the applications are processed. 

However, it appears that rather than be considered carefully by our Government, this significant decision of the Court of Appeal will now be subsumed into the ongoing psychodrama that is the Conservative Party and the increasing trend towards turning issues such as this into an excuse to criticise those who oppose the populist right as ‘woke’ ‘liberal’ and ‘elitist’.  

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Rather than celebrate the fact that the Court of Appeal has upheld the principle of the separation of powers and demonstrated, again, that the Government cannot act unlawfully – those on the right of the Conservative Party will use the Court’s ruling to bolster their claims that the UK should withdraw from the European Convention on Human Rights and that the judiciary should be reformed by introducing a more political system of appointment, similar to that of the USA where the presidential power to appoint Justices to the Supreme Court along political lines has had a massive impact upon the political and legal discourse and the direction of social and public policy as well as law. 

The Tory right supported by the right-wing press will make their incendiary assertions that the Court of Appeal is part of an ‘elitist enemy of ordinary people’.  They do this at their peril. 

After the disasters of Brexit and Partygate and the chaotic shambles of the Johnson and Truss administrations, surely sensible politicians would seek to applaud the importance of the Court of Appeal and the separation of powers between the executive and the judiciary rather than undermine it. 

Surely, now, with the continued stream of stories about unlawful and improper behaviour from our nation’s politicians that is decimating public trust in the whole system, serious politicians, would embrace the fact that we do have a system of law and justice in our country that makes balanced evidence-based decisions rather than simply immersing itself in the short-term, knee-jerk, populism that dominates much of public and political life.

Unfortunately, I fear that the next stage of this debate will centre around our continued adherence to the European Convention on Human Rights, rather than the fact that, once again, our Government have attempted to put into place unlawful public policy.  

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