There is no point in critics of our activist judiciary kicking off about today’s Supreme Court’s decision that the government’s Rwanda policy is unlawful.
This isn’t a case of ‘lefty lawyers’ thwarting honest politicians, but of incompetent politicians seeking to wish away the United Kingdom’s international treaty obligations without having the bottle to withdraw from them.
This PM promised to do ‘whatever it takes’ to stop the boats and yet has failed to do so
More precisely, it wholly vindicates Suella Braverman’s accusation of Rishi Sunak engaging in ‘magical thinking’ when rejecting her advice to push through more radical legal changes.
The judgment, read aloud by Supreme Court President Lord Reed this morning, was devastating and clearly based on a learned reading of international law as it stands – rather than on contrivances born out of liberal political biases. As someone often up for a bit of liberal judge-bashing, it grieves me to say this. But having listened to the judgment it is the inescapable truth.
All five justices making the decision agreed with the Court of Appeal verdict that the policy fell down on the risk of ‘refoulement’, that is of asylum seekers ending up back in countries of origin where they could be persecuted or worse.
The key evidence of this was provided by the United Nations Office of the High Commissioner for Refugees which was entitled to hold the UK to various treaties it has signed and never resiled from, most notably the 1951 convention on the status of refugees. The European Convention on Human Rights and the UK’s own Human Rights Act were also cited, along with other legislation, as imposing legal constraints.
To cut a long story short, no objective assessment could conclude that the government of Rwanda can be trusted to uphold the principle of non-refoulement and this is based on some of its specific actions in relation to asylum processing as well as wider misdeeds.
And though Lord Reed offered a theoretical chink of hope to supporters of the Rwanda scheme that in principle ‘changes may be delivered in the future’ that would render the policy lawful, only an idiot would now be placing much hope in that.
So making a central African republic responsible for implementing a UK deterrent against illegal immigration turns out to have been a hopeless idea. Without the ‘notwithstanding’ clauses that Mrs Braverman argued needed to be inserted into the Illegal Migration Act to set aside international obligations, the scheme was stillborn.
Those of us who have argued that the UK needed to take responsibility itself for creating a solid deterrent against illegal migrants abusing the asylum system, for example by building its own reception centre on its overseas territory of Ascension Island, can also feel vindicated.
A four-year game of political pass-the-parcel about ‘stopping the boats’ – involving several Tory Home Secretaries and Prime Ministers – has ended with Rishi Sunak finding that the box is on his lap as the final sheet of wrapping paper is removed. And it contains a grenade that has just exploded.
This PM promised to do ‘whatever it takes’ to stop the boats and yet has failed to do so. He can waffle on about taking time to look at the judgment with a view to making further tweaks to the Rwanda policy, or about a ‘30 per cent reduction’ in the boats (mainly down to bad weather and a deal with Albania in respect of its nationals alone) but the bottom line is that he has failed.
On the number one priority of 2019 Tory voters he barely has a fig-leaf with which to cover his modesty. All those who predicted that not a single asylum-seeker would be flown from the UK to Rwanda when Boris Johnson and Priti Patel launched the scheme 18 months ago have been proven correct.
Will Sunak now respond by withdrawing the UK from the European Convention and the UN refugee treaty? Not a chance. There are far too many ‘liberal’ Tories sitting in the Commons – and indeed in his Cabinet – for him to win a vote on that, even had he not unveiled himself as being one of their number via his ludicrous reshuffle.
On illegal immigration as much as legal immigration, this is a regime that speaks with a forked tongue: rhetorically tough but with no appetite for implementing the legal changes required to bring numbers down. Only the very most compliant section of Tory support in the country will be prepared to tolerate this.
Listen to James Heale, Katy Balls and Kate Andrews discuss the Supreme Court verdict on Coffee House Shots below.
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