The government’s loss in its Rwanda appeal spells trouble for Rishi Sunak. But liberals are delighted: ‘Massive result,’ said the barrister Adam Wagner after the Court of Appeal ruled that would-be asylum seekers cannot be sent to the African country while their claims are processed. Sunak plans to seek permission to appeal to the Supreme Court – but his pledge to ‘stop the boats’ looks to be in trouble. Or is it?
There is more to today’s decision than meets the eye. The victory hardly resounding. Of the five grounds of appeal, ranging from super-technical ones like retained EU law and data protection issues to more general issues of conditions in Rwanda, only one was successful – and only by a majority of two to one (the Lord Chief Justice dissenting).
This concerned the safety and desirability of Rwanda as a destination for asylum seekers. The decision was that, in the view of the court, there were good reasons to think that the Rwandan asylum system and judiciary left a good deal to be desired, and that there were reasons to be concerned that some refugees might be subjected to inhuman treatment, or sent on to other countries (in legal jargon, ‘refouled’) to other countries where this might happen.
Who out of judges and politicians ought to have the final say?
Fair enough, you might say. If you believe in humanitarianism and the rule of law, surely you should welcome this intervention to stop the scheme.
Actually, however, the matter is much more nuanced. The relevant legislation refers not simply to whether a given country is safe, but to whether the Home Secretary determines that it is. Not surprisingly, the government line was that the Home Secretary, then Priti Patel, had determined just this. Having been furnished with information on Rwanda by her officials and demanded and received carefully-worded undertakings from the Rwandan government, she had had to weigh up the risks, being given some margin of appreciation, and make a call. This she had done: whether in some objective sense her call was right, or just, or fair was an important question, but it was not the courts’ business.
With this the original court agreed: but not the Court of Appeal. In today’s decision, taken after a close reading of a number of fairly dense decisions from the European Court of Human Rights in Strasbourg, it took a subtly different line. The majority determined that what the law required was not so much a judgment call by the Home Secretary – all things considered, was Rwanda an acceptable destination for UK asylum seekers? – as a decision by her whether on the evidence there was a substantial risk of ill-treatment in that state. The court having decided that there was such a risk, that was an end of the matter: the decision to classify Rwanda as a safe country had to be overturned.
It is this that ought to give us pause. Few decisions in administrative law are forced, and that is true of this one. The court could quite plausibly have gone either way, as indeed one member of it did. Three judges have so far sided with the Home Secretary, so it’s anyone’s guess what happens if an appeal to the Supreme Court is permitted.
Nobody knows for certain what may happen to asylum seekers sent to central Africa. But that isn’t the point. The question the administrative lawyers need to answer is who out of judges and politicians ought to have the final say about these risks, and whether as a nation we should run them. In Lenin’s words, it is one of ‘who whom?’.
For anyone who believes in democratic control of central social policies like immigration, the response should be clear: it must be the elected representatives. If there is any uncertainty about the meaning of our legislation, and here there is, we should be very wary of interpreting our laws in a way that steers these decisions away from those who can be removed at the ballot-box towards those who can’t.
What should the government do now? For the moment matters are in the air. The appeal to the Supreme Court may or not succeed: we will have to see. There is moreover no certainty that the Illegal Migration Bill, even without the wrecking amendments introduced by the Lords this week, will make any difference.
But there is a strong case for the government acting decisively now. It should consider setting aside Parliamentary time for legislation to make matters clear. A useful provision would be one that decisions by the Home Secretary as to whether a country is a safe destination, and as to whether the risks of sending people there are acceptable, can be challenged only if shown that no reasonable minister could have reached them. It is probably too late to add this as an amendment to the Illegal Migration Bill: but a short self-standing Bill would have some chance.
In short, the government needs to stand its ground. True, this risks confrontation with the European Convention on Human Rights: indeed, the likelihood of a clash is high. But we already have this risk with the Illegal Migration Bill. The government might as well be hanged for a sheep as for a lamb, especially in a cause which, for all the complaints of the liberal establishment, is rightly popular with Middle Britain. Keep going, Suella.
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