The government has indicated that it may seek to withdraw from the European Court of Human Rights (ECHR) if the supreme court finds that sending asylum seekers to Rwanda is unlawful. We should be equally concerned for the rights of everyone in the UK, citizen or foreign national, if the supreme court finds for the government. Publication of the Rwanda judgment is expected in December.
In June this year the court of appeal found that the Rwanda plan was unlawful. The judgment and the summary are available here.
The appeal court judgment
The court found that the Home Office was not acting unlawfully in sending asylum seekers to another country or being the sole assessor of safety – as opposed to accepting a formal designation such as that issued by the UN – so long as it could demonstrate its methods were sufficiently sound (which would include taking into account the views of the UN and other expert bodies).
However, the court also found that as the government had not sufficiently assessed the risks for any of individual claimants it had behaved unlawfully.
The government’s appeal to the supreme court argued that this judgment was in error and that the UK government was the best placed to determine, and should be the sole authority to do so, the safety and protection of rights in respect of any countries with which it formed agreements.
The claimants also appealed against the appeal court judgment, arguing Rwanda was not a safe country and that its asylum decision system was not sufficiently well developed or robust to ensure refugees would not be returned to their own countries or another country where they might face further persecution (‘refoulement’which is against article 3 of the European Convention on Human Rights).
The government case and ‘British exceptionalism’
The government’s appeal to the supreme court hinged on whether the agreement reached with Rwanda, the memorandum of understanding (MOU), with relevant oversight and monitoring mechanisms, would ensure safe application of Rwanda’s asylum system (at least for those asylum seekers deported from the UK).
The government made no attempt to argue Rwanda was a safe country for refugees but said that its prior treatment of refugees had no bearing on the matter as the UK’s approach offered materially different protections to those previously established, meaning the claimants’ evidence of prior abuses and current lack of safety should be disregarded. It also argued that it was solely for the UK government to determine to which countries it is safe to send refugees, and that the UN’s internationally agreed safety designations would not need to be applied.
In essence, the government’s case was not that it had the requisite expertise in the treatment of asylum seekers, but that its negotiating skill trumped all other expertise. Its superior deal making ability would ensure Rwanda complied with international norms and standards irrespective of past behaviour or expert opinion. Sir James Eady representing the Home Office said, “We are the experts in assessing the core issue of how the friendly foreign state is likely to behave”.
The government also opined that, even if it was in error in this judgment, it was not the business of the court to challenge this. The Home Office argued there were no good legal grounds for mistrust of the government, so the appeal court was wrong. Sir James Eadie emphasised this throughout the hearing, saying he was inviting “the court to place weight on and/or give respect to the judgment of HM government”.
No commitment to a humane asylum system
Sir James continued: “it is appropriate to accord significant respect to the judgment of government” … “on questions of judgment and prediction” the “government is well placed to make” and “weight and respect is to be afforded to the government’s judgment hereto”.
The government has not set out the criteria (or standards) against which Rwanda will be judged other than to stipulate in the MOU that they should be “in accordance with the Refugee Convention, Rwandan immigration laws and international and Rwandan standards, including under international and Rwandan human rights law, and including, but not limited to ensuring their protection from inhuman and degrading treatment and refoulement”.
Missing from any of the arguments put forward by lawyers on behalf of the government was any commitment to a humane asylum system. Government submissions argued, not that Rwanda was safe by any objective (e.g. UN or UK Human Rights Act) or subjective (experience of refugees) criteria, but that these were irrelevant.
The importance of the ECHR and the European Convention on Human Rights
The claimants were also given leave to appeal to the supreme court and they argued that Rwanda is unsafe for refugees and that the UK government had ignored expert warnings and advice in attempting to send them there.
If the supreme court finds for the government, the claimants are likely to proceed to the ECHR continuing to argue that article 3 of the European Convention on Human Rights is in breach. (Article 3 states that everyone has the right to life, liberty and security of person.)
The government has indicated that it may withdraw from the ECHR (and the European Convention on Human Rights) if the supreme court determines the Rwanda scheme is unlawful. Clearly this suggests that it expects the ECHR may find against it.
UK residents’ and citizens’ rights
To leave the ECHR, the UK would first have to leave the Council of Europe and repeal the 1998 UK Human Rights Act. The European Convention on Human Rights is incorporated into, and enforced in the UK through, the Human Rights Act.
In such a case, the UK would be left with very little human rights legislation; nothing much else has been passed since the Scottish and English bills of rights in 1689.
The European Convention on Human Rights and the Human Rights Act also underpin the Good Friday Agreement, the trade and cooperation agreement (our post-Brexit relations with the EU), the devolution settlements of Scotland, Northern Ireland, and Wales and various multi- and bi-lateral agreements the UK has with other countries for the exchange of information and offenders.
The government could opt to bring forward a new UK ‘bill of rights’ to incorporate resident and citizen rights in advance of repealing the Human Rights Act and this might offer some protection. It has not indicated any inclination to do so. Without it, or something similar, UK residents (as well as refugees or foreign nationals) would have no human rights protections.
Aligning the UK with Belarus and Russia
The European Court of Human Rights has made very few judgments against the UK, just one or two a year at most, and the UK has the lowest per capita judgments made against it. It also has a good record of compliance with judgments and establishing remedies. This threat to withdraw from human rights legislation represents a very significant development for the UK and needs to be understood as such.
Disregarding the norms and expectations held to by every other European country and aligning the UK with Belarus and Russia (the only European countries not members of the ECHR) would be a strong indication that the government is either intent on reducing the rights of its citizens as well as foreign nationals, or is reckless as to the wider impact.
While we should be very concerned about the government’s response to the supreme court finding against it, we should be equally concerned about the supreme court finding in its favour.
The government’s case is that the views of experts and internationally authorised bodies should have little or no weight in the government’s (or the court’s) decision making – i.e. that the UK government should be subject to no laws or standards except its own; there should be no independent scrutiny of its agreement with Rwanda or the management and practice of that agreement should it go ahead. Further, that the courts have no right to exercise scepticism about the government’s capabilities or intentions.
This ramifications of this case do not solely concern asylum seekers, it is all of us who will be impacted by the Rwanda decision.
With thanks to @lizziedearden for her transcription of the supreme court Hearing:
