The Sunak Government’s flagship initiative to deter small boat crossings and deport asylum seekers to Rwanda is unlawful, the UK Supreme Court unanimously ruled on Wednesday morning, in a judgment which creates big problems for Prime Minister Rishi Sunak. Earlier this week, Sunak successfully executed a reshuffle that brought former Prime Minister David Cameron back to the political front line as Foreign Secretary, and this week he could finally point to progress on taming inflation. Now he finds himself on the back foot again.
Ending small boat crossings across the English Channel—‘stopping the boats’—is an issue on which the Prime Minister bet his political authority back in January. As one of his five priorities, he said, “I fully expect you to hold my government and I to account to delivering those goals.” Immigration and asylum feature high on the list of voter priorities, particularly those who voted Conservative in 2019. While crossings have decreased by 30% this year, voters and MPs are frustrated that overall numbers remain high. The Government had aimed to obtain some deportations to Rwanda to demonstrate progress, which now looks unlikely due to the Supreme Court’s ruling that the deportations are illegal, with an election fast approaching.
To deliver on Sunak’s promises to quell both illegal immigration and the political turmoil in his party, the Prime Minister has this afternoon set out a range of new measures to “get flights off [to Rwanda] in the Spring.” The Government will formalise the agreement with Rwanda into a Treaty and introduce emergency legislation to put into UK law that that Rwanda is a safe country, thus removing the ability of the courts to deem the policy unlawful. Most consequentially, he said he will “revisit those international relationships to remove the obstacles in our way” and he “will not allow a foreign court to block these flights.”
While asylum policy is not a top consideration for most businesses, it overlaps with concerns about the design of the UK’s new post-Brexit legal migration system and will take up significant political bandwidth in coming weeks and months. In particular, it will trigger an intense debate within the Tory party, along broadly familiar lines of moderates versus the more right-wing, emboldening the latter to push for radical solutions such as exiting the European Convention on Human Rights.
What did the Supreme Court rule?
The UK and Rwanda Migration and Economic Development Partnership (as the Rwanda initiative was officially named) sets out to deport asylum seekers who have arrived in the UK illegally to Rwanda and have them claim asylum there instead. While the scheme initially had capacity for the transfer of 200 people—compared to 89,398 people claiming asylum in the UK last year—the intention was to scale it up and create a wider deterrent effect to prevent people from making the journey in the first place. The legality of the scheme hinged on the principle of ‘non-refoulment’—a ban on the forcible removal of asylum seekers to countries where they are likely to face persecution.
The Government argued that Rwanda was a ‘safe third country’ and as such the UK was not violating its international obligations. However, the Supreme Court found “substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulment to their country of origin if they were removed to Rwanda.” The Court cited that Rwanda had rejected 100% of asylum claims made by Afghan, Syrian and Yemeni nationals. Insofar as there was any silver lining for the Government, the Court held that asylum seekers could in principle be transferred to ‘safe third countries,’ but that Rwanda did not currently meet these criteria. Insofar as there was any silver lining for the Government, the Court held that asylum seekers could in principle be transferred to ‘safe third countries,’ but that Rwanda did not currently meet these criteria.
How has the Government responded?
The Government says it is disappointed by the ruling but seized on the Court’s statement that such schemes could in principle be lawful if certain conditions are met. After the judgement, Sunak and new Home Secretary James Cleverly reiterated that the government remains committed to ‘stopping the boats.’ After the judgement, Sunak and new Home Secretary James Cleverly reiterated that the government remains committed to ‘stopping the boats.’
At PMQs, Sunak said, “If it becomes clear that our domestic legal frameworks or international conventions are still frustrating the plans at that point, I am prepared to change our laws and revisit those international relationships.”
In a measured response Cleverly said he respected the Supreme Court’s decision and he said the UK was already working to upgrade its agreement with Rwanda into a full Treaty that would address many of the concerns raised by the Court. Ultimately, the challenge for the Government is that the kind of countries and regimes open to such a scheme will by definition have to clear a high bar to assure UK courts that they are safe destinations.
These cautious comments were superseded by the Prime Minister’s strident press conference, in which he vowed to legislate to get his way, and warned of changes to our international relations—perhaps signaling a renegotiation of our relationship with the ECHR (though not necessarily withdrawing). This sets up a battle royale in Parliament: Labour will oppose the measures in the Commons. Meanwhile, this being the final parliamentary session before the election means that the Government will not have the ability to ‘bring back’ any legislation which falls in the House of Lords; this affords the upper House, where the Government has no majority, an effective veto on Sunak’s emergency legislation.
Mindful of the complicated politics on this issue, the Labour frontbench approach has been to focus more on the practicality of the scheme as opposed to its ethics. Labour’s shadow Home Secretary Yvette Cooper said, “Labour argued from the start this plan is unworkable and extortionately expensive, now it has been confirmed as unlawful because the Government failed to ensure they had a robust and workable policy.”
Ruling paves the way for intense Tory infighting on immigration
The issue of immigration and asylum now moves firmly back into the political arena. The long-running legal process kept the issue in a deadlock and allowed the Government to move the conversation on. This hiatus has now ended and politicians (and media outlets) who want more drastic action on addressing immigration—with a significant reduction in both asylum seekers and legal immigration—are ramping up their campaigning.
The Conservative Party has repeatedly committed to reducing immigration. This was a significant driver of pro-Brexit sentiment, but with figures higher than ever, focus has shifted to reducing illegal immigration via small boat crossings. However, this focus has simply illustrated the extent to which the Government has not yet managed to ‘take back control’ of its borders.
There are big divisions within the Party over strategy, above all whether the UK needs to curtail, remove or even simply ignore the need to apply the European Convention on Human Rights (ECHR) and the United Nations Refugee Convention—something the Prime Minister wasn’t clear about this afternoon This in turn prompts more profound questions. The Belfast/Good Friday Agreement securing peace in Northern Ireland, for example, has the ECHR at its heart, as does the Trade and Co-operation Agreement with the EU.
This disagreement was a crucial factor in Sunak’s decision to fire Suella Braverman as Home Secretary. In a widely read letter to Sunak published after her sacking, Braverman argued that rejecting any curtailment of the UK’s international obligations constituted a “betrayal of your promise to the nation that you would do ‘whatever it takes’ to stop the boats.” Given the number of practical issues identified with the Rwanda scheme, a former Cabinet Minister told EGA they believed that Braverman and her supporters were never really enthusiastic about the scheme on its own terms and saw its inevitable failure as paving the way to the UK exiting the ECHR.
With Braverman on the backbenches, the Party’s right wing now has full license to amplify this issue and make life difficult for Sunak. This dynamic is one of the reasons that he has reacted so strongly to the Court’s judgement.
In what may become the biggest challenge to his authority to date, the Prime Minister will for the first time be wary of colleagues using Party mechanisms to express ‘no confidence’ in his leadership. A few have already done so, but with a requirement that 15% of the parliamentary party formally express their desire for a new Leader, Sunak arguably has breathing space for the foreseeable future.
While the Tory right are unlikely to be able oust Sunak or force through their preferred policy, they can still hobble the Party’s election strategy which will be to retain its core vote and try to prevent Nigel Farage and the Reform Party breaking through on its right flank. It is a strategic dilemma the new Foreign Secretary will be well familiar with.
Implications for Businesses and Organizations
For companies who were evaluating whether or not the ruling would potentially usher in new movements on broader immigration policy, hopes for progress have likely been pushed down the road again. The implications of the UK Supreme Court ruling are likely more in the realm of political leadership, as the blow heightens perceptions of instability and short-timer status for the Sunak government.