Thread by @AlasdairMack66

Here’s my take on the Rwanda judgment in the Supreme Court today.
It’s a longish one, but tl;dr: it’s a disaster for the Home Office and also for the Rwandans, & surely leaves the idea of outsourcing refugee protection to other countries in tatters, perhaps permanently sunk 1/

First up, it’s extremely interesting that the Supreme Court was keen to dispel the idea that the problem with the Rwanda policy is only that it’s contrary to the European Convention on Human Rights 2/

The SC points out that the principle of non-refoulement (not returning people directly *or indirectly* to face risks of human rights abuses) is also prohibited by other international conventions & by UK law – a clear attempt to defuse criticism of the ECHR 3/

(Whether that will stop the usual suspects from calling for the UK to leave the ECHR is of course doubtful, but they’d have said that anyway – indeed Braverman’s letter yesterday seems to have been setting herself up to do so whichever way this judgment went.) 4/

Second, the Divisional Court (High Court) – the only court to have upheld the Rwanda policy – comes in for sharp criticism.
It’s said to be unclear that it understood its own function properly, ie to assess risk in Rwanda, not to review the Home Office’s assessment 5/

The High Court also failed to engage with the evidence before it of “serious and systemic defects in Rwanda’s procedures and institutions for processing asylum claims” 6/

The High Court also took “a mistaken approach” to a key plank of the govt’s case, ie that it was for the govt itself to assess diplomatic assurances given by Rwanda – in fact it shd’ve been for the Court to do so.
(The last sentence has a nice little barb towards ministers.) 7/

The High Court also failed to address crucial evidence, including evidence of how asylum seekers transferred from Israel to Rwanda under an earlier deal had been treated, despite its (you might have thought) obvious implications for how those sent by the UK would fare in Rw 8/

The High Court is particularly criticised for dealing “dismissively” with the crucial evidence of the UN High Commissioner for Refugees, which was largely uncontradicted and should have been given “particular importance” 9/

The High Court was of course the court which primarily refused to stop the removals of people on 14 June last year, meaning that people had to apply to the European Court at the last minute. 10/

https://x.com/AlasdairMack66/status/1724737984610668667?s=20

So having disposed of the High Ct, the next Q for the Supreme Ct was whether to uphold the Court of Appeal’s decision that the Rwanda policy was unlawful.

The SC strikingly doesn’t limit itself (as it cdve) to saying the CA’s view was lawful, but strongly agrees with it. 11/

The SC, again strikingly, dives straight in with this devastating summary of Rwanda’s abject human rights record, including its threats to kill dissidents on the streets of the UK (the point about the first line here is to show that the Home Office knew about this very well) 12/

The SC summarises numerous problems with Rwanda’s asylum processes (set out in more detail by the Court of Appeal), incl lack of training, “ingrained scepticism” towards some groups, lack of understanding of the Refugee Convention, lack of judicial independence etc 13/

Why, you might ask by now, didn’t the Home Office know all this? Well, they shdve done, but it seems officials, under pressure (implicitly from ministers) did inadequate & one-sided research into Rwandan asylum processes, something which ultimately undermined the whole policy 14/

The HO’s fallback argument was basically: “well, even if the Rwandan system is a mess, people won’t be going anywhere anyway”. The SC is as contemptuous as can be of this (to translate for non-legal folk, “somewhat surprising” is as dismissive as it gets) 15/

Now we move to the Israel-Rwanda deal, a catastrophe for Rwanda’s credibility & thus for the HO case – and ofc a total disaster for those affected, who were routinely secretly expelled from Rwanda (some were also left without documents, effectively forced out, trafficked etc) 16/

The HO, again, knew about this but wasn’t deflected from potentially repeating the same mistakes: its lame answer was that the Israel-Rw deal wasn’t even relevant bc the UK-Rw one was new. You might think that was also a “surprising” submission and so, it seems, did the SC 17/

However sadly – if only because it would’ve been what we lawyers call “the ultimate banter outcome” – the Rwanda scheme is found not to be contrary to retained EU law [aspects of EU law which remain part of UK law], bc in fact the relevant provisions were abolished in 2020 18/

It’s important to note that the SC doesn’t rule out that the Rwandan system could be improved, & it hasn’t found that the idea of a scheme like this is prohibited (it wasn’t asked to decide that). 19/

But what are the prospects of that happening? The Court of Appeal previously pointed to a real need for thorough culture change in the Rwandan civil service & judiciary, & to an absence of any sort of roadmap for achieving it (in a state ofc uninterested in the rule of law). 20/

For all the govt’s attempts to put a brave face on it & claim it’ll upgrade the Rwandan system, personally I don’t think flights will go soon, if ever (NB the idea that it would make a difference if there was a treaty w Rwanda is pie in the sky imho) 21/
bbc.co.uk/news/live/uk-6…

And whilst this decision is a disaster for Patel, Braverman, Johnson & Sunak & all else who supported the policy, it’s surely a catastrophe for Rwanda, whose record has been pored over in detail in the most public way. (I’ve never understood why they didn’t predict that.) 22/

For the same reason I can’t personally see any other state wanting to line up to replace Rwanda, whatever ££ incentives are offered (and remember we still don’t know the full extent of these in respect of Rwanda). 23/

Any attempt to amend or replicate this policy will almost certainly be scrutinised with great care & intensity by the courts, inspired by the example of the Court of Appeal and Supreme Court in this case.

The government will not get an easy ride. 24/

At the heart of this of course have been the asylum seekers left in a state of fear & anxiety by this appalling policy – principally those like our client who were actually on the June 2022 flight until the last minute – but also others directly or indirectly affected. 25/

Let this, please, be a turning point in how we treat refugees, and the catalyst for working towards humane, non-racist immigration policies more broadly.

Refugees welcome here, always. 26/

Finally, tributes: the team at @Refugees – UNHCR – put together compelling evidence about Rwanda which formed the basis for this outcome. Its legal team presented that evidence with awesome clarity & force. 27/

@Refugees The legal team for the lead group of claimants (AAA etc) have been outstanding and although it’s invidious to single out anyone, I’m going to anyway, as no praise can be too high for the skill, dedication & humanity of the leading counsel for the AAA team, @RazaHusainQC 28/

@Refugees @RazaHusainQC I was privileged to play a small part in this case, representing one of the co-claimants, "RM", instructed by Daniel Merriman & Tim Davies of Wilsons LLP, alongside David Sellwood & Rosa Polaschek, led initially by Richard Drabble KC & in the SC by Phillippa Kaufmann KC 29/
👋