After significant wrangling in parliament, the government has finally passed its Rwanda Bill – while managing to resist any significant new amendments from the Lords.

It is reported that the Bill is likely to gain royal assent this week and that the government has already identified individuals for removal. Given the scheme appeared dead in the water last year, Rishi Sunak may see this as a triumph. He now has this hugely contentious legislation in place, can finally ratify his treaty with Kigali, and is in a position to carry out his Rwanda plan.

All eyes will now turn to the courts, to see whether Sunak can actually get removal flights off the ground before the election.

The first claims are likely to be heard in the domestic courts in the coming weeks. Although the legislation is very restrictive (it has effectively sought to sideline the domestic courts and disapply elements of international law), it does allow removal decisions to be challenged in very limited cases, on the basis of ‘compelling evidence’ relating specifically to a person’s ‘particular individual circumstances.’

NGOs and human rights lawyers are likely to seize upon this safeguard to prevent the most vulnerable asylum seekers being sent to Rwanda. But given that the legislation is clear that challenges cannot be made on the grounds that Rwanda is ‘not a safe country in general’, or that the person might be returned to a country where they would face mistreatment contrary to international law obligations, it is likely that the government will be able to find some individuals it thinks are removable.

Initially, asylum seekers are likely to appeal, and if any novel legal issues arise, their cases could even reach the Supreme Court. I would be surprised though if the UK courts decide to thwart the government, particularly if the Home Office has done its homework and is seeking to deport individuals who do not have compelling personal circumstances that might allow them to resist removal. The suggestion that asylum seekers could launch legal claims against airlines for breaching human rights laws seems fanciful.

Assuming the government is not defeated in the UK courts, the next challenge is likely to be at the European Court of Human Rights. The government was sufficiently concerned about this that it included a provision in the Rwanda Bill to enable ministers to ignore what are known as ‘interim measures’ made by the Strasbourg Court (which were previously used to prevent removals).

Since that controversy, the European Court of Human Rights has tightened the procedural rule (Rule 39) which allows interim measures. The ECHR has made clear interim measures should only be granted in ‘exceptional circumstances’ where there is an ‘imminent risk of irreparable harm to a Convention right.’ They will also be restricted to cases where the harm ‘would not be susceptible to reparation, restoration or adequate compensation.’ It is not sufficient for an applicant to demonstrate hardship.

If the UK ignores an interim measure it would be breaching international law. But it is far from clear the Strasbourg Court would issue an interim measure in the case of a removal flight. This is particularly the case if the UK promises to safeguard asylum seekers in Rwanda and return them to the UK if the Court finds in their favour. The Strasbourg judges have access to UK news and opinion polling. If they are sensible, they may well refuse to issue an interim measure and postpone any judgments until after a general election, to avoid giving the Conservatives a new stick to beat them with during the campaign.

If there is a full hearing before the European Court of Human Rights, I would be astonished if the Court upheld the legality of the Rwanda scheme.

First, the Court would look at the well-reasoned judgment of the UK Supreme Court from November 2023, which ruled against the scheme. The Conservatives would no doubt argue that the Supreme Court judgment should now be ignored, because of the new Rwanda treaty (which created additional safeguards for asylum seekers). But this claim would be more compelling if the current government had not shut out the domestic courts with its Rwanda Bill.

Additionally, it would be remarkable if the Strasbourg Court, in principle, accepted a precedent that signatories to the European Convention on Human Rights could just relocate asylum seekers to a country where the Convention does not apply.

What is sometimes not appreciated is that the Rwanda scheme goes well beyond the offshore processing of asylum seekers sometimes proposed by other European states. Instead it amounts to the wholesale dumping of asylum seekers on a poor African nation. Even successful claimants would not be entitled to return to the UK. This is the real disgrace.

Even so, Rishi Sunak’s biggest problem is political, not legal. If Labour wins the election, Yvette Cooper has already confirmed that the party will ditch the Rwanda scheme on the basis that it isn’t ‘a serious plan for government’. She is surely right. You don’t have to believe that the scheme is egregious and probably unlawful (although in my view it is both) to conclude that it is no real answer to the challenge of small boats.

Rwanda may be a handy electoral dividing line, but it seems very unlikely that it will turn things around for Sunak. Whether or not he manages to get a flight or two away before the election, it will be a Pyrrhic victory rather than a winning legacy.

QOSHE - The Rwanda Bill won’t survive contact with reality - Alexander Horne
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The Rwanda Bill won’t survive contact with reality

13 1
24.04.2024

After significant wrangling in parliament, the government has finally passed its Rwanda Bill – while managing to resist any significant new amendments from the Lords.

It is reported that the Bill is likely to gain royal assent this week and that the government has already identified individuals for removal. Given the scheme appeared dead in the water last year, Rishi Sunak may see this as a triumph. He now has this hugely contentious legislation in place, can finally ratify his treaty with Kigali, and is in a position to carry out his Rwanda plan.

All eyes will now turn to the courts, to see whether Sunak can actually get removal flights off the ground before the election.

The first claims are likely to be heard in the domestic courts in the coming weeks. Although the legislation is very restrictive (it has effectively sought to sideline the domestic courts and disapply elements of international law), it does allow removal decisions to be challenged in very limited cases, on the basis of ‘compelling evidence’ relating specifically to a person’s ‘particular individual circumstances.’

NGOs and human rights lawyers are likely to seize upon this safeguard to prevent the most vulnerable asylum seekers being sent to Rwanda. But given that the legislation is clear that challenges cannot be made on the grounds that Rwanda is ‘not a safe country in........

© The Spectator


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