The government has today, 15 November, lost its appeal at the Supreme Court over whether its plan to send asylum seekers to Rwanda is lawful. The court reached a unanimous verdict, agreeing with the ruling of the Court of Appeal in June that Rwanda could not be considered a safe third country. Reading the judgement, the president of the court, Robert Reed, noted that the UN Refugee Agency had presented compelling evidence that there was a risk of asylum seekers being wrongly sent back to their country of origin (“refoulement”) if they were processed in Rwanda.
Suella Braverman, who last night published an explosive letter in response to being sacked as home secretary, will be rejoicing. In her letter, she accused Rishi Sunak of “wishful thinking” in believing he would win in the courts, and argued that the Prime Minister had “failed to prepare any sort of credible ‘Plan B’” in the event the Rwanda plan was blocked in the courts. “You will have wasted a year and an Act of Parliament, only to arrive back at square one,” she warned.
Braverman and her allies now have the catalyst they need to wage a campaign to leave the European Convention on Human Rights (ECHR), which will create a clear dividing line with the current government.
It is a blow for Rishi Sunak, who was hoping to capitalise on the momentum from the cabinet reshuffle and David Cameron’s return to distance himself from the rows caused by Braverman and cement his authority. The backlash from the right of the party, which is furious about the change in the direction of his government, will grow. And the Rwanda plan was crucial to the PM’s promise, made at the start of the year, to “stop the boats” – a pledge the polls show the public do not believe his government can meet.
[See also: The Cameron delusion]
However, there are elements of the ruling that could be helpful for Sunak as he struggles to keep his fractured party together. Crucially, Reed made it clear that the Supreme Court was not ruling on the principle of sending asylum seekers to a third country – which is the core plank of the government’s strategy for deterring illegal Channel crossings. Its objections to the plan were technical ones, based on Rwanda’s poor human rights record, past evidence of refoulement, the lack of independence of its legal system, and the consequences of a similar scheme for asylum seekers that Israel operated with the country between 2013 and 2018. That means there is scope for the UK government to address these issues and devise a version of the scheme that meets the legal requirements.
Sunak could even argue (if he were bold enough) that the problems with the plan as it currently exists will be ironed out by his new Home Secretary, James Cleverly, casting aspersions on the competency of the previous one.
The Supreme Court also stressed that the principle of non-refoulement – the basis for its ruling against the government – was contained not just in the ECHR, but in other international treaties to which the UK is signed up. It is also embedded in UK domestic law and in several acts of parliament other than the Human Rights Act. “It is therefore not only the European Convention on Human Rights which is relevant to this case, as is sometimes thought,” Reed cautioned. He continued: “Contrary to what is sometimes thought, the Human Rights Act is not the only relevant legislation.”
This presents a helpful opportunity for Sunak to argue that calls to leave the ECHR and to repeal the Human Rights Act are a distraction. He can present his government as getting on with the job of stopping the boats, while the incompetent home secretary he has just sacked rages from the sidelines about a strategy the Supreme Court has already made clear will not work.
It is not an easy situation for the Prime Minister and his new Home Secretary to be in. It will require strict cabinet discipline and skilful communication to reframe this setback as an opportunity and ignore cries of betrayal and failure from the right. Do Sunak and his new top team have the nerves and authority to pull it off?
[See also: The Tory right’s divided tribes]