Reaction to today’s judgment includes calls for the UK to withdraw from the European Convention on Human Rights. That fundamentally misunderstands the legal situation. Sending people to a country where they face serious human rights abuses infringes an international law rule known as ‘non-refoulement’. This rule is articulated in the European Convention system. But, as the Supreme Court emphasises, it is expressed by several other UN treaties ratified by the UK and also exists as a freestanding rule of international law that binds every country in the world. As such, the European Convention is not to ‘blame’ for today’s judgment or for the rule. And withdrawing from the Convention would not make the Rwanda deal lawful - it remains unlawful under international law generally. Rather, by faithfully applying this universal legal principle, the Supreme Court has saved the UK from complicity in serious human rights violations under a deeply misguided policy.
Within the UK legal and political fields, the Supreme Court’s judgment instead serves to underline ongoing concerns about the viability of the government’s recent Illegal Migration Act and its ‘asylum ban’. That piece of legislation largely stands or falls on the ability of the UK to send asylum-seekers safely and swiftly to Rwanda. But the Supreme Court’s assessment of the evidence shows that this is not possible. The result is that key planks of the Act now cannot be brought into effect for most refugee arrivals. As such, the UK government should refocus its efforts on addressing the real problems within the UK asylum system rather than trying to outsource them to a faraway country.
On the international stage, the fact that the Supreme Court, as the pinnacle of the highly-respected British judicial system, has confirmed the existence of serious flaws in the UK’s so-called ‘new model’ of refugee protection has major consequences. Several European governments have been following the UK-Rwanda proceedings closely, with ill-considered plans to replicate this model in their own countries. They now need a serious rethink about the legality and workability in practice of such proposals. The Rwanda judgment contributes to the growing impression that the more that governments attempt to outsource their basic asylum responsibilities to other countries, the greater the prospect of illegality and resulting human rights violations.
- Professor David Cantor, Director of the Refugee Law Initiative