Britain’s Supreme Court is sometimes criticised for being too deferential to the government. The government might well disagree. In 2017 the court ruled that fees for employment tribunals impeded access to justice. In 2019 it said Boris Johnson’s suspension of Parliament during the Brexit saga was unlawful. And earlier this month it delivered a sucker punch to Rishi Sunak’s ailing government when it ruled against the Conservatives’ cherished policy of sending asylum-seekers to Rwanda.

The court’s demolition of the plan, on the ground that Rwanda was unsafe, was so meticulous the policy was “probably dead”, reckoned Jonathan Sumption, a former Supreme Court judge. Yet Mr Sunak has sworn he will revive it. How?

The Supreme Court ruled Rwanda was unsafe because of the risk of refoulement—the danger that asylum-seekers would be sent from there to unsafe countries. This is prohibited by several laws. The first part of the government’s solution is to sign a new treaty with Rwanda. James Cleverly, the new home secretary, has said this would ensure that asylum-seekers sent to Rwanda “cannot be sent to another country than the UK”. Since Rwanda has agreed to settle those who win their asylum claims, he presumably meant those whose claims fail.

This creates a couple of obvious problems. The first concerns the point of the scheme, which is to deter migrants from crossing the English Channel in small boats. There is no evidence it would have this effect, especially given that the government in Kigali has said it can take only a few hundred asylum-seekers a year (compared with the thousands who make the crossing). But if the scheme is to stand any chance of being a deterrent, a Rwandan promise to return people only to Britain would diminish it.

A bigger problem concerns the courts. The Supreme Court accepted that Rwanda had signed its original agreement with Britain, a memorandum of understanding (MoU), “in good faith”. But that did not change its opinion that the country was unsafe. Although MoUs and treaties are different—the former are not legally binding and the latter are—this distinction does not change the grounds for the Supreme Court’s judgment, and therefore seems unlikely to make any future court look more favourably on the scheme.

The court said that, although Rwanda had made “great progress” since 1994, when over 500,000 Tutsi were slaughtered by Hutu, it had a “poor human-rights record”. In 2021, the court said, the British government had itself criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”.

The court’s description of the problems with Rwanda’s asylum system ought to shame the scheme’s champions. The un had documented numerous cases of refoulement, it said, and at least one had occurred after Britain and Rwanda signed their MoU. Rwanda’s legal system has some big holes, too. This matters, the court said, because the right to appeal is crucial in an asylum process and Rwanda’s courts had never heard a single such appeal.

Given all this, the second part of the government’s plan, to pass legislation that would declare Rwanda safe, makes little sense. The House of Lords seems unlikely to pass a law that breaches numerous others. The government no longer has time to use the Parliament Acts, which limit the role of the Lords in passing laws, because these acts also allow the Lords to delay such bills for a year. The legislation has not yet been introduced and Britain must hold its next general election (and the campaigning that precedes it) by January 2025.

Even if this law somehow made it through Parliament, it would still violate international conventions. That has prompted some Tories to argue that Britain should just ditch them. The Supreme Court explained that refoulement is prohibited by several UN conventions as well as the European Convention on Human Rights (ECHR). Withdrawing from them all would be a tortuous process that would threaten the Good Friday agreement on Northern Ireland, which refers to the ECHR repeatedly, and damage Britain’s global standing.

Short of that, the only way the scheme seems likely to get the go-ahead is if Rwanda provably cleans up its asylum system. That would take time. And Britain may not be up to the task of making it happen. “The British government needs to fix its own asylum system,” says Adam Wagner, a human-rights barrister, pointing to its huge case backlog. “The idea that we can also fix a much worse asylum system, halfway across the world, in a country which only 30 years ago suffered the worst genocide in modern history, is for the birds.” ■

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