The UK Supreme Court has unanimously ruled that the government’s policy of removing asylum seekers to Rwanda is unlawful, in a major blow to Rishi Sunak’s government.
Lord Robert Reed, president of the Supreme Court, said asylum seekers sent to Rwanda would be at real risk of being repatriated to their countries of origin without proper consideration of their claims.
The decision infuriated Conservative MPs and left Sunak’s flagship migration policy in tatters. One minister told the Financial Times: “There is no chance anyone will be on a plane to Rwanda before the election.”
The Supreme Court said in its Wednesday judgment: “There are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement.”
Refoulement is the forced return of asylum seekers to their home countries when they are likely to face persecution.
Sunak, who promised to halt cross-Channel migration this year, said the government was working on a new treaty with Rwanda to address the Supreme Court’s concerns about the country’s asylum system.
He welcomed the court’s finding that removing asylum seekers to a third country could in principle be lawful. Sunak told MPs he was willing to rip up UK law and international agreements to make the Rwanda policy work.
“If it becomes clear that our domestic legal frameworks or international conventions are still frustrating plans at that point, I am prepared to change our laws and revisit those international relationships,” he said.
Downing Street said Sunak wanted to put asylum seekers on planes to Rwanda once the new treaty was in force, probably early next year, but ministers admit that would provoke another round of legal challenges.
That would mean that it is highly unlikely anyone would be removed to Rwanda before an election, expected in late 2024.
Sir Keir Starmer, the opposition Labour leader, said Sunak’s plan to send migrants to Rwanda had “blown up” and that “the central pillar of his government has crumbled beneath him”.
Starmer said Sunak had been “told over and over again that this would happen”. He added: “Does he want to apologise to the country for wasting taxpayer money?”
The Rwandan government said Wednesday’s ruling was “ultimately a decision for the UK’s judicial system”.
“We do take issue with the ruling that Rwanda is not a safe third country for asylum seekers and refugees, in terms of refoulement,” it added.
Sunak’s deal with Rwanda, which received an initial £120mn payment from the UK last year, has been a showpiece policy of successive Conservative governments and is a central part of the prime minister’s crackdown on irregular migration.
The Supreme Court’s decision leaves a hole in Sunak’s migration policy and will fuel demands by Conservative MPs for Britain to leave the European Convention on Human Rights.
Suella Braverman, who was sacked as home secretary by Sunak on Monday, said that the government “must introduce emergency legislation” in order to block legal challenges under the ECHR and HRA.
Braverman, a proponent of the Rwanda policy, had warned ahead of the decision that Sunak had “failed to prepare any sort of credible plan B” before the Supreme Court ruled.
“There is no chance of curbing illegal migration within the current legal framework. We must legislate or admit defeat,” she said on social media platform X on Wednesday.
Reed stressed in the judgment on Wednesday that the ECHR was not the only legal basis for the court’s decision, saying the UK was bound by other treaties, including the UN convention for refugees.
On the basis of evidence from the UN refugee agency, the court upheld an earlier decision by the court of appeal, which found that there were real risks that asylum seekers sent to Rwanda could be removed to their countries of origin in a potential breach of the UN convention.
“The changes needed to eliminate the risk of refoulement may be delivered in future, but they have not been shown to be in place now,” Reed said.
Conservative MP Marcus Fysh highlighted on social media that 45 Tories had previously sought legislative changes that would have disapplied all international law that threatened to obstruct the government’s border policy.
Many Tory MPs, particularly those representing liberal-minded seats in southern England, are vehemently opposed to the idea of leaving the ECHR. The new home secretary James Cleverly and foreign secretary David Cameron are thought to be unlikely to support such a move.
Natalie Elphicke, Tory MP for Dover, said the Supreme Court’s decision on Rwanda meant “the policy is effectively at an end”. “No planes will be leaving and we now need to move forward,” she wrote on social media platform X.
But Tory deputy chair Lee Anderson said Sunak should ignore the Supreme Court ruling. “I think we should just get the planes in the air now and send them to Rwanda,” he told reporters.
Peter Walsh, senior researcher at the Migration Observatory at the University of Oxford, said Wednesday’s ruling had major implications for the government’s ability to enforce the Illegal Migration Act.
The act, passed in July but yet to come into full effect, bars anyone arriving in the UK without prior permission from claiming asylum and places a legal onus on the home secretary to detain and remove them. The policy relied on there being safe third countries to send migrants to.
“Rwanda was the government’s only option — all of the government’s eggs were, essentially, in that basket, which the Supreme Court has crushed,” he said.