The Implications of the UK’s Asylum Policy Defeat
Thomas Phillips 24 November 2023

Last week, the UK Supreme Court delivered its judgment on the legality of the government’s plan to send some asylum seekers to Rwanda. The ill-conceived scheme, which is based in large part on a Memorandum of Understanding (MOU) between the UK and Rwanda, was unanimously held to be unlawful. Though the scheme has failed, at least for now, it remains a hinge around which right-wing populist forces seek to build momentum for their policy platform. Given the fact that such forces are globally ascendant and that the UK’s approach has caught-on in their milieu, it is worth reflecting on the insights it generates into the entanglement of law and populist politics.

In brief, the Supreme Court’s carefully reasoned judgment turned in large part on the principle of non-refoulement or, in other words, whether there were “substantial grounds” for believing that asylum seekers removed to Rwanda would be at real risk of ill-treatment as a consequence of being sent from there to another country. Although the externalization of a state’s international protection obligations is not per se unlawful (provided it serves to share, rather than shift responsibility), it is a well-established international law principle that such arrangements should guard against refoulement. As the Court pointed-out, though the principle might derive from international law sources such as the European Convention on Human Rights and the Refugee Convention, it has been transposed into UK law via several pieces of primary legislation, including the Human Rights Act.

The MOU between the UK and Rwanda purports to guard against refoulement, stating in clear terms that Rwanda will treat relocated individuals in accordance with international standards. The Supreme Court, however, underscored the elementary legal point that although the contents of the MOU and the assessment of the executive have some evidential weight, it was ultimately for the judges to assess whether there was a real risk of refoulement by examining Rwanda’s asylum procedures. As the court put it, there was a need to “carry out a fact-sensitive examination of how assurances will operate in practice, in the circumstances prevailing at the material time.” In performing this typically judicial task the Supreme Court leaned quite heavily on the expertise of the UN Refugee Agency, the UNHCR, whose evidence on significant matters of fact was “essentially uncontradicted by any cogent evidence to the contrary.”

The court’s assessment of the adequacy of Rwanda’s asylum system focused on substance over form. Though the UNHCR described its legislation pertaining to refugees as “fully compliant with international standards” it was strikingly critical of how the system worked in practice. The criticisms are too numerous and too detailed to reproduce here, but they include a lack of judicial and legal independence in politically sensitive cases; a “surprisingly high” 100 percent rejection rate of claims from conflict zones such as Syria, Yemen and Afghanistan; the summary rejection of asylum claims absent cogent reasoning; and multiple examples of refoulement combined with evidence of Rwanda’s misunderstanding of the concept of refoulement and of its obligations under the Refugee Convention.

The Supreme Court also drew attention to the fact that enshrining non-refoulement principles in a binding treaty with Rwanda, rather than a non-binding MOU, was no guarantee of Relocated Individuals’ safety. Israel had such a treaty with Rwanda, and it failed to prevent “serious breaches” of rights under the Refugee Convention, including the clandestine removal of asylum seekers to Uganda and Eritrea. Multiple attempts at refoulement were only prevented by the UNHCR’s timely intervention. Moreover, the earlier Court of Appeal judgment on the UK-Rwanda scheme noted evidence that some asylum seekers under Israel’s scheme were subjected to random overnight visits by unknown agents, had their documents confiscated on arrival and ultimately disappeared entirely.

This was a scathing but rigorous judgment. The Rwanda policy is clearly unlawful under both domestic law and international law, and it is difficult to see how the problems identified by the Court can be rectified any time soon. As such, it is an important victory for the marginalized targets of the policy. It is also a victory for important constitutional principles such as the rule of law. But there is an important sense in which the UK’s populist right are trying to snatch victory from the jaws of defeat.

Scholars of populism, such as Cas Mudde, point out that it is a “thin-centered ideology” that attaches to a diverse range of political platforms. Broadly speaking, we should follow Chantal Mouffe in her book For a Left Populism in distinguishing between left-wing and right-wing brands. Both claims to represent an authentic people against an inauthentic elite. Both therefore have an inclusionary and an exclusionary element. Left-wing populism tends to emphasize an inclusionary cultural dimension and an exclusionary material dimension (we the broad mass of the people against them the economic elite) whereas right-wing populism tends to emphasize an exclusionary cultural dimension (we the true British people against them). The latter therefore hangs its virility on, amongst other things, having such a culturally defined other to oppose. For those in the UK who might loosely be described as right-wing populists, rifts with all things European and hostility to asylum-seekers arriving on small boats serve this purpose.

The Rwanda policy is therefore both a concrete project with serious consequences for its targets and a piece of political maneuvering intended to keep the fault lines of right-wing populism burning bright. There is an important sense in which the government’s welcome defeat in the Supreme Court could therefore prove to be a boon to such forces. The Prime Minister, either under pressure from the right of his party or of his own volition, has already responded to the judgment by playing up its international dimensions (“I will not allow a foreign court to block these flights”) and his authoritarian former Home Secretary Suella Braverman –who no doubt sees herself as a future leadership contender—has taken a characteristically hard-line position on disapplying laws such as the Human Rights Act that stand in the way. In typically right-wing populist style, Braverman has posited a united and authentic “British people” whose will is being frustrated by elites empowered by international law to protect unwanted “illegal arrivals.” The fact that the British people as a whole are not exactly united in their support for the Rwanda scheme does not trouble her – presumably because opposition places one outside the category of authentically British. All of which is to say that the UK’s populist right was in something of a win-win situation. If the policy had been ruled lawful then they could have claimed a victory. Since it has been ruled unlawful, they have an enemy in whose face they can flex their muscles for the watching crowd.

For the time being, it seems unlikely that the Rwanda scheme will achieve lift-off. In response to the Supreme Court’s judgment, the government has announced a plan to create a new binding treaty with Rwanda and thereafter to introduce legislation to effectively declare that Rwanda is a safe third country. Such legislation would be intended to replace the Supreme Court’s careful factual analysis with legal fiction. Although this is technically a viable option under the UK’s uncodified constitution which is characterized by the legally unlimited legislative sovereignty of parliament, it is unlikely to complete its legislative journey before the next election. And as others have pointed out, since its utility would be to “exempt the executive from the rule of law, in ways likely to cause serious harm, and indeed deaths” it would almost certainly get bogged-down in a constitutional tug-of-war with the judiciary.

In the end, though, a tug-of-war with legal elites with a potential of removing unwanted others to Rwanda might be exactly the kind of thing the populist right wants. The spectacle, as far as they are concerned, is its own prize.



Cover photo: crew aboard Royal National Lifeboat Institution (RNLI) Severn class lifeboat, the City of London II, pick up migrants in an inflatable boat who were travelling across the English Channel, bound for Dover on the south coast of England. (Photo by Ben Stansall / AFP)

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