Suella Braverman was wrong to say that yesterday’s High Court ruling “thoroughly vindicates” the policy of sending asylum seekers to Rwanda.
As the judges made clear – they often do in politically charged cases – their job is to say whether the Government has followed the law, not whether its decisions are sensible or humane.
The prospect of the scheme actually operating as intended remains distant, but the judgment may have brought Ms Braverman’s dream of a plane full of deportees flying to Rwanda just a little closer.
One reason why any such flight, if it takes place at all, is likely to be many months or even years away is that the Home Secretary’s victory was far from complete. In the eight individual cases it was asked to decide, the Court found that the implementation of the policy was so unfair that the decisions to send the asylum seekers to Rwanda had to be quashed. Over a short period in May and June, Home Office officials repeatedly ignored representations and evidence supplied to them.
Asylum seekers, all of whom had recently endured the terrifying cross-channel journeys, were given seven days to explain why they had not claimed asylum somewhere else first. Their explanations varied. In many cases they had been travelling across Europe in sealed lorries, let out, if at all, only briefly in isolated places and without any means of making an asylum claim. A retired police officer of many years experience provided a report explaining that it was his experience that generally “migrants had no say in the process from the point that the fee was agreed to the point of arrival at their end destination.” Those involved in smuggling people across borders take care to see that their cargo does not wander off.
Some wanted to come to Britain because of relatives living here, or because they spoke some English, but no other European language. All spoke of horrific treatment in their home countries (Syria, Iran, Iraq and Vietnam) and many were able, even within the ridiculously tight timetables set by the Home Office, to provide evidence of torture. Many suffered from mental illness.
Again and again the Home Office decisions were quashed. In one case – who knows how unusual this is? – immigration officers simply muddled up the accounts of two entirely different claimants. In another an applicant’s legal representative was told in writing that he had until 30th June to make representations, before receiving an email on 31st May informing him that in fact they had meant 30th May and the time had now expired. It is not explicitly stated in the judgment, but the picture that emerges is of immigration officials under pressure – one must assume from above – to find people, any people, to send to Rwanda as quickly as possible without too many scruples about how this was done. The process was rushed, mismanaged and botched. Even if the policy itself was lawful, its implementation was so unfair and chaotic as to be unlawful.
Although the “interim measure” issued by the European Court of Human Rights preventing the Rwanda flight leaving in June did not feature in the judgment, the European Court might also feel able to claim that it too has been vindicated. Had the Court not intervened to stop the flight, 8 asylum seekers would have been deported to Rwanda on the basis of decisions that were so unfairly taken that they all had to be quashed.
(As an aside, those such as Mr Sunak, advocating a change in the law to prevent the ECtHR intervening in this way are missing the point: the Government was free to ignore the Court’s “interim measure” as a matter of domestic law, but acceded to it because of the need to comply with its international obligations. So long as the UK remains a signatory to the European Convention it will continue to have a treaty obligation to comply with decisions of the ECtHR).
And this is not the last word on the law: there is almost certain to be at least one and possibly two further appeals, and there may yet be applications to the European Court of Human Rights.
Although the judgment runs to 139 pages, and contains much detailed discussion of the astonishingly complex law relating to refugees, the essence of the challenge to the policy was that it was unlawful and irrational to deport people to a country where they would not be safe from political persecution, torture and ill-treatment. If the Human Rights Act has just one purpose on which all civilised people should surely agree, it is that it should prevent people – anyone – being exposed to the risk of torture.
Some of the evidence on how likely this was in Rwanda was set out in a single, astonishing, paragraph of the judgment:
“There is evidence that opportunities for political opposition in Rwanda are very limited and closely regulated. The position is set out in the ‘General Human Rights in Rwanda’ assessment document, one of the documents published by the Home Secretary on 9 May 2022. There are restrictions on the right of peaceful assembly, freedom of the press and freedom of speech …”
“Opportunities for political opposition in Rwanda are very limited and closely regulated.”
That doesn’t sound too good, but what might this “close regulation” involve in practice? The Home Secretary’s assessment document was explicit:
“Returning to the material covered in the Home Secretary’s assessment document, there is also evidence (from a US State Department report of 2020) that political opponents have been detained in “unofficial” detention centres and that persons so detained have been subjected to torture and article 3 ill-treatment short of torture.”
So “regulation” of political opponents in Rwanda, according to the Home Secretary’s own evidence, sometimes means torture, or if you are a bit luckier perhaps merely “ill treatment”, at the hands of government thugs in an unofficial prison.
More details of exactly what that torture might involve are not given in the judgment. But you don’t need to look very far to learn. A 2017 Human Rights Watch report described beatings, electric shocks to the genitals, asphyxiation and mock executions.
Even the official prisons in Rwanda, according to the same document are:
“over-crowded and the conditions are very poor.”
Well perhaps the same could be said for many British prisons, and certainly for immigration detention centres, but our government does not regulate political activity by attaching electrodes to the genitals of its political opponents..
Clearly a propensity to torture ones opponents is not quite the same as a propensity for dishonesty. Even so – you may think differently – when judging someone’s bona fides the fact that they torture their political opponents raises quite a big red flag over their general trustworthiness.
The judges took a different and more generous view. We shouldn’t, they said, worry too much about what the Rwandan government does, what matters is what it says:
“There is no suggestion that any of the individual Claimants would be required to conceal presently-held political or other views. The Claimants’ submission also assumes that the response of the Rwandan authorities to any opinion that may in future be held by any transferred person would (or might) involve article 3 ill-treatment. Given that the person concerned would have been transferred under the terms of the MEDP [the partnership agreement with Rwanda] that possibility is not a real risk. It is to be expected that the treatment to be afforded to those transferred will be kept under the review by the Monitoring Committee and the Joint Committee (each established under the MOU [the Memorandum of Understanding]). Further, the advantages that accrue to the Rwandan authorities from the MEDP provide a real incentive against any mis-treatment (whether or not reaching the standard of article 3 ill-treatment) of any transferred person.”
The insouciance of this part of the judgment is breathtaking.