The Supreme Court has deemed the government’s flagship Rwanda asylum policy unlawful. But before that, in a highly personal resignation letter made public on Tuesday night, Suella Braverman argued that, win or lose today, Sunak’s asylum strategy is unworkable. The former home secretary is right, but not for the reason she thinks, writes Rhys Clyne
The Rwanda policy was unveiled 18 months ago. As we and many others have argued, the scheme was never going to ‘stop the boats’ 14 https://www.instituteforgovernment.org.uk/article/comment/governments-rwanda-asylum-seeker-plan-wont-work – and the Supreme Court has now confirmed that the policy is unlawful, at least in its current form. The onus is now on the government to set out what it believes can be done to make the policy lawful, but the judgement means the policy cannot go ahead anytime soon – and not in time for the general election most likely next year.
Legalities aside, the Rwanda policy would only ever have applied to a small fraction of the people arriving in the UK by small boats. The most generous estimates suggested Rwanda could have accepted around 1,000 people, a figure dwarfed by 27,000 people who crossed the Channel this year so far. It is true Rwanda had placed no cap on the scheme, but it was unlikely to build the infrastructure required to increase capacity unless it was clear people would be sent from the UK, and regardless that would have taken time to develop.
The policy was based on the huge and hopeful assumption that it would deter asylum seekers from making the journey across the Channel, even if only a small number would actually be sent to Rwanda. But there is still no evidence that this would have been the case, even had the policy been implemented without a hitch.
Sunak’s Rwanda strategy has run out of road ahead of the election
The Supreme Court was keen to note that its judgement did not mean the government could not, in the future, overcome the risk that asylum seekers would be sent, by Rwanda, to an unsafe country (known as ‘refoulement’). But, given the breadth of evidence the court cited in support of its judgement – including more than 100 examples of refoulement from Rwanda, some of which occurred even after the agreement with UK government – this would require substantial changes to the policy. Sunak has said the government is working on a new treaty with Rwanda. But that, and any subsequent legal tests, is not realistically going to happen this side of the general election.
Braverman and others on the right of the Conservative Party have responded by calling for the UK to override the European Convention of Human Rights and any other international obligations or domestic policy that would block the policy. 15 https://twitter.com/SirJJKC/status/1724713787943497953 Sunak’s appointment of James Cleverly as home secretary sends a strong signal that he does not wish to take this path; Cleverly has previously argued in favour of continued adherence to the ECHR. The prime minister has said that he would be prepared to revisit domestic and international legal obligations if other efforts fail but, again, that is unlikely to happen ahead of the election.
The government could try to strike ‘Rwanda-style’ agreements with other countries. The Home Office is reportedly negotiating with at least two governments. 16 //inews.co.uk/news/politics/uk-working-deals-other-countries-rwanda-plan-rejected-2755270 But these negotiations also take time. And any future deals would face similar legal tests as those to which the Rwanda policy has been subject. They, too, are highly unlikely to be deliverable before the election, if ever.
In the meantime, the Home Office has been unable to implement most of the Illegal Migration Act. Around 12,000 people have arrived in the UK by small boat since it made all such people potentially ‘inadmissible’ for asylum. These asylum seekers are stuck in the UK, mostly without the right to work, under threat of being deemed permanently inadmissible for asylum, and with little prospect of being removed to another country. This fundamental gap in the policy creates a limbo that is the worst of both worlds: it is harmful to the asylum seekers involved and expensive for the state to maintain.
The government, and Labour, should focus on workable solutions instead
All of that means that the prime minister has very limited options available to him on asylum that would give him a success story ahead of the general election. But Sunak finds himself in that position because he chose to pursue an unworkable strategy, as has been clear throughout. 19 https://www.instituteforgovernment.org.uk/publication/illegal-migration-bill In that sense, Braverman’s attack is correct.
The government should focus instead on what might actually help it achieve Sunak’s pledge to ‘stop the boats’ – even if most of these efforts will not come to fruition until the next parliament. And the pressure is therefore on Labour, too, to develop plans for more plausible solutions.
International agreements on returns are important, especially given Rwanda-style safe third country agreements have proven so unworkable. The EU’s Dublin Agreement – to which the UK is no longer a party – was no silver bullet, but the UK will need arrangements with France and other EU states if this problem is going to be solved collectively.
Politicians should look also at what can be achieved by going with the grain of existing community support. Could the quick success of Homes for Ukraine be built upon? To create a universal community sponsorship scheme to form part of the answer while diffusing some of the political divisiveness.
Would this or a future government be willing to consider the potential of expanded, legal routes for UK asylum and protection from abroad? Experts have recommended doing so and capping numbers with a parliamentary vote, to maintain the government’s control of the asylum system. 20 https://www.britishfuture.org/publication/control-and-compassion/ Control, after all, is most voters’ priority.
When the Rwanda policy was announced in April last year, the civil service warned there was no evidence that it would work. But in the last year and a half, it has not seriously explored alternative ways of handling irregular migration. In the long-run, migration policy is in desperate need of a more sustainable, independent evidence base to build a sense of what works and weigh against the influence of ill-founded assumptions. The Home Office should commission that evidence base and use it. And ministers should clarify and test their priorities more regularly and openly through an annual plan covering all forms of migration, including asylum.
Sunak is not going to be able to stop the boats before the election. But he can use this ruling as a springboard to start focussing on what might actually work instead.