The Rwanda ruling is bad news for democracy

The UK government’s plan to deport asylum seekers to Rwanda for processing and resettlement has suffered another blow at the hands of the judiciary. Yesterday, the Court of Appeal ruled the Rwanda plan to be unlawful.

This is the latest stage in a political battle that is almost entirely being fought out in court. This legal back and forth began almost as soon as the Rwanda plan was announced back in April 2022. Human-rights lawyers responded by taking the plan to the European Court of Human Rights on the grounds that it violated the Human Rights Act 1998 (HRA). The ECHR intervened, and stopped the first deportation flight to Rwanda last June.

The Rwanda policy was then taken to the UK High Court. In December, High Court judges ruled in favour of the government, stating that the plan neither breaches the UN Refugee Convention nor the legal obligations imposed by the HRA. And so opponents of the Rwanda plan took their case to the Court of Appeal, where the judges this week overturned the High Court ruling. The court has decided that Rwanda is not a ‘safe third country’ for migrants to be resettled in. It also ruled that the Rwandan government is unable to reliably process asylum claims or sort genuine refugees from economic migrants.

The Court of Appeal was clearly aware of the political implications of its decision. Hence, on Thursday, it was at pains to say its ruling is not a judgement on the merits of the policy itself. Rather, it is a legal judgement based on the evidence set before it. In this case, the crucial evidence came from the United Nations High Commission for Refugees (UNHCR), which argued that Rwandan state agencies did ‘not have sufficient skills and experience to make reliable decisions’ on individuals’ refugee status.

It should also be noted that this was a ‘majority’ decision, not a unanimous one. One judge, Lord Burnett, found that Rwanda was in fact a safe country. He was also satisfied by the assurances given by the Rwandan government and felt the defects in its asylum processes could be remedied.

Now the case is likely to go to the UK Supreme Court, which could, in turn, overrule the Court of Appeal. And on and on it goes.

This legal wrangling should hardly come as a surprise to the government. It knew from the start that the policy would be open to challenge. Home secretary Suella Braverman herself expressed doubts that the scheme would be allowed by the courts earlier this year.

Yet just because the legal objections were predictable doesn’t make them any less concerning. This is not a straightforward case of judicial activism, but institutions of the law are still being encouraged to intervene in the policies of an elected government. That’s the bigger problem here – much bigger than the inhumane and objectionable Rwanda plan itself. It touches on the question of who makes policy, of who rules. Is it the UK’s democratically elected politicians? Or is it the law courts and other unaccountable groups?

Because, as it stands, it seems as if entirely unaccountable bodies are currently deciding our immigration laws. The key evidence set before the Court of Appeal came from the UNHCR, which is hardly a neutral actor. Indeed, it has repeatedly criticised the government’s approach to tackling the small-boats crisis. The UNHCR’s evidence, which included claims of ‘poor practice’ by Rwandan state agencies, was no doubt accurate. But it is still troubling that such decisive evidence came from an unaccountable body with a political objection to the Rwanda policy.

The Court of Appeal’s decision raises troubling questions about the role of politically motivated and unaccountable groups in determining the fate of government policy. We need a proper debate about our immigration laws and asylum policies. But that should be held in the court of public opinion, not in a court of law.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.