Court Rules Sending Asylum Seekers Abroad Is Unlawful, But Is It Ethical Or Successful?

On Wednesday, November 15 the UK’s Supreme Court ruled that the British government’s plan to send migrants to Rwanda was unlawful, sending Rishi Sunak’s cabernet into a frenzy of Plan B writing in order to keep one of the Conservative Party’s key manifesto policies afloat.

The nub of the ruling was that, whilst the principle of removing migrants to a safe country was lawful, the agreement the UK entered into with Rwanda did not respect that principle. One of the legal definitions of a safe country is one that respects the principle of ‘non-refoulement.’

The Court noted that “This principle requires that asylum seekers are not returned, directly or indirectly, to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, or they would be at real risk of torture or inhuman or degrading treatment.”

As part of the agreement, the UK and Rwanda drew up a Memorandum of Understanding (MoU) that Rwanda would not practice refoulement, however, the big issue with an MoU, which the Supreme Court explicitly highlighted, is that it is not legally binding. An MoU is more of a gentlemanly undertaking and therefore not a good mechanism to use when trying to draw up an agreement to fulfil obligations in regards to refugee safety that the UK are legally obliged to fulfil. 

Why did the government choose to use a non-binding agreement rather than a legal one? The biggest assumption is simply ‘because politics’; Rishi Sunak had made a pledge to decrease the number of migrants coming in small boats by the end of 2023, and the government had been in free fall since the multiple catastrophes and scandals brought about by Boris Johnson and Liz Truss and sailing closer to a general election that it looks set to lose. Therefore time was of the essence, Rishi needed to see results and see them quickly and a MaU is far quicker to negotiate than a legally binding agreement.

The Court found that Rwanda had, in fact, been merrily practicing refoulement (sending migrants back to unsafe countries) since the agreement had been reached with the UK and the country’s government was noted as displaying an “apparent inadequacy” in its understanding of the requirements of the Refugee Convention. Moreover, Rwanda had failed to comply with a previous agreement drawn up with Israel for taking in its refugees, so the UK’s decision to enter into an agreement with a country that had failed to abide by a similar agreement is fairly bewildering. It’s like electing to stay in a hotel that has a single 1-star Trip Advisor review. 

The upshot of the Supreme Court ruling is that new Home Secretary James Cleverly, who is on record as describing the Rwanda policy as “batshit crazy”, now has to execute a Plan B following Suella Braverman’s vitriolic toy-throwing resignation letter, and Rishi Sunak seems intent on continuing to steer the migrant policy ship towards the iceberg rather than rethink it entirely.

As the Supreme Court noted, withdrawing from the EU’s Convention on Human Rights wouldn’t solve the issue for Sunak because the UK is also a signatory to the UN’s Universal Declaration of Human Rights and the 1951 Refugee Convention, both of which would be breached if an agreement with Rwanda were to go ahead under the current circumstances. If the UK withdraw from all international human rights agreements it would be in the dubious company of Russia and Belarus. The UK also has its own homegrown Human Rights Act and sending migrants to Rwanda would also breach that.

Why Does The UK Want To Send Migrants Abroad?

The ins, outs and arguments about the Rwanda policy ruling are a bit of a red herring because the main reason for the UK government wanting to send migrants to another safe country is to meet its own targets of reducing the backlog of asylum claims. 

The deal with Rwanda wasn’t just that it was a ‘safe country’ for refugees to stay in whilst the UK processed their claims, it was giving the claim to Rwanda to process and, having done so, they would have the responsibility for either allowing the asylum seeker to stay in their country or deporting them back to their country of origin if their claim was denied. So the deal with Rwanda would effectively wipe a percentage of the UK’s asylum claims off the books completely.

In March 2014 there were 16,273 asylum claims awaiting an initial decision, in March 2020 there were 40,830 and in March 2023 a staggering 138,000 claims awaiting an initial decision. At the end of 2021, the UK had the second-largest asylum backlog in Europe after Germany, Spain’s backlog was around 72,000, and France’s was 50,000. 

One could be forgiven for thinking these figures must be a symptom of the UK having more asylum seekers than Germany, France or Spain but, in fact, Germany received 191,000 applications that year, France 121,000, Spain 65,000 and the UK received 56,000 applications in the same period. In other words, the UK managed to have the second-biggest backlog in Europe despite having a comparatively low number of asylum claims.

Why Does The UK Have Such A Massive Backlog In Asylum Claims?

As we’ve seen, the reason for the UK’s backlog is not a tsunami of asylum claims out of all proportion to other European countries. The backlog is building because the length of time it takes to get to an initial decision is growing.  In 2014, 87 per cent of asylum applicants received an initial decision within six months; in 2021 that figure dropped to six per cent.

By June 2023 the caseload of asylum claims in progress was 215,500 and, of those, 138,000 were awaiting an initial decision. In other words, the caseload is increasing because the output of the department in terms of decisions is dropping. Perhaps the answer is a lack of staff. Well no, because back in 2016 the Home Office had 260 caseworkers who made an average of 101 initial decisions a year each. By 2022 the Home Office had 614 caseworkers making an average of 24 initial decisions a year each – a quarter of the amount made in 2016.

If the Home Office had managed to maintain the level of initial decisions a year it was making in 2016, approximately 31,000 a year, the backlog by the end of 2022 would have been 32 per cent, or 37,000 lower than it was.

The reason for well over double the number of Home Office caseworkers producing a quarter of the initial decisions each that they were previously seems to be down to a combination of factors. Firstly, an inspection of the UK’s asylum casework by the  Independent Chief Inspector of Borders and Immigration (ICIBI) in 2021 highlighted poor training, low morale, high staff turnover (33 per cent in 2020/21 and 46 per cent in 2021/22) and a reliance on outdated technology like Excel spreadsheets. The report noted that caseworkers rarely stayed in the post for more than 24 months, yet it took 12-18 months for a caseworker to become proficient at making decisions on asylum claims.

Another factor was the discontinuation in 2019 of an internal ‘customer service standard’ target to process 98 per cent of straightforward cases within six months. Finally, in 2021 the government introduced new rules on inadmissibility, in other words, the rule that an asylum seeker should claim asylum in the first safe country they came to. If it is found that a claimant passed through a safe country to reach the UK, the law allows that asylum seeker to be returned to that safe country – but critically, only if the safe country agrees to accept the asylum seeker back. 

In the case of the UK that safe country is normally France and the upshot is that they normally don’t accept inadmissible asylum seekers back again. However, the entire process of trying to negotiate the move of the asylum seeker back to a safe country takes up to six months, thereby ensuring that many claims are significantly delayed before they even start the process for an initial decision to stay in the UK.

Not only is the backlog growing, whilst productivity is dropping, but the Home Office’s costs are ballooning with it diverting 2.6 billion pounds from the Overseas Development Aid budget in 2022/23, around 300 per cent more than predicted, with much of the budget being blown on housing refugees in hotels for extended periods whilst their claims linger in the backlog.

The Home Office has also tried to fudge the backlog numbers by wiping claims from the list, with 6,000 wiped off in the first three months of 2023 without any initial decision due to administrative technicalities.

What Other Countries Are Sending Refugees Overseas?

When putting forward details of the Rwanda policy in the first place, the UK government pointed to the apparent success (their view) of similar policies in other countries.

Israel

In 2014 Israel came to an agreement with Rwanda to take its asylum seekers and migrants and enacted a policy that gave refugees landing in Israel the choice of taking 3,500 US dollars and voluntarily being sent to Rwanda or Uganda or to stay in Israel and be jailed. 

Around 20,000 refugees were either returned to their country of origin or sent on to the two African countries during the time the scheme ran but it was then found that many deported to Rwanda and Uganda had their travel documents taken away on arrival and were held in hotels with armed guards. Many escaped and paid people smugglers to take them back to Europe. Israel’s policy was scrapped in 2019 after the country’s Supreme Court, like the UK’s Supreme Court, found it to be unlawful. 

Australia

The country has operated an on-off policy of sending migrants landing on its shores in small boats to Papua New Guinea’s Manus Island and the South Pacific island nation of Nauru for their claims to be processed.

More than 4,000 asylum seekers, including children, have been sent to detention centres in Manus and Nauru for processing since 2012 with many waiting more than five years for their asylum claims to be processed. In 2021 Australia was forced to close the facility on Manus Island after Papua New Guinea’s Supreme Court ruled it was illegal. The centre on Nauru is still running but is reported to hold only 15 people waiting for their claims to be processed.

Italy

Italy is planning to build two centres to host up to 36,000 migrants per year in Albania with the facility due to go online in 2024. Although the EU has not yet commented on whether it considers the plan lawful, legal experts believe it will be legal as Albania is subject to the European Convention on Human Rights.

Denmark

The country passed a law in 2021 allowing refugees to be moved to asylum centres in a safe country for claims to be processed. It had been in talks with Rwanda about cooperation on migrants but has now paused those plans. Given the UK legal ruling, there is little likelihood that Denmark will pursue an agreement with Rwanda.

Austria

Austria wants to adopt a Rwanda-style deal to deport asylum seekers to a third country and has agreed to work with the UK on migration. Again, now the Supreme Court ruling has judged that Rwanda is not legally deemed a safe country, it is unlikely that Austria will continue working with the UK if Rishi Sunak insists on pushing through a deal with Rwanda rather than finding another safe country to work with.

EU

As a block, the EU has paid Turkey billions of dollars to keep refugees from reaching Greece and has funded the Libyan Coast Guard to push migrant boats bound for Europe back to North Africa. In addition, under a UN programme called the Emergency Transit Mechanism, more than 3,000 people from Libyan detention centres who were heading for Europe have been transferred to Niger.

Does The Policy Lower The Number Of Small Boats?

The short answer is that there is absolutely no data, including from the UK government’s own research, to suggest that policies to send refugees to safe countries for processing or settlement lower the number of migrants and asylum seekers arriving on European shores in small boats. 

Non-profit and international organisations state that the reason these policies don’t lower the small boat numbers is because migrants and asylum seekers are usually going to countries where they have some sort of tie; either family or friends who already reside there. It certainly makes a lot of sense that if a person feels forced to leave their home country, either because of persecution or because of bad economic conditions, they would want to go to a country where they have someone they know. 

The bottom line is that migration will continue whilst wars, unrest and terrible living conditions continue in developing countries and all these policies are much like pruning the top off Japanese Knotweed – it simply keeps sprouting. Most rich Western countries have cut their overseas aid budgets in uncertain economic climes and it could be said that this is a short-termist view because, if money is spent making the countries the migrants come from safer and more prosperous places to live, they wouldn’t feel compelled to leave in the first place.