Rishi Sunak’s ‘Stop the Boats’ vow was thrown into chaos today as judges dramatically threw out his Rwanda plan.
The Supreme Court concluded unanimously that the scheme to deport arrivals immediately would break the law in a crushing blow to the government.
The decision – which ministers had feared for weeks was coming – immediately sparked Tory demands to loosen protections under the European Convention on Human Rights (ECHR) so the policy can go ahead.
However, critics pointed out the judgment suggested it would have been struck out on other grounds anyway. The case hinged on whether asylum seekers sent to Rwanda would be at ‘real risk’ of being returned to their country of origin and subject to mistreatment.
Tory Party deputy chairman Lee Anderson said the Government should simply ‘ignore the laws’ and ‘just put the planes in the air now and send them to Rwanda’.
Mr Sunak tried to put a brave face on the setback, stressing that the principle of deporting asylum seekers to a safe third country had been upheld, and he would set out ‘next steps’ in a Downing Street press conference at 4.45pm.
Before that he faces a tumultuous PMQs session, while new Home Secretary James Cleverly will make a statement to MPs.
But Mr Cleverly’s predecessor Suella Braverman has already launched an excoriating attack on Mr Sunak’s failure to do what it takes to tackle the Channel crisis, warning he has no ‘credible Plan B’.
Even if the government is able to tweak the plan to the satisfaction of the courts MPs fear it could not happen in time to take effect before the election next year.
Justices at the UK’s highest court upheld an earlier High Court judgment on legislation announced 18 months ago to send asylum seekers who arrive in the UK by unauthorised means to Kigali to have their claims heard there.
In a summary of today’s momentous ruling, President of the Supreme Court Lord Reed said there would be a risk of genuine asylum seekers being returned by Rwanda to the home country they fled from.
Ministers have vowed to press on with the scheme regardless of the result today, with options including elevating the Rwanda deal to a treaty ratified in parliament – making it harder for the courts to block – and passing emergency legislation to disapply human rights laws.
The Supreme Court today delivered a blow to Rishi Sunak by ruling against his Rwanda policy
A hostel in Kigali that was due to be used by asylum seekers sent to Rwanda from the UK
Sacked Home Secretary Suella Braverman has warned he has no credible back-up to ‘stop the boats’
Supreme Court president Lord Reed passing his judgment on the Rwanda deal today
Former Cabinet minister Sir Simon Clarke told Sky News that the UK should now consider leaving the ECHR.
‘Today is a really serious challenge to who governs Britain and whether Parliament can deliver, when we say we want to address what is clearly, by anyone’s standards, an unsustainable level of illegal immigration,’ he said.
‘For my part I think the gauntlet has now been thrown down and we are going to have to pass emergency legislation – at a minimum – to set out that the will of parliament will apply, notwithstanding the ECHR and the associated conventions that the justices referenced. But we may also have to consider, if that is not legally viable, withdrawal from the ECHR.’
He added: ‘This is about whether Britain as a nation state can control who comes to this country and on what terms. It is a fundamental element of whether we are in practice able to govern Britain properly. And if our human rights framework makes that impossible then I am afraid it is the human rights framework that is going to have to change, rather than the policy.’
The New Conservatives group of Tory MPs said ministers must introduce legislation ‘immediately’ to override the ECHR.
Speaking after a meeting of the group with other Conservatives who share the same view, co-chair Danny Kruger said the Supreme Court judgment felt ‘absolutely existential’ for the party.
Options being suggested by the New Conservatives are a ‘notwithstanding clause’ to disapply the ECHR or initiating complete withdrawal from the ECHR.
He said the scope of the ruling meant that the UK’s involvement in other treaties and conventions also needs to be considered.
‘The Government should immediately announce an intention to do what is necessary to insist on our sovereignty. That means legislation to over-ride the effect of the European court, of the ECHR itself and of other conventions including the Refugee Convention if necessary.’
He added: ‘This feels absolutely existential for our party … if this Government will not step up to do whatever it takes to do what the Prime Minister has promised he will, there is no reason for the public to trust us again.’
Dover’s Tory MP Natalie Elphicke has said a deal with France is now the best way to stop small boats crossing the English Channel.
She said the Supreme Court’s ruling on Rwanda ‘means the policy is effectively at an end’.
‘No planes will be leaving and we now need to move forward,’ she said.
‘With winter coming, the timing of this decision couldn’t be worse. Be in no doubt, this will embolden the people smugglers and put more lives at risk.
‘A fresh policy is now needed: a new cross-channel agreement with France to stop the boats leaving and return those that do to the safety of the French coast. That should be David Cameron’s top foreign policy priority.’
Archbishop of Canterbury Justin Welby said he hoped the Supreme Court ruling would cause the Government to ‘reflect and reconsider its approach’.
Mr Welby said the Church of England had ‘been clear in our profound concerns – moral and practical – about outsourcing our obligations to refugees to Rwanda’.
He added: ‘We have been clear that the inefficiencies of our asylum system and its failure to treat all people with compassion and dignity must be addressed. Today’s decision by the Supreme Court leaves our response to desperate people fleeing conflict and persecution in a state of limbo. I hope this judgment will give the Government the opportunity to reflect and reconsider its approach.’
Unveiling the judgment, Lord Reed said the ‘legal test’ in the case was whether there were ‘substantial grounds’ for believing that asylum seekers sent to Rwanda would be at ‘real risk’ of being sent back to the countries they came from where they could face ‘ill treatment’.
He said: ‘In the light of the evidence which I have summarised, the Court of Appeal concluded that there were such grounds.
‘We are unanimously of the view that they were entitled to reach that conclusion. Indeed, having been taken through the evidence ourselves, we agree with their conclusion.’
Reacting to the news, Mr Sunak said today: ‘We have seen today’s judgment and will now consider next steps.
‘This was not the outcome we wanted, but we have spent the last few months planning for all eventualities and we remain completely committed to stopping the boats.
‘Crucially, the Supreme Court – like the Court of Appeal and the High Court before it – has confirmed that the principle of sending illegal migrants to a safe third country for processing is lawful. This confirms the Government’s clear view from the outset.
‘Illegal migration destroys lives and costs British taxpayers millions of pounds a year. We need to end it and we will do whatever it takes to do so.
‘Because when people know that if they come here illegally, they won’t get to stay then they will stop coming altogether, and we will stop the boats.’
In their ruling, which the other justices agreed with, Lords Reed and Lloyd-Jones said Rwanda’s history ‘cannot be effectively ignored or sidelined’ as the Home Office suggested.
The justices said there was ‘no dispute’ that the Rwandan government entered into its deal with the UK in good faith, with strong incentives to follow the terms of the arrangement.
They continued: ‘Nevertheless, intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice.
‘The central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system.
‘In agreement with the Court of Appeal, we consider that the past and the present cannot be effectively ignored or sidelined as the Secretary of State suggests.’
In a 56-page judgment dismissing the Home Office’s appeal, Lords Reed and Lloyd-Jones said the High Court had wrongly dismissed the evidence of the UN Refugee Agency, the UNHCR, about problems with the Rwandan asylum system.
They said: ‘UNHCR’s evidence will naturally be of greatest weight when it relates to matters within its particular remit or where it has special expertise in the subject matter.
‘Its evidence in the present case concerns matters falling within its remit and about which it has undoubted expertise.’
The Supreme Court justices said there was ‘evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention’.
Lord Reed added that changes needed in Rwanda’s asylum system to ‘eliminate the risk’ of refugees being returned to their countries of origin where they could face bad treatment ‘have not been shown to be in place now’.
Protesters outside the Supreme Court today chanted ‘hands off refugees’ and ‘Rishi Sunak, shame on you’
Another woman held a sign saying ‘Rishi Sunak, Priti Patel, Suella Braverman – hands off Africa’
He said there was a legal rule that ‘refugees must not be returned to their countries of origin, either directly or indirectly, if their life or freedom would be threatened in that country’.
‘That rule is called the principle of non-refoulement,’ he said.
The president of the UK’s highest court added: ‘We accept the Home Secretary’s submission that the Rwandan government entered into the agreement in good faith and that the capacity of the Rwandan system to produce accurate and fair decisions can and will be built up.
‘Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were.
‘The changes needed to eliminate the risk of refoulement may be delivered in the future, but they have not been shown to be in place now.’
Lord Reed said in his summary that the European Convention on Human Rights was not the only international treaty that was relevant to the Rwanda case.
He added: ‘There are other international treaties which also prohibit the return of asylum seekers to their countries of origin without a proper examination of their claims.’
These included the the United Nations (UN) Refugee Convention, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and the UN International Covenant on Civil and Political Rights, he said.
Following this morning’s ruling, the Liberal Democrats urged the government abandon the ‘immoral, unworkable and incredibly costly’ Rwanda scheme and ‘get on with fixing the broken asylum system’.
Major of London Sadiq Khan said: ‘The Government’s Rwanda policy isn’t just cruel, callous and morally reprehensible, the Supreme Court has today confirmed its unlawful too.’
Scotland’s First Minister Humza Yousaf said the Rwanda scheme was ‘morally repugnant’ and ‘should be scrapped’.
Human rights groups including Amnesty International and The Refugee Council hailed the Supreme Court’s decision.
Sonya Sceats, chief executive at charity Freedom from Torture said: ‘This is a victory for reason and compassion. ‘We are delighted that the Supreme Court has affirmed what caring people already knew: the UK Government’s ‘cash for humans’ deal with Rwanda is not only deeply immoral, but it also flies in the face of the laws of this country.’
Steve Smith, CEO of refugee charity Care4Calais, said: ‘The Supreme Court’s judgment is a victory for humanity. This grubby, cash-for-people deal was always cruel and immoral, but, most importantly, it is unlawful.’
He added: ‘Today’s judgment should bring this shameful mark on the UK’s history to a close.
‘Never again should our Government seek to shirk our country’s responsibility to offer sanctuary to those caught up in horrors around the world.
‘All the architects of the Rwanda plan may be gone but unless the Government changes course and introduces a policy of safe passage, then the rest should follow them out the door. There can be no more time wasted attacking the vulnerable when all they seek is our help.’
Mrs Braverman tours a building site on the outskirts of Kigali during her visit to Rwanda in March
In an excoriating letter to the Prime Minister yesterday, Mrs Braverman warned he has no ‘credible Plan B’ if an earlier High Court ruling that the policy is unlawful is upheld.
As of November 12, 27,284 people had crossed the Channel.
Meanwhile, the ‘legacy’ backlog of UK asylum applications stood at 33,253 as of October 29, down nearly a half (47%) from 62,157 on July 30, according to new figures from the Home Office.
Mrs Braverman’s replacement, James Cleverly, outlined the possible outcomes during the first meeting of the Prime Minister’s new-look Cabinet after the dramatic reshuffle that saw Mrs Braverman shown the door.
Senior ministers had wargamed responses to a defeat, but Mrs Braverman warned of a ‘betrayal’ of Mr Sunak’s promise to do ‘whatever it takes’ to stop the crossings regardless.
The sacked Home Secretary wrote in the letter that if they lose he will have ‘wasted a year’ on the Illegal Migration Act ‘only to arrive back at square one’.
‘Worse than this, your magical thinking – believing that you can will your way through this without upsetting polite opinion – has meant you have failed to prepare any sort of credible ‘Plan B’,’ she said.
Downing Street has vowed to continue to work to tackle small boat crossings ‘whatever the outcome’ in the Supreme Court.
‘The Prime Minister believes in actions, not words,’ a No 10 spokeswoman said in response to Mrs Braverman’s declaration of political war.
Leaving the European Convention on Human Rights was not discussed at yesterday’s Cabinet meeting, the Prime Minister’s official spokesman said.
Contingency plans have been ‘discussed among Cabinet ministers’, the spokesman said, and ‘options for possible scenarios’ have been prepared.
Last month, the Home Office challenged a Court of Appeal ruling from June that overturned the High Court’s finding that Rwanda could be considered a ‘safe third country’ for migrants.
The strategy is aimed at deterring migrants from crossing the English Channel on small boats
Lawyers representing people facing deportation to the east African nation argued Rwanda is an ‘authoritarian, one-party state’ with a ‘woefully deficient’ asylum system.
But the Home Office has said the policy to remove asylum seekers to a ‘country less attractive’ than the UK, ‘but nevertheless safe’, is lawful.
The Illegal Migration Act brought into law the Government’s policy of sending some asylum seekers to Rwanda.
However, the plans announced in April 2022 have been held up in the courts, with no deportation flights having taken place despite £140 million already being handed to Kigali.
Whereas Mrs Braverman repeatedly signalled she wanted out of the ‘politicised court’, Mr Cleverly said while foreign secretary in April he was ‘not convinced’ the move is necessary.
He said that the European countries that are not signatories – Russia and Belarus – are a ‘small club’, adding: ‘I am not convinced it is a club we want to be part of.’
Mr Sunak has set stopping small boats of asylum seekers from arriving in Britain as one of his five pledges to the electorate.
But more than 27,300 migrants have been detected making unauthorised crossings of the English Channel so far this year, according to official figures.
The Right of the Tory party has insisted Britain must leave the European human rights treaty regardless of today’s outcome.
UK human rights laws need a major overhaul ‘whatever the outcome’ of the Government’s last-ditch legal appeal, the New Conservative group of backbenchers said.
Co-chairmen of the New Conservatives Miriam Cates and Danny Kruger said in a statement they remained committed to seeing Britain leave the European Convention on Human Rights.
‘We will continue to campaign for a new framework for asylum policy that fulfils our moral obligations to genuine refugees while restoring control of our borders,’ they said.
‘Whatever the outcome of tomorrow’s judgment on the Rwanda policy, we remain of the view that the UK should reform our domestic human rights and equalities laws and leave the ECHR.’
Who are the five Supreme Court judges who ruled against the Rwanda scheme?
Five Supreme Court justices decided the future of the Government’s Rwanda deportation policy –
Lord Reed – President of the Supreme Court
Lord Reed, 67, (below) has led the 12-justice court since January 2020.
Over the course of more than a decade at the UK’s top court, Lord Reed has been involved in some of its biggest cases, including the challenges over the prorogation of Parliament in 2019 and holding a Scottish independence referendum last year.
He previously served as a judge in Scotland and is also a member of a panel of ad hoc judges of the European Court of Human Rights.
In March last year, Lord Reed and deputy Supreme Court president Lord Hodge quit as non-permanent judges at Hong Kong’ Court of Final Appeal amid concerns about the erosion of human rights.
Lord Reed was educated at the universities of Edinburgh and Oxford before qualifying as an advocate in Scotland and a barrister in England and Wales.
He has previously challenged claims that judges were meddling in political decision-making in the wake of the Supreme Court’s ruling that former prime minister Boris Johnson’s decision to suspend Parliament in 2019 was unlawful.
He told the BBC in October 2020: ‘We don’t do politics, we do decide legal questions which can have political ramifications and they can be important political consequences, but the issue we decide is strictly legal issue.’
Lord Hodge – Deputy President of the Supreme Court
Lord Hodge, 70, (below) was appointed deputy president of the UK’s top court in January 2020.
The Scot, who succeeded compatriot Lord Reed when he became president, has served on the court since October 2013.
The judge was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996.
He has held a number of roles in Scotland, including the Scottish Judge in Exchequer Causes.
Lord Lloyd-Jones
Lord Lloyd-Jones, 71, (right) is on his second stint as a Supreme Court justice having originally served between October 2017 and January 2022.
After retiring from the role, he returned in August 2022 after an increase in the mandatory retirement age for judges from 70 to 75.
He was born and brought up in Pontypridd, South Wales, where his father was a school teacher, and was the court’s first justice to come from Wales.
A Welsh speaker, he was appointed to the High Court in 2005, and acted as adviser to the court in the Pinochet litigation before the House of Lords.
He has also served as a Lord Justice of Appeal and as chairman of the Law Commission.
Lord Briggs
The Supreme Court’s most senior English member, Lord Briggs, 68, (below) became a justice in October 2017.
He grew up around Portsmouth and Plymouth, following his naval officer father between ships, before spending his later childhood in West Sussex.
A keen sailor and the first lawyer in his family, he worked as a commercial lawyer before joining the High Court in 2006 where he oversaw the insolvency litigation following the collapse of the Lehman Brothers group from 2009 to 2013.
He joined the Court of Appeal in 2013 and was involved in civil justice reform, leading the Chancery Modernisation Review and Civil Courts Structure Review.
Lord Sales
Lord Sales, 61, (right) was the youngest of the court’s justices when he was appointed in January 2019.
He worked as a barrister and QC before his appointment to the High Court in 2008.
He was educated at the Royal Grammar School in Guildford, before studying law at both Cambridge and Oxford universities.
He was vice-president of the Investigatory Powers Tribunal, served as deputy chairman of the Boundary Commission for England and was appointed as a Lord Justice of Appeal.