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All The Hurdles Rishi Sunak's Rwanda Plan Must Still Jump

Rishi Sunak with a border control officer (Alamy)

5 min read

Rishi Sunak’s Safety of Rwanda (Asylum and Immigration) Bill cleared a difficult House of Commons stage this week, but the legislation still faces a number of hurdles before it can be used to enact Government plans to deport illegal migrants to Rwanda.

The Prime Minister avoided a rebellion from his backbenches on Wednesday evening as the revised legislation, published in December, completed its third reading in the House of Commons. 

However, it now must clear the House of Lords, and there is also still the possibility of legal challenges before Sunak can achieve his ultimate goal of removing any migrants to Rwanda. 

Here is a rundown of the remaining hurdles the Rwanda legislation could face, before flights may begin. 

The House of Lords

The next challenge for the Safety of Rwanda (Asylum and Immigration) Bill will be clearing the House of Lords. 

It is widely expected that the Bill will face opposition from peers, as the earlier iteration of the plans did last year. 

On Thursday morning, Sunak sought to warn the Lords against rejecting the legislation, and said that the only question remaining is whether opposition in "the appointed House of Lords try and frustrate the will of the people as expressed by the elected House". 

Shami Chakrabarti, a Labour peer and the former shadow attorney general, told PoliticsHome that there are “many people” in the Lords who “really care about the rule of law” and peers will bear that in mind when they are debating and amending the Rwanda bill. 

“It’s particularly important that the unelected but independent second chamber stands up for the rule of law," she said. 

"Across the parties and the groupings, in the House of Lords [...] there are many people who really care about the rule of law.”

The three points that peers will be keen to defend, she said, are the domestic rule of law, the international rule of law, and ensuring the protection of the Good Friday Agreement. 

“These are things that the House of Lords really cares about,” she added. 

Another Labour peer told PoliticsHome they expected their position to be "amend rather than block" – the usual approach taken by Labour with any legislation in the Lords.

Former Tory immigration minister, Timothy Kirkhope, said he is “dead keen to see immigration controls working” and “dead keen to stop people getting into boats and going across the Channel”, but that he will not back anything that seeks to break international law or affects the UK’s international standing. 

He told PoliticsHome he is “quite clear that there are a number of tools in the tool box that haven’t been implemented and will cost less money” that could help tackle crossings. 

Pointing to the note on the front of the Bill from Home Secretary James Cleverly stating that he cannot guarantee that the “provisions” of the legislation are “compatible with the [European] Convention rights”, Kirkhope added that changes would be needed before he can see the House of Lords “going along with it”. 

After the Lords have made any amendments to the Bill, it will return to the Commons where they can be further changed or stripped out before returning to the second House in the process known as ping-pong. 

The Illegal Migration Act – which contained the first details of the Rwanda plans – ping-ponged between the upper and lower chambers last year, and it seems likely that something similar could happen this time around. 

Ahead of the final Commons votes on Wednesday evening, a rebel source indicated that any attempt by peers to weaken the legislation could be met with attempts at reciprocal toughening from their cohort of MPs, which would inevitably lead to delays. 

Legal challenges 

One of the main concerns of the backbench Tory rebels was that this legislation still left open the possibility of legal challenges, and the courts could become clogged up with individual cases opposing being sent to Rwanda. 

Clause 4 of the Bill gives scope for people to launch legal challenges based on their own specific circumstances, should they believe that as an individual they could come to harm in Rwanda. This is viewed by Government and moderate Tories as essential for complying with international law. 

Robert Jenrick quit as immigration minister last month when the legislation was confirmed, and later wrote in the Telegraph that the plans will “place the courts under immense pressure” and mean “backlogs will likely build” in the system". 

When the legislation was published in December, the chair of the Bar Council, Nick Vineall KC said that the Bill is “likely to give rise to legal challenges”. 

“If the Government had wished to avoid legal challenges and had also had a high degree of confidence that Rwanda, in fact, is – and will continue to be – a safe place, it seems unlikely that it would have chosen to introduce a Bill in this form,” he added.

Jonathan Jones, the former head of the government legal service, told PoliticsHome that he thinks the Lords will attempt to amend the Bill, and there are “bound” to be legal challenges, but it is difficult to say for certain whether the Bill will be a success or a failure. 

He explained that there are lots of unknown “ifs”, even when the Bill passes, such as how long the British and Rwandan government take to get practicalities lined up, and the possibility of legal challenges. 

"There is at least a possibility that in the end at least some challenges will fail because the test is so narrow, the courts will give effect to the Act, the treaty will be seen to have done its job, and the government will get its act together and get flights over," he explained.

“But I also think it’s perfectly possible that this will continue to be snarled up in the courts, that the courts will give an expansive interpretation to Clause 4, flights will be stopped, and the whole thing will get bogged down so nothing in practice will happen. 

“You can see where the risks lie. But it’s impossible to be certain what will happen. Just toss a coin!”

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