Leaving the ECHR now would be unwise
In a landmark decision just after 10am on November 15, the United Kingdom Supreme Court delivered its verdict on the government’s plan to send refugees to Rwanda.
This ruling, unanimous and based on “evidence and legal principles”, reaffirms the important principle of non-refoulement – a cornerstone of international refugee law that prohibits the return of refugees to places where their lives or freedoms could be threatened.
At the heart of the court’s decision was the critical question: Are there substantial grounds to believe that asylum seekers sent to Rwanda would face a risk of refoulement? The answer, aligned with the earlier judgment of the Court of Appeal, was in the affirmative.
The court acknowledged that Rwanda might well, in the future, make the necessary changes to mitigate these risks. However, as of now, these are not apparent.
With so many other tools in the box, the government’s attachment to the Rwanda policy is surprising
Evidence from the United Nations High Commissioner for Refugees sought to demonstrate the deficiencies in the Rwandan asylum system, and this apparently was a key element in the Supreme Court reaching its decision. Despite the UK’s agreement with Rwanda, it was argued that Rwanda was sending asylum seekers to the very countries from which they had fled, where their life or freedom might be threatened. This, of course, is a direct contravention of the principle of non-refoulement.
In the wake of this ruling, some of my Conservative colleagues are arguing for the UK to withdraw from the European Convention on Human Rights (ECHR). However, on close examination of the judgment, this would be most unwise. The Supreme Court clarified that it is not just the ECHR that prevents the government from deporting refugees, but also other British laws. The negative repercussions of leaving the ECHR, including on the Good Friday Agreement and our membership of the Council of Europe, cannot be overlooked.
The Supreme Court underlined the impact on the new Illegal Migration Act. This legislation now faces significant hurdles.
I believe that it would be wise for the government, rather than continue with this policy, to move towards more collaborative and comprehensive solutions, of which there are a number.
This must include shifting resources to faster and stricter determinations of asylum applications, faster and more effective removals in cases where the criteria of the 1951 UN Refugee Convention are not met, and renewed efforts both with the European Union and in appropriate pressure on states who appear reluctant at present to take back filed asylum applicants.
We all want to stop the boats and I congratulate the government on its recent initiatives with the French government and also in tackling illegal entrants from Albania. We are making progress as the Prime Minister has said, but that needs to be accelerated. Frankly, tying ourselves to a Rwanda policy that now has no legal support does not seem to be the right approach.
However, if government ministers are intent on getting the Rwanda plan completed they can, of course, amend UK legislation to try to satisfy the Supreme Court’s concerns. But in doing so, they risk a lot of political and international goodwill. So why are they doing this? With so many other tools in the box, the government’s attachment to the Rwanda policy is surprising.
If we go down the route I suggest here, it will achieve the outcome the government states it wants without the ongoing complications thrown up by the Rwanda policy. It will be a win-win situation in tackling illegality and the serious crime of people smuggling, and also provide the British people with confidence that this government keeps its word and protects our borders.
Lord Kirkhope, Conservative peer and former immigration minister
Get the inside track on what MPs and Peers are talking about. Sign up to The House's morning email for the latest insight and reaction from Parliamentarians, policy-makers and organisations.