OPINION: Will UK’s Rwanda policy pass or fail?

The most recent proposals made by UK ministers to get their high-profile Rwanda program off the ground, according to attorneys, are unlikely to be successful in overcoming the legal barriers that they were unable to overcome in the supreme court on Wednesday.

After the five judges rejected the government’s plans to deport those people who are seeking asylum in the UK to the east African country in a unanimous decision, Rishi Sunak stated that he would ensure the flights could go ahead by legislating that Rwanda was safe. This came after the judges rejected the government’s intentions to deport people seeking refuge in the UK to the country.

The prime minister of the United Kingdom further stated that he would form a new treaty with Rwanda to guarantee that those who were deported there from the United Kingdom would not be returned to their home countries. This procedure is known as refoulement, and the possibility of it occurring was the primary factor that led to the dismissal of the government’s appeal by the Supreme Court.

However, legal experts have stated that making such adjustments would not accomplish Sunak’s goal of putting an end to what he referred to as the “merry-go-round” in the legal system and would most likely continue to run afoul of the courts.

The judges of the Supreme Court, “started by saying non-refoulement is a really fundamental concept, and it’s contained in lots of different sources of law.” If the government passes a law stating that two plus two equals five, however, that does not make it so that two plus two actually does equal five. Even if they pass a legislation stating that Rwanda is secure, this will not change the fact that Rwanda is not protected under either international law or local law.

He referenced a reference made by the Supreme Court to a similar treaty between Rwanda and Israel, in which the Supreme Court stated that there had been “a failure to abide by assurances (including an assurance of non-refoulement)”. He highlighted this instance.

Wagner stated that “you can’t change cultures by agreements,” and then went on to say that the court stated that it didn’t trust Rwanda to honor the promise it had made. That sums up the situation, doesn’t it? They have to change, and I don’t see how they can change those realities without also changing the reality on the ground. They have no choice but to change. Legislation and treaties won’t be able to change such facts; neither will legislation.

The European convention on human rights has been the target of criticism from many members of the right wing of the Conservative party; nevertheless, legal experts have emphasized that this convention is only one of many treaties that bind the United Kingdom to the concept of non-refoulement.

A human rights barrister working at Cloisters chambers named Schona Jolly KC made the following statement: “The government is not engaging with that detail in its own magical thinking.” The facts as they exist on the ground are significant, and our own supreme court made its decision on the basis of those facts. Decree legislation will not miraculously change such facts, nor will it alter the international legal norms or principles that are applicable.

Her statements were echoed by Alexander Horne, a former parliamentary lawyer, who stated that changing “our domestic law is not going to cure your breach of international laws and the supreme court was very clear that you have the refugee convention, European convention on human rights, as well as the United Nations convention against torture – there’s a whole gamut of these things” (Changing “our domestic law is not going to cure your breach of international laws”).

Even if changes in the country’s own legal system caused the Supreme Court to believe it was required to decide in favor of the government, it is highly doubtful that the European Court of Human Rights would do the same, according to attorneys.

If the United Kingdom were to defy international law and ignore the Strasbourg court, as the deputy chair of the Conservative Party, Lee Anderson, has said it should do with the supreme court, “that would leave us with a pretty unhappy conflict with that court,” said Horne. “That would leave us with a pretty unhappy conflict with that court.”

To put it another way, there is skepticism regarding the government’s ability to pass contentious legislation through parliament and the courts before the next election. This raises the question of whether or not the government will even have the time to do it.

Concerns have also been voiced by attorneys on the implications that the government’s approach may have for the constitution. However, according to the Bar Council, overturning a court’s finding of fact “would raise profound and important questions about the respective role of the courts and parliament in countries that subscribe to the rule of law”.

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