Refoulement

The bedrock beneath yesterday's UK Supreme Court decision matters to us all

Yesterday, the UK's Supreme Court were unanimous in their ruling that the UK Government's plan to remove asylum-seekers to Rwanda is unlawful. Rishi Sunak, the Prime Minister, was quick to commit himself to trying again. It might be that he is successful in raising the number of safeguards and undertakings to allow a few planes to leave before the next UK election. As I have already written, this will just make an already expensive scheme more expensive - a sideshow in the real challenge of managing migration and protecting refugees.

Or is it a sideshow? It might be of course that the Rwanda scheme is meant to be an expensive symbolic act that sets a precedent and leads to the UK - and possibly a number of other European countries - off-shoring asylum claimants to many other countries (at less expensive 'bulk rates')? Put this way, it is very little to do with Rwanda at all - the logic being that if the off-shoring can be made to work in Rwanda, it can be made to work in many other places too. This is perhaps the prize that some European policy-makers seek - a permanent divorcing of international protection (the 'what') from the territory (the 'where').

Indeed there is nothing necessarily unlawful about this element of the approach. Most of the world's refugees are protected in poor countries, paid for by rich countries - either directly or via their contributions to UNHCR and other UN agencies. In Europe, many politicians feel (and with some evidence) that a significant number European voters want to help refugees but at arms' length. Chancellor Merkel's defied this logic when she opened Germany's borders to a million Syrian refugees in 2016, an act of political bravely which has gained her a number of human rights awards, but not (at least yet) the Nobel Peace Prize. Ukraine has been another exception. but the political trend remains one of (being seen to) cut immigration including asylum flows into Europe.

The essential concept behind all of this is that wherever the asylum-seekers are allowed to claim asylum they are safe - safe both in terms of their existence in that country but also safe from forcibly remove to any unsafe country, or even the very country from which they have claimed asylum. This is the princple of non-refoulement and also why so much was made of this issue in yesterday's Supreme Court decision. Essential to this safeguard is that the risk of refoulement is enough to prevent removal to a third country, not knowledge that this definitely will happen. We will hear much more about refoulement in the months and years to come.

There a unfortunately quite a few politicians who believe that somehow the UK will be able to brush this pesky legal concept to one side. Surely we can constrain the European Court of Human Rights or even leave the Strasbourg Convention altogether and join the company of Russia and Belarus? But such thinking does not appreciate just how fundamental a concept non-refoulement is.

The Supreme Court judges are clear on this point. As well as the 1951 United Nations Refugee Convention and the 1950 European Convention on Human Rights (ECHR), non-refoulement is central to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 and the United Nations International Covenant on Civil and Political Rights of 1966. Put crudely, commitments to protecting the right to life or preventing torture make sense only if you are not going to return people to places where you know this might happen to them. Being a "human rights respecting" country means nothing if you are in a symbiotic relationship with many "less good" ones - exporting your human rights abuses elsewhere. We only have to remember the US government's rendition programme following September 11 and surrounding the Gulf War, to know that torture by proxy is still torture. The onus is on the State wishing to export the asylum-claim that the third country in question is safe in every way, including safe from the risk of refoulement.

The UK judges put it succinctly when concluding:

"The principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law."

So how the expensive Rwanda experiment is concluded will have ramifications beyond the UK-Rwanda bilateral agreement, or even the UK's asylum system, but international law and human rights more generally. Watch this space.