The government’s plan to send some asylum seekers to Rwanda is unlawful, the Supreme Court has ruled.

Responding to the judgement, Rishi Sunak said: “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.”

So what was the policy, why did the UK’s top court rule against it – and what happens now?

What was the government’s Rwanda asylum policy?

The “asylum partnership arrangement” between the UK and Rwanda was struck in April 2022 under Boris Johnson’s premiership.

The plan would have seen some people who were seeking asylum in the UK sent to the east African nation to have their claims assessed, rather than going through the process in Britain.

(For more details on the differences between asylum seekers, refugees and migrants, see our 2021 article.)

The Rwandan authorities would then decide whether the person was eligible for asylum, in which case they would be resettled there. There would be no option to return to the UK.

The idea was to deter people from trying to reach the UK by “irregular” routes – for example, by crossing the Channel on small boats.

The thinking went that if it became known among prospective asylum seekers that there was a possibility of being sent to Rwanda, with no chance of resettling in the UK, they would not want to make the journey.

Has anyone been sent to Rwanda to have their asylum claim processed?

Despite the deal with Rwanda being signed over eighteen months ago, no one has actually been sent there to have their claim decided.

The first flight was scheduled to take seven people seeking asylum in the UK to Rwanda in June 2022, but was blocked by a last-minute ruling from the European Court of Human Rights, which said people should not be sent until the lawfulness of the policy had been examined by UK and European courts.

Why does the Supreme Court say the Rwanda policy is unlawful?

In the latest case, the UK judges ruled unanimously that the Rwanda policy was unlawful because “there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement”.

Under international law, countries are obliged to follow the “principle of non-refoulement”, which the judges explain means “not return[ing] refugees to another country where their life or freedom would be threatened”.

The judges felt that there was a strong chance that people sent to Rwanda would have their asylum claims rejected and they would be sent back to their country of origin, where they would be in danger.

They reached this conclusion based on evidence from the UN refugee agency, which shows Rwandan authorities rejected 100 per cent of asylum claims from Afghanistan, Yemen and Syria between 2020 and 2022.

The judges describe this as “a surprisingly high rejection rate for claimants from known conflict zones”. By contrast, they cited data from the UK Home Office showing that 74 per cent, 98 per cent and 40 per cent of applicants from those countries, respectively, were granted asylum in the UK over the same period.

So it seems asylum seekers in Rwanda were much more likely to be sent back to their dangerous country of origin than those having claims decided in the UK.

However, the UK government argued during the court case that even though Rwanda has a history of refoulement, it had promised to improve its processes for the sake of the new arrangement.

But while the Supreme Court agreed that the Rwandan government might sincerely intend to change, the judges felt its arrangements with Israel in a similar scheme did not suggest this was realistic.

How did Rishi Sunak respond to the Rwanda ruling?

Within hours of the Supreme Court ruling, Rishi Sunak announced that the government would finalise a new treaty with Rwanda to “provide a guarantee in law that those who are relocated from the UK to Rwanda will be protected against removal from Rwanda”.

That seems to be a reference to the Supreme Court’s concerns that Rwanda would return unsuccessful asylum seekers to their dangerous countries of origin (refoulement).

The Prime Minister told journalists that the government would bring in “emergency legislation” to “confirm Rwanda is safe”.

Though critics of the revised plan have suggested that this will not be enough to prevent further legal and parliamentary challenges.

Any emergency legislation would likely be put to the House of Lords – where there’s no guarantee it would pass.

And even if it did, there’s still a chance of more court cases if the concerns raised by the Supreme Court’s latest ruling are not addressed in full.

Lord Sumption, the former head of the UK Supreme Court, told the BBC that the “problems identified in the Supreme Court judgement are too fundamental to be cured quickly, and possibly too fundamental to be cured at all”.

He said that the latest ruling found that “Rwanda is institutionally and culturally incapable as matters presently stand of operating a proper asylum review system”. And, the former chief justice added, rewriting a treaty as Rishi Sunak now plans to do “won’t make any difference” because “Rwanda doesn’t have the institutional strength to be able to observe its own treaty obligations”.

The new home secretary James Cleverly told the BBC this morning that he “disagree[s] with that interpretation” because the government has been “working with Rwandans to beef up, to strengthen, to professionalise and enhance their professional institutions” over the last year. He says that the Supreme Court was “only able to look at the facts as they were presented to the Appeal Court, which was 15 months ago” – suggesting that the situation in Rwanda has improved in the intervening time.

The government, he said, will “go through the points that [the Supreme Court judges] set out and we will address them, each and every one to make sure we are in conformity with international law”.

What is the European Convention on Human Rights (ECHR)?

Asked about the possibility of legal challenges at last night’s press conference, prime minister Rishi Sunak alluded to another potential problem – saying he will not allow “a foreign court to block our ability to get these flights off”. This seems to be a reference to the European Court of Human Rights.

One of the pieces of international law that the UK Supreme Court judges referenced in their ruling was the European Convention on Human Rights (ECHR). It’s an international treaty that the UK was the first to ratify in 1951.

Every country in Europe, except Russia and Belarus, is a member of the ECHR. Though some nations, including the UK, have chosen not to adopt some of its provisions.

The treaty is upheld by the European Court of Human Rights, which is based in Strasbourg. Though in the UK, appeals can be brought under a piece of British law – the 1998 Human Rights Act – which put most of the ECHR onto the domestic statute books.

Being part of the ECHR is not the same as being a member of the European Union (EU) and leaving the EU, as the UK did in 2020, did not affect our membership of it.

Though some of those who campaigned for Britain to leave the EU are also keen for us to leave the ECHR, arguing that it constrains UK lawmakers and governments. Though, as the UK in a Changing Europe think tank notes, “no court (either in the UK or in Strasbourg) can strike down an Act of Parliament.”

Mr Sunak said after the latest ruling that if the government “face[s] future challenges with the European Court of Human Rights, then we will need to revisit those relationships”.

Though critics of the new plan say the role of the ECHR is overstated. Lord Sumption told the BBC that “the real barriers are from domestic law, and if we were to withdraw from the human rights convention tomorrow morning […] the government would be in exactly the same difficulty”.