The Rwanda plan might be lawful, but it won’t work

Not a good day for human rights, and Britain’s slide away from the obligations of international conventions and simple decency towards those fleeing war and persecution.

The High Court has decided that the Rwanda policy is lawful, though the treatment of some individuals was certainly was not – ministers failed to examine their cases properly. There is some hope that an appeal on the main ruling will be granted in January. And individual cases may still go to the European Court of Human Rights in Strasbourg.

Still, the outlook is poor. Even if the various appeals eventually succeed, before long the Sunak government will pass laws that, in effect, abolish the general right to asylum in the UK that has been in place for decades and (albeit intermittently) centuries.

The enormity of what is happening now is perhaps still not fully understood. The new laws on asylum to be introduced next year will create an entirely new framework for human rights and claiming refugee status. A limited number of “legal and safe” safe routes and schemes will be established by the UK government. They will be arranged in concert with the United Nations High Commission for Refugees. The numbers allowed in under the humanitarian visa schemes will be subject to a quota determined by official estimates of “capacity”. This is basically using the current Ukraine, Hong Kong and Afghanistan schemes as a template.

What is new is that soon anyone who is outside such limited asylum schemes will not be granted asylum under any circumstances, no matter the validity of the claim. Instead, they will be returned to their home country, if deemed safe, or a safe third country – possibly Rwanda or some other nation where the UK reaches an agreement. Even if their claim is then approved, they cannot come to the UK.

What the High Court has done, understandably in legal terms, is to support the law where it is so explicit and tightly drawn and where the will of parliament is abundantly clear. There is a balance to be reached with human rights law, both domestic and under international obligations. If parliament keeps passing ever more aggressive anti-refugee laws, then the courts find it difficult to deny our sovereign parliament its constitutional rights.

Unlike the unlawful prorogagation of parliament in 2019, struck down by the Supreme Court, this is not about one branch of the British state acting contrary to the constitution. The mood seems to be always from judicial "activism". It is a simple matter of law. Eventually parliament must prevail, at least in a British courtroom.

Of course, none of this will make any difference to the refugees crossing the channel. There are far too many to be forcibly deported to Rwanda and no other countries have come forward to expand the capacity of the scheme. The Rwanda scheme has already involved an upfront payment of £120m and at the moment is able to house around 100 people at once and process the claims of up to 500 occupants per year. That’s about a few days’ worth of arrivals via small boats (the record for one day being about 700 people). It is absurdly costly and cumbersome, as well as cruel.

It is sometimes argued that the Rwanda scheme, the ban on working and the squalid, disease-ridden, hopeless conditions in processing centres act as a deterrent to the people in the dinghies. If so, then there’s not much sign of it. They are willing to put their lives on the line, and still will be after the right to asylum becomes limited by law. If the risk of drowning in the icy waters of the English Channel isn’t enough to deter them, then nothing is.

The only difference will be that refugees and economic migrants alike will be given an incentive to evade the authorities and melt into the countryside once they land on the beaches. They will thus take more risks. There will be more fatalities. And still desperate people will come.