On Wednesday 15 November 2023, the Supreme Court ruled that the UK Government's Rwanda plan was unlawful. In this article, we examine what happened, why it happened, and how to set it right.
WHAT IS THE RWANDA PLAN?
The UK Government wants to send asylum seekers to Rwanda, where their asylum claims would be processed. If found to be genuine refugees, then they would stay in Rwanda and there would be no option to return to the UK.
If they were not considered genuine then they would be sent back to their original homelands.
The idea is that it would deter the large numbers of people seeking asylum in the UK, and it would relieve the burden of looking after such people in the UK.
An "asylum seeker" or "asylum applicant" is someone who has claimed "refugee status" within the meaning of Article 1 of the United Nations Convention relating to the Status of Refugees (hereafter referred to as the Refugee Convention).
A "refugee" is an asylum seeker who has been recognised as a refugee and granted asylum.
WHAT is the UN CONVENTION relating to the STATUS of REFUGEES?
It is an international document which creates obligations upon the UK Government with regard to the UK's Law of Entry.
It was signed by 28 countries, including the UK, in Geneva on 28 July 1951, and was amended by The New York Protocol of 31 January 1967.
The Protocol removed from the definition of "refugee" the Convention's original words which had defined a refugee on the basis of "events occurring before 1 January 1951". Note that the Refugee Convention was originally created to deal with the upheaval of peoples after WW2!
The Refugee Convention establishes the right to claim "refugee status", and consequently to request "asylum" – but, importantly, not to be granted it.
Refugee status is defined in Art 1(A)(2) as someone who has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".
Is the Refugee Convention Binding upon British Courts?
The UN is seeking to make States respect specific obligations, but these obligations are not binding upon British courts.
That is, no individual can petition a British court, or even a UN court, claiming that he or she has suffered as a result of a breach of a Convention obligation.
The Refugee Convention is "binding" upon its signatories only in the sense that its signatories agree to be bound. However, if a State acted contrary to its obligations under this Convention, it could no longer remain a signatory.
Does the Refugee Convention require Asylum Seekers to be accepted as Refugees?
No, it does not oblige a State to grant asylum.
Rather it obliges a State not to return – "refoul" – someone to "persecution", as per Art 33(1).
This has been called "the obligation which is central to the whole scheme of refugee protection". (1)
It falls to the host State to determine whether the person has a "well-founded fear of being persecuted" – a legal process which can be as short, or as convoluted, as the State chooses.
This legal process could even be carried out at an airport or other port of entry, without the asylum seeker even being allowed out of the arrival gate!
Could the UK leave the Refugee Convention?
Article 44(2) states that any contracting State can leave with one year's notice. However, to leave would be unprecedented and the UN would oppose such a move. The UN is concerned that it would set the wrong impression for some of the developing world signatories who receive large numbers of "asylum seekers".
THINGS WE CAN DO
1. Establish a British "Qualification for UK Asylum Act"
It is theoretically possible for the UK to stay a member of the Refugee Convention, but to create a new British law which accepts the "right to claim refugee status" as enshrined in the Refugee Convention, but which adds several new restrictive clauses to this "right" as it applies in the UK.
After all, the doctrine of parliamentary supremacy makes it clear that Parliament can legislate its way around international obligations. In a conflict between British statute law created by Parliament, and the Refugee Convention, then the doctrine of parliamentary sovereignty ensures that British statute law will prevail, as per the case law Pepushi. (2)
For example, at present, the only people to whom the Refugee Convention does not apply are listed in its Article 1(F):
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
A more restrictive British "Qualification for UK Asylum Act" could add several new categories of automatic exemptions.
(d) He is an economic migrant using the asylum channel as a means of entry;
(e) He is arriving from a country which the UK has designated safe;
(f) He is arriving in the UK by boat across the English Channel, or by stowing away in a vehicle through the Channel Tunnel.
This might trouble the UN, and it might lead to a stand-off, and it might be claimed to be incompatible with continued membership of the Refugee Convention, but it is an initial move to make by any Government which is serious about addressing the matter! And even if it is considered incompatible with continued membership of the Refugee Convention, a serious UK Government could press on anyway.
Such a new Act will also include "notwithstanding clauses" to dis-apply certain elements of previous law, as we explain later in this article.
2. Abolish Legal Aid for all Immigration and Asylum Cases
"Immigration and Asylum Law" is now a massive legal industry paid for by the British Taxpayer! It must be defunded.
3. Abolish the Right of Appeal for Asylum Seekers
It is the Appeals process which keeps the system in total gridlock.
The right of in-country appeal is not required under the Refugee Convention but was first introduced into the UK by the Asylum and Immigration Appeals Act 1993, and is presently found in the Nationality and Immigration Act 2002, secs 82-84.
The UK could abolish the right for asylum seekers to appeal against a refusal of an application for asylum. That's an easy way to speed up the process!
WHAT is the EUROPEAN CONVENTION on HUMAN RIGHTS
The European Convention on Human Rights (ECHR) is an international treaty which Britain signed up to in 1951 and which came into force in 1953.
It is not part of the European Union legal structure. Rather, it is a separate Convention in and of itself. Leaving the EU did not affect our legal relationship with it – which is that, so long as we remain signed-up to it, then we have to obey the laws it sets for us.
The ECHR is adjudicated (ruled-on) by the European Court of Human Rights in Strasbourg, with judgments legally binding on the Member States concerned.
Prior to 1998, if an individual wanted to make a "rights" claim under the ECHR, then he or she had to do so directly at the Court in Strasbourg.
In 1998, the ECHR was integrated directly into British law, when it was written entirely into the Human Rights Act (HRA).
That means that people can claim the rights detailed in the ECHR here in the UK courts, without having to go to Strasbourg.
However, if the Supreme Court in the UK finds that your right has not been denied, then you still have a right of appeal to the Court in Strasbourg.
There are two articles of the ECHR – and the HRA – which relate to Immigration, Asylum and Deportation. These are:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Everyone has the right to respect for his private and family life, his home and his correspondence.
Claims to stay in the UK are always made around these 2 articles.
Both of these articles are interpreted very broadly.
Article 3, for example, has been interpreted by the European Court of Human Rights as impliedly – meaning it doesn't say so in as many words – preventing the extradition of people to countries where they risk such harm, as per the judgement in Soering. (3)
The Court also confirmed that deportation may amount to a violation of Article 3, as per Cruz Varas. (4)
It has also ruled that even if an individual is a threat to national security, this cannot justify returning him or her to a country where there is a risk of torture, as per Chahal. (5)
ALLEGED DANGER of "REFOULEMENT" in RWANDA
"Refoulement" means that if you were to send the asylum applicant to a third party country (such as Rwanda) which then turns down their application and sends them back to the original country from which they are genuinely fleeing persecution, and thereby may be "subjected to torture or to inhuman or degrading treatment or punishment" then this would also be against the ECHR.
This would be the "refoulement" forbidden by Article 33(1) of the UN Refugee Convention, as mentioned above.
To get over this objection, the UK Parliament has a list of "safe" countries where such "refoulement" is not considered to be a danger. These have been written into British law, and appear in Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
Schedule 3 lists the safe countries and says, in relation to the European Convention on Human Rights:
Unless the contrary is shown by the claimant to be the case in their particular circumstances, a State to which this Part applies is to be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place-
(a) to which a person can be removed without their Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) being contravened, and
(b) from which a person will not be sent to another State in contravention of their Convention rights.
This means that these countries are deemed safe to send asylum seekers to, without the concern that such people will risk "refoulement"; without the concern that they will be sent back to a land where they genuinely have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion", as per Article 1 of the UN Refugee Convention.
And guess what? Rwanda does not appear on that official "safe list".
This seems like a glaring loophole! Indeed, it seems absurd that the British Government came up with the Rwanda plan but did not think to add the word "Rwanda" to the official "safe list"?
THE SUPREME COURT MADE A POLITICAL JUDGMENT
Therefore, when the matter went to the Supreme Court, it meant that before the judges could make the legal decision, they had to make the political decision about whether Rwanda was "safe" or not.
If "Rwanda" had already appeared in the safe list, in the above legislation, then the legal decision would already have been made for them. They would have been obliged to follow "the black letter of the law".
Since it did not appear, they were required to make a political decision, which is not really theirs to make!
It is not their job to make a political judgment on whether they think Rwanda has a suitable asylum appeals process!
WHAT SHOULD HAPPEN NOW
1. Clear the Legal Path so the Physical Action can Start
As we see every day, unless the legal pathway is in place, then the necessary physical action cannot proceed.
2. Accept that this is an Emergency
The UK is being invaded. There is no other way of describing what is happening across the English Channel. It is an emergency and emergency laws can be brought in literally overnight if the Government is serious. We saw that in 2020! There is no need to keep bouncing laws back and forth between Commons and Lords when there is an emergency! We need Emergency Legislation.
3. Rwanda Plan
Whatever one may think of the Rwanda plan, if the Government is serious, then it will have to immediately add the word "Rwanda" to Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. That's fairly simple, but has hitherto, proven to be a great challenge!
4. Insert "Notwithstanding Clauses" which Dis-Apply elements of previous Law
After Suella Braverman was fired by Rishi Sunak, she wrote a letter to him on 14-11-23 complaining about various matters. The first page is below.
Note the second point where she says:
Include specific 'notwithstanding clauses' into new legislation to stop the boats, i.e. exclude the operation of the European Convention on Human Rights, Human Rights Act and other international law that had thus far obstructed progress on this issue;
What is she meaning here?
It is a well-known procedure in the creation of British law at Parliament, that if a previous law has a clause which is likely to conflict with the policy you are now trying to effect, then all that needs to be done is to introduce something like the following phrase in the new law
"The above will occur notwithstanding [the clause in the previous law that you want to over-ride for the purposes of this particular policy]."
That is, you dis-apply an element of a previous law in order to achieve a particular end in this particular instance.
Therefore, if the UK Parliament wants to automatically send back the people who arrive across the English Channel in small boats, then it could create a new law which says something like:
"Immediate return of [such specified people, in such specified instances] will proceed notwithstanding Article 3 and Article 8 of the ECHR, and Article 3 and 8 of the HRA."
Dis-application of a previous law is a perfectly acceptable thing to do in new law, and the Courts are bound to give effect to the new law. The Courts can't disagree, because that is now The Law.
5. So Why Don't we Do This?
People will ask, "That sounds easy enough. Let's dis-apply Article 3 and Article 8 of the ECHR and HRA when it relates to immigration and asylum law?"
Unfortunately, the problem is that this would be incompatible with continued membership of the ECHR.
Both Article 3 and Article 8 are "qualified rights" which mean that Member States who are signed-up to the ECHR cannot dis-apply these clauses in their own domestic law without rejecting the entire ECHR.
Therefore, to do this would mean that we would be effectively leaving the ECHR.
That's the big sticking point for our politicians!
But it needs to be done before anything else can be done.
6. Dis-Apply Elements of the HRA in Certain Instances
Furthermore, if we did that – and we should – then we would have to re-visit the Human Rights Act which, as we mention above, has fully integrated all the words of the ECHR into British law.
Arguably, most of the words of the previous ECHR could actually be left in place!
Not all of the words are bad. Indeed, a re-vamped HRA could go further and really strengthen the rights of freedom of speech and freedom of assembly.
However, the issues relating to Article 3 and Article 8 – as they affect immigration and asylum and deportation – will need to be addressed in order to facilitate less immigration, deliver effective deportation, and secure our borders.
This could be done in a new Law, such as a "Qualification for UK Asylum Act", which would incorporate "notwithstanding clauses" relating to the HRA, as appropriate.
All that is eminently possible and do-able, but only once we are out of the ECHR.
So long as we are a member of the ECHR, then any person can take an appeal to the ECHR.
For example, even if the Government had won the Rwanda decision at the Supreme Court, then the claimants could have taken it all the way up to the ECHR, which would have been another year or so of waiting for a decision.
SO TO RECAP – WHAT NEEDS to be DONE is BOTH LEGAL and POLITICAL
1. Leave the ECHR.
2. Re-write elements of the UK's Human Rights Act where necessary.
It is not actually necessary to "abolish" the UK's HRA – indeed it could be strengthened to ensure stronger free speech, and freedom of assembly, rights.
But we do need to leave the European Convention on Human Rights because it prohibits us dis-applying the ECHR's Articles 3 and 8 in certain circumstances, which are necessary to do in order to stop fraudulent asylum claims.
3. Create a new law "Qualification for UK Asylum Act" which will, where necessary, dis-apply the similar Articles 3 and 8 which exist in the UK's HRA in certain specific instances of immigration, asylum, and deportation.
It shouldn't really be necessary to have to leave the UN Refugee Convention.
All we need to do is adjust elements of it in our domestic law, in order to reflect our own unique British circumstances. For example, we could extend the definitions of those who are not eligible to be considered for asylum (such as economic migrants).
This may, or may not, provoke a conflict with the United Nations regarding membership of the UN Refugee Convention, but either way, a serious UK Government must press on!
4. Abolish Legal Aid for all Immigration and Asylum Cases
The massive and lucrative legal industry which encourages, facilitates, services, maintains and has a vested financial interest in perpetuating this endless invasion at British Taxpayers' expense, must be defunded.
5. Abolish the Right of Appeal for Asylum Cases
As mentioned above, the right of appeal is not required under the UN Refugee Convention. It was introduced into the UK by the Asylum and Immigration Appeals Act 1993, and is presently found in the Nationality and Immigration Act 2002, secs 82-84.
Once you have the legal ability to do things then you can build the physical ability to do things, which might include:
6. Disband the entire Home Office immigration department which is failing miserably to deal with this, and contract it out to an arms-length, private sector organisation which does it for financial incentive. (6)
7. Build up the Border Force, stop boats in the Channel, physically return them to France etc.
MAKE NO MISTAKE – THIS IS A REVOLUTION OF THE MIND
To call into question, let alone up-end, the UN Refugee Convention and European Convention on Human Rights is a direct attack on the globalist, internationalist order which was established after WW2 in the West.
Both of these Conventions are central to the post-WW2 international settlement.
They are of a piece with the entire post-WW2 settlement under which the modern West is constructed.
To throw them off will be a revolutionary act which may not occur until other societal changes converge to overturn that "settlement".
That's why some people get so shocked and angry.
It is equivalent to saying – "the circumstances in which the modern world was created after WW2 no longer apply. We must now forge a new direction."
But the good news is that more and more people are questioning how we got into this situation, and why our world is the way it is.
So we seem to be moving in this direction!
1. Gina Clayton, Textbook on Immigration and Asylum Law, (Oxford: Oxford University Press, 2006) at 389.
2. R (on the application of Pepushi) v Crown Prosecution Service (2004), EWHC 798 (Admin), and Clayton op cit at 394.
3. Soering v UK , 11 EHRR 439.
4. Cruz Varas v Sweden , 14 EHRR 1.
5. Chahal v UK , 23 EHRR, 413.
6. For how useless the Home Office is see this article: Anonymous Comment, "Why my Civil Service colleagues are celebrating the Rwanda ruling" The Daily Telegraph, online 15-11-23.
Alistair McConnachie has a degree in Scots Law, and wrote his dissertation on the UK Law of Entry. He adapted it politically into the booklet How Britain Lost Control of its Borders (2009) available at our Shop here.
ANCHOR A TANKER TO PROCESS SMALL BOATS
Don't let them set foot on dry land, and then see the flow dry up, said Alistair McConnachie on our "Good Evening Britain" show, Wednesday 29 Nov 2023.
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