This week sees Round Three of the government’s court battle over its Rwanda policy. The government is confident that it can overturn its defeat in the Court of Appeal – though it had been equally confident of winning that case too, where it lost on a 2:1 verdict. Once this legal hold-up is out of the way, they argue, the Rwanda scheme can get to work in stopping the boats, as pledged by the Prime Minister.
Keir Starmer confirmed on Sunday that Labour will scrap the Rwanda scheme, regardless of the court’s decision. In response, government ministers have asked whether Labour would still drop the Rwanda plans, even if the scheme were to quickly prove an effective deterrent.
It is highly unlikely that Starmer will face that dilemma. At the level of policy, the Rwanda scheme is largely a sideshow. Whatever the Supreme Court judges decide, the fate of the Rwanda scheme is primarily a distraction that will have little or no impact on how the UK responds to irregular arrivals across the Channel.
How many people could be sent to Rwanda? Government ministers prefer to avoid answering this question, falling back on the formula that the scheme is formally “uncapped”. Rwanda’s expectation was that it could take up to 300 asylum seekers a year, across the four years of this deal.
With 30,000 people having crossed the Channel since March, winning this court case might give the government a realistic option for 1% of those who have arrived here. An excessive focus on Rwanda means that the bigger question – what plans it has for the 99% who cannot be removed anywhere – is being overlooked.
Yet new briefings to the Times newspaper assert that the Home Office hopes to deport as many as 4,000 people to Africa before the General Election – even if the first flights do not leave until February. It hopes, too, that sending the first flight or two to Rwanda might provide such a powerful deterrent effect that there may be no need to deport thousands of people at all.
These projections lack all credibility. They sound like a more than ten-fold exaggeration of what could be possible, even if almost everything about the scheme went to plan. Even getting the number up to 300 could be challenging. The Rwandan asylum system has been tiny, making between 36 and 306 decisions a year. A major reason for the Court of Appeal verdict that Rwanda was not a safe third country was the absence of trained decision-makers in Rwanda. If the government does secure the right to proceed, it will depend on a case-by-case process in the UK and Rwanda that will have nothing like the pace that these briefings envisage.
The idea that the boats might simply stop, once asylum seekers themselves or the people smugglers exploiting them see one plane take off, is certainly wishful thinking about the supposed deterrent effect. That eleven thousand people have crossed the Channel since the Illegal Immigration Act gained Royal Assent, making it government policy to remove them all, makes the deterrent logic yet more questionable.
That Act puts two legal duties on the Home Secretary. One is to remove people who came to the UK via a safe country (such as in Europe) as soon as it is possible. The other is to make inadmissible the asylum claims of anyone who arrives in the UK without permission.
Yet, having rushed the bill to Royal Assent in July, the government has not given legal force to those duties. Ostensibly, it is waiting for the Supreme Court’s Rwanda decision. Yet Rwanda’s limited capacity makes it irrelevant to up to 99% of those affected. The far bigger flaw in its plans – the most likely reason why they have yet to be given legal force and are rather another headline-grabbing distraction – has been little noticed.
The duty to refuse access to the asylum system to thousands of people arriving irregularly – permanently and even when the government has no alternative proposals – is likely to see the policy collapse, both in practice and law. Given that most of these irregular arrivals cannot be safely returned, the government has no real-world alternative to admitting people to the UK asylum system, to hear their claims on their merits.
So what will the government do? There is, perhaps, a clue in what they have done so far. The Illegal Migration Act was originally applicable to anyone arriving to claim asylum without permission after 7 March. That was quietly changed to ‘After Royal Assent’ – to avoid having to apply it to the 8000 people who had arrived. Keep your eye on those goalposts to see if they move again: perhaps, like the Rwanda scheme, the duties of the new Act may never apply to anyone.
The Rwanda arguments involve an important clash of values and principles about what is or is not appropriate. The anxiety and stress for those given notices that they are inadmissible for the asylum system are real. If the policy goes ahead, even if just two or three planes take off, that will be a harrowing experience for those who are deported.
Yet the Rwanda scheme itself – as an expensive and controversial policy that applies to only 1% of the issue – is mostly a distraction from the question of how this government, or the next one, can get to grips with an asylum policy that works.