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A lot has changed in the UK since January 31, 2020, when it left the European Union. A recent business trip to the UK during the Supreme Court’s summer recess revealed a country suffering from high inflation, shuttered shops and restaurants, and an appreciable dearth of labour. On the morning of June 27, I was astonished to read the front-page headline of a leading newspaper.
Senior doctors in the NHS have voted to strike. They will go on strike for two days to protest their wages for the first time in 50 years to overturn massive pay cuts. This will greatly worsen healthcare in the UK, given that after Brexit there was already a shortage of doctors. More than 4,000 European doctors have left the NHS.
Oxford University’s Migration Observatory August 2022 shows that in sectors such as hospitality, transport and warehousing, which have relied heavily on EU workers, there is a massive shortage of workers. They also noted that in some sectors such as agriculture, employers were able to switch from EU workers to non-EU workers. But in most low-paying industries, the immigration system does not allow them to do so. The “free movement” of labor from the United Kingdom to and from the European Union ended on December 31, 2021. Official estimates indicate a shortage of 330,000 workers.
It is reported that since Brexit and leaving the European Union, until now, the United Kingdom is facing a recession and a crisis in the cost of living. Inflation is at its highest level in 40 years. The Governor of the Bank of England, Andrew Bailey, noted that the “gap in the UK labor markets” could add to inflation problems.
Amid this public crisis in the UK, an important decision was made by the Court of Appeal on 29 June 2023. Ten asylum seekers from Syria, Iraq, Iran, Vietnam, Sudan, Albania and one charity, Asylum Aid, have gone to court. Asylum seekers arrived in the UK irregularly by crossing the English Channel from France in small boats.
In April 2022, the Conservative government introduced a policy of sending some asylum seekers on a “one-way ticket to Rwanda” as described by the BBC. Essentially, the UK and Rwanda governments entered into a Memorandum of Understanding on April 14, 2022, Rwanda will be treated as a “safe third country” under UK immigration laws.
Schedule 3 of the Asylum and Immigration (Treatment of Claimants) Act 2004 allows the government, as long as it obtains parliamentary approval to designate certain countries as ‘safe’. Hence, under this new policy, 6,500km of those who entered the UK irregularly will be sent to Rwanda, where their asylum applications will be processed.
The appellants challenged the legality of Rwanda’s policy
in general and the characteristics of the ten individual cases as well. This is the legal procedure followed in each of the 10 specific cases. Another central issue before both the Supreme Court and the Court of Appeal was whether Rwanda’s asylum system was capable of “providing credible results”. The case first came before the Supreme Court, which heard challenges to both Rwanda’s public policy and individual cases. While it rejected the policy appeal, it found that in the 10 specific cases, deportation to Rwanda was nullified on the grounds of “procedural unfairness”.
The government did not appeal the court’s findings in 10 specific individual cases. Much to the credit of the UK government’s litigation moderators, given that in India, government departments will almost always challenge adverse court rulings even if the law is blatantly against them.
In the Court of Appeal, the majority decision consisting of the Master of the Rolls, Sir Geoffrey Fosse, and Lord Justice Underhill is that the “deficiencies in Rwanda’s asylum system” are such that “there are substantial grounds for believing that persons who have been sent to Rwanda risk being returned to their countries of origin”. where they faced persecution or other inhumane treatment, when in fact they have a good claim for asylum.” In this sense, Rwanda is not a “safe third country”. The conclusion is based on evidence that was before the Supreme Court that “Rwanda’s system for adjudicating asylum claims was, in the period leading up to the conclusion of the Rwanda Agreement, inadequate”.
The Court unanimously agrees that “the assurances given by the Rwandan government were made in good faith and were intended to remedy any shortcomings in its asylum procedure”. However, the majority believes that the evidence does not reliably prove that the necessary changes were made at that time or would have occurred at the time of the proposed removals.
As a result, sending anyone to Rwanda would constitute a breach of Article 3 of the European Convention on Human Rights which Parliament has asked the government to comply with. The court also made it clear that its decision contained no opinion whatsoever on the merits, political or otherwise, of Rwanda’s policy. The court notes that “this is a matter entirely for the government”. The court’s only concern was whether the policy was in accordance with the law as laid down by Parliament.
As I strolled through London, a capital in decline, I thought of the anti-immigrant hostility that led to Brexit and its subsequent harsh immigration policy. This harshness includes a deterrent lesson that if you enter the country irregularly, you could be sent 6,500 kilometers to a faraway country for a decision on your asylum claim. Voters have to be very careful what they vote for. Voting to shut down a country could mean derailing all that is good in an interconnected world – where people, commerce and ideas move across borders. In our interdependence is our mutual prosperity.
The writer is a senior attorney at the Supreme Court
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