IT was announced yesterday that net migration is three times what it was when the Tories were re-elected for a third term in 2019 on a manifesto promising to reduce it. It is tempting to laugh but really, we should weep.
One of the main reasons Brexit occurred was a result of the moral panic stirred up over immigration. And now we are left with a situation where we have lost free movement and skilled workers while refugees and asylum seekers are being treated appallingly, and all for nothing.
An incredible amount of parliamentary time has been devoted to reducing net migration, not to mention hot air, and yet here we are. Is it safe to hope that the dog-whistle rhetoric of the Tory right has had its day and that an incoming Labour government might see sense on these matters?
One hopeful sign was last week’s judgement of the UK Supreme Court finding that the UK Government’s crackpot scheme to send asylum seekers to Rwanda was unlawful. Under the Migration and Economic Development Partnership (MEDP) agreed with the Rwandan government some of those seeking asylum in the UK could be sent to Rwanda to have their claims processed not by the UK but by the Rwandan government.
READ MORE: Lee Anderson suggests 'remote Scottish island' as Rwanda back-up option
In the MEDP the Rwandans committed to comply with international human rights and refugee law including the principle of “non-refoulement” i.e., not returning refugees to their country of origin, either directly or indirectly, if their life or freedom would be threatened in that country.
However, the Supreme Court decided unanimously that the Rwandan policy is unlawful because Rwanda is not a safe destination, there being substantial grounds for believing there is a real risk that the human rights of asylum seekers sent there would be breached principally due to the risk that they would be sent on to face persecution.
The court reached this decision after forming a view on evidence about the situation on the ground in Rwanda presented by the UN High Commissioner for Refugees (UNHCR).
They particularly focused on the fact that the general human rights situation in Rwanda is far from ideal, the inadequacy of Rwanda’s current asylum system and Rwanda’s failure to abide by obligations in a similar previous agreement with Israel.
The evidence of human rights and rule of law concerns was extensive and included evidence about the persecution of people who are critical of the government in Rwanda, the lack of judicial independence and the fact that 100% of Yemenis, Syrians and Afghanis have had their claims for asylum rejected in Rwanda in recent years despite their fellow countrymen and women having a high success rate in the UK system during the same period.
The UNCHR presented shocking evidence that more than 100 asylum seekers sent to Rwanda by Israel had been moved clandestinely to Uganda and in three cases the UNHCR had to step in to prevent Eritreans from being directly returned to Eritrea.
The Supreme Court went out of their way to make it clear that the non-refoulement principle is found not just in the European Convention on Human Rights (ECHR) but also in other international treaties to which the UK is a signatory including the Refugee Convention; the UN Convention Against Torture (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR).
It is also a part of the domestic law of the UK by virtue of the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
READ MORE: Home Secretary James Cleverly denies calling Rwanda plan 'batsh**'
This should put paid to the lazy argument that it is only the UK’s membership of the ECHR which is stopping the Tory government from dealing with the problem of small boats. The days of crying wolf about “foreign courts” should now be over. It’s a domestic court that has stopped the scheme in its tracks.
If the Tories want the Rwandan scheme to go ahead, they are going to have to repeal a lot of UK legislation and be prepared to leave or break numerous international treaties. Doing that would make them international pariahs.
One former Tory minister has even argued it could mean that some British officials who travelled abroad could risk arrest.
And of course, leaving the ECHR would undermine devolution, breach the Good Friday Agreement, and render our post-Brexit agreements with the EU on trade and co-operation, security, data sharing and Horizon unworkable.
So what does the Prime Minister propose to do? We should not laugh too much at Lee Anderson MP’s suggestion that asylum seekers should instead be sent to an uninhabited island in "the Orkneys".
READ MORE: Douglas Ross defends Rwanda plan and insists Prime Minister 'respects' court ruling
Earlier the Tories were contemplating the Falklands as a destination. However, it seems for now that what the Tories have in mind is two things, fast-tracking a legally binding treaty with Rwanda and a law saying that, notwithstanding the court’s findings, the country is a safe place.
This would be laughable if it wasn’t so serious. Parliament might as well pass an act of saying the moon is made of cheese. Furthermore, the courts, as one Cabinet secretary has commented, will go “ballistic”.
Because of the way in which the Supreme Court framed its decision there is no quick fix for the situation the Government has got itself into.
The court’s recognition that the issue is not the Rwandan government’s good faith, but rather its practical ability to fulfil the assurances it has given, makes it clear that there is a lot of work to be done before those assurances could be fulfilled, if ever.
It also means that merely replacing the MEDP, which is not legally binding, with a treaty which is would not solve the problem because that would not address the practical problems of compliance.
So, for now it’s going to be very difficult for the UK Government to get itself out of the hole it has dug. They have spent two years now and God knows how much money formulating a policy which looks unworkable.
Their response should be to ask how they can produce a human asylum policy which works with safe legal routes for those genuinely fleeing persecution.
The chances they will do so are slim, but the reality is that the ball may soon be in Labour’s court. It is time for closer scrutiny of what they propose.
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