Last week the United Kingdom’s Supreme Court declared the government’s Rwanda policy – a political agreement to transfer asylum seekers from the UK to Rwanda to have their claims processed and granted there – unlawful. It did so on the narrowest and most solid of legal grounds imaginable: the prohibition of refoulement, ie the return of individuals to a state where they are likely to face torture, cruel, inhuman or degrading treatment or other irreparable harm. This norm is foundational to the international legal regime regulating human migration and universally agreed upon. It was also so obviously breached by the agreement that it felt almost insulting the Court had to spell it out. But it did. And so what? In response, the UK government has declared it will simply legislate the policy’s illegality away by declaring Rwanda a safe third country and/or by exiting various international treaties that oblige it to respect the refoulement principle. To hell with the law and its pesky demands.
Perhaps Sunak’s statements might just be political posturing ahead of his country’s upcoming election. After all, immigration control has been a – if not the – political hot-button issue of our time, and it has proven a successful electoral strategy to stoke xenophobic fears while providing no real solutions to the challenges that migration raises. Others might say that there is nothing inherently new about this type of intentional illegality. Governments of liberal-democratic constitutional orders have long displayed a considerable degree of hypocrisy, at times blatantly and other times more subtly breaching the very norms, values and rules they proclaim to subscribe to and supposedly consider themselves bound by. This has been especially the case where they deal with individuals they decide for themselves to be rightfully excluded from their legal systems and normative ideals.