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James Cleverly insisted on Thursday that Britain was still on course to remove asylum seekers to Rwanda, putting on a brave face despite the mountain of problems facing him in his new role as home secretary.
The UK Supreme Court this week upended a central plank of the government’s policy to tackle irregular cross-Channel migration, complicating Cleverly’s first days on the job by ruling that the Rwanda policy was unlawful.
Cleverly, former foreign secretary, was appointed to his new role on Monday after his predecessor Suella Braverman was sacked by Prime Minister Rishi Sunak.
He arrives at the Home Office at a time when relations with the police have soured, prisons are at capacity, legislation to curb irregular migration is in limbo and the asylum system faces a severe backlog in claims.
The home secretary insisted the government would be able to remove asylum seekers to Rwanda before the general election expected next year, which some ministers hope will deter small boat crossings to the UK.
Cleverly said Britain would not have to leave the European Convention on Human Rights to force through a fresh plan. “I believe we can act in accordance with international law,” he told the BBC’s Today programme.
His comments came a day after the Supreme Court ruled that the Rwanda removal policy was unlawful. The judgment has fuelled tensions between Sunak and factions on the Conservative right who want radical action to ensure the policy succeeds, to stave off the humiliation of one of the government’s flagship policies failing.
In a unanimous decision, the court’s five judges said there was a real risk that asylum seekers sent to the African nation would be removed to their countries of origin without proper consideration of their claims, in violation of both international and domestic UK law.
After the ruling, Sunak vowed to agree a new, legally binding treaty with Kigali and said he would pass emergency legislation to deem Rwanda a “safe country”, overriding other assessments.
The announcement has prompted alarm within the legal profession. Lord Jonathan Sumption, a former Supreme Court judge, told the BBC that the idea of asserting a fact in legislation that runs counter to the determination of the court was “profoundly discreditable”.
He said that while parliament sometimes does change the law in response to a judicial decision with which it disagrees, he had “never heard” of an intervention to change a fact “declared by the courts to be correct”.
That “would be constitutionally really quite extraordinary”, he added.
Cleverly is widely seen as less abrasive than Braverman, a standard bearer for the Tory right whose year as home secretary was punctuated by sparring with lawyers, police and those she considered the “wokerati”.
But in a sign Cleverly will continue his predecessor’s legacy in pushing the boundaries of the law, he dismissed Sumption’s comments. “Find me two lawyers and I’ll show you three opinions,” he said.
He added that the government had spent the past year working with Rwanda to “beef up” and professionalise its asylum system. He also noted efforts to transform the existing memorandum of understanding with Rwanda into a legally binding treaty could be done “in a matter of days”.
The Supreme Court ruling left the government with hope that the Rwanda policy could become lawful “in future”, if necessary changes were made.
“I think the Supreme Court left them enough wiggle room to sound to an uniformed observer as if they have a path through. But the court was so damning about the situation in Rwanda and part of that was that it can’t be relied on to respect international treaties,” said immigration barrister Colin Yeo.
By contrast Richard Ekins, head of the judicial power project at the Policy Exchange think-tank, said he believed the government’s proposal could work.
The new treaty would deal with the court’s concern that Kigali could send people back to their country of origin where they face the risk of persecution by legally ruling that out, he said.
Emergency legislation would allow officials to remove asylum seekers to Rwanda while ruling out challenges on the grounds of domestic law.
“It would be responding to the problem and thus making Rwanda safe and then legislating to say the removals can go ahead because parliament is satisfied,” he said.
Ekins, who is also a professor of law and constitutional government at Oxford university, conceded, however, that attempts to remove asylum seekers to Kigali would likely be snarled up in legal challenges.
In some respects Cleverly assumed his role on a firmer footing than his predecessor did a year ago.
Due to a returns agreement between the UK and Albania, and bad weather, the number of small boat crossings so far this year is down on last year.
The recruitment drive to hire more asylum caseworkers has also begun to bear fruit, with the backlog in claims down from its peak of more than 170,000 people earlier this year.
“The irony is that if they hadn’t made such a big thing about Rwanda and hung the whole migration policy on it, they could say they have made some progress,” said Sir David Normington, former permanent secretary at the Home Office.
