Main Idea

The other day I was having a course on Pragmatic Approach to Law and one of the examples that came to my mind was the recent UK Supreme Court judgment in AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023).

At first sight, one would argue that the Supreme Court judgment seems to reflect an application of the law without deviation or undue consideration of practical outcomes. The conclusion that the Rwanda policy is currently unlawful due to real risks of refoulement is based on legal principles and evidence, not pragmatic considerations. Unless other information comes to light, characterizing this judgment as “pragmatic” does not seem supportable. I’m happy to discuss further if you have additional perspectives on this.

And there are reasons for that assumption, for example the jusges applied established legal principles, or the judgment went through the legal issues methodically. They even did expressly state the Court is not concerned with the political debate, only with the legal questions on the basis of evidence and principles set down by Parliament. But a curious mind mustn’t accept only the obvious.

I stated that the Supreme Court did not rule that the overall policy or concept of sending asylum seekers to a third country to have their claims processed is inherently unlawful. Their focus was specifically on the deficiencies of the Rwandan asylum system and the real risks of refoulement that asylum seekers would face in Rwanda. And in that case one should argue that there is a degree of pragmatism at play, in that another third country with a more robust and rights-compliant asylum system may have potentially passed legal muster. The Court even notes that the necessary improvements may be possible in Rwanda in the future. There’s still one important question in my mind:

In the recent UK Supreme Court case regarding sending asylum seekers to Rwanda, I argued that while the Court said the overall policy of sending asylum seekers to third countries is not inherently unlawful, could I argue that this policy is still not totally lawful or ethical? Therefore, did the judges actually rule based on a pragmatic approach rather than sound legal principles?

What I Think?

In order to answer the question, here’s my quick analysis on the matter, which I shared on my LinkedIn page as well:

The recent UK Supreme Court judgment in [2023] UKSC 42 tackled the complex question of whether the government’s policy of removing certain asylum seekers to Rwanda for offshore processing of their claims passes legal muster. While the Court confined its ruling to deficiencies in the Rwandan asylum apparatus specifically, its reasoning raises deeper questions about the legal and ethical implications of extra-territorial asylum processing overall.

On one hand, the Court pointedly did not deem the policy unlawful per se, fixating on procedural flaws in Rwanda instead. This technically leaves open the possibility of lawful offshoring of asylum claims pending a rights-compliant destination. However, the Court’s extensive citing of established protections for asylum seekers signals indirect skepticism about externalizing asylum obligations. Though reaching a pragmatic conclusion, the underlying legal principles cited constrain offshoring policies considerably.

Additionally, while Rwanda’s rights deficits proved dispositive presently, the broader enterprise of shifting refugees and their complex claims abroad risks stretching legal principles of non-refoulement and due process thinner in the future. however judiciously applied. The Court’s carefully circumscribed ruling belies the instability of using fraught third countries to theoretically render policies lawful that struggle to pass ethical muster. Though not pronounced unlawful outright, the overarching policy still warrants searching legal and moral scrutiny going forward.

In summary, while pragmatism prevailed in rejecting Rwanda specifically on procedural grounds, the Court’s jurisprudential commitments indicate that extra-territorial asylum policies likely conflict with core legal safeguards for refugees’ rights in ways [2023] UKSC 42 avoided explicitly declaring but cannot fully resolve. The principles undergirding the Court’s reasoning suggest deeper unlawfulness may persist irrespective of destination.