EU laws could block the UK from sending asylum seekers to Rwanda despite Brexit, lawyers have argued in the Supreme Court.
The government is challenging a Court of Appeal ruling from June that its multimillion-pound plan to deport migrants to Rwanda to have their claims processed is unlawful.
Richard Drabble KC, who represents one of the asylum seekers who challenged being sent to the east African country, argued in the UK’s highest court on Wednesday that the UK was still signed up to a crucial part of EU law, which bans the removal of asylum seekers to a country where they have no connection.
The argument, if it is accepted, was described as a potential “knockout blow” for the government’s Rwanda deal by Supreme Court judge Lord Reed.
Mr Drabble told the court: “The EU bans removal of people to countries to which they have no connection ... that part of EU law has been retained in UK law following our removal from the European Union.”
He argued that the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 had withdrawn the UK from EU law relating to immigration, but had not mentioned asylum law.
“Immigration and asylum are distinct concepts in EU law, which are subject to distinct legal frameworks,” he said.
He added that UK lawmakers had “no intention to repeal a whole corpus of asylum rights” when they were writing the EU withdrawal act for Brexit.
Mr Drabble continued: “The secretary of state’s case is that this whole body of law has been repealed with nobody lending their mind to it.”
But the Home Office’s claims the EU asylum directive was not retained after Brexit and that the withdrawal act was written in a broad enough way to cover withdrawal from these asylum rights.
Lord Pannick, representing the government, argued that the 2020 withdrawal act “is not confined to removing retained EU law concerning free movement”, and would still be relevant to asylum directives.
He objected to Mr Drabble characterising the Home Office’s removal of these asylum rights as “legislation by side wind”. Lord Pannick said Mr Drabble’s argument that issues of immigration and asylum were separate was “unsustainable”.
Earlier on Wednesday, Sir James Eadie KC, acting for the Home Office, argued that it was not necessary for the judges to pay significant attention to past abuses by the Rwandan government over concerns the rights of asylum seekers sent there could be breached. They should instead consider the wording of the agreement the Rwandans had made with the UK and trust them on their promises, he said.
“The UK has a very powerful incentive itself to ensure that Rwanda does operate a safe system”, he said.
He previously told the court on Tuesday that Rwanda had “pretty strong financial incentives” that would encourage them to treat asylum seekers properly.
He also said that an extensive monitoring scheme had been set up by the UK government to oversee asylum decisions made by Rwanda.
But Raza Husain KC, who represents a number of asylum seekers, argued that the UK government’s monitoring would “lack teeth”, and would not be able to act quickly enough if any abuses took place.
Several asylum seekers who were set to be deported on the first planned flight to Rwanda in June 2022 are opposing the appeal.
The flight was grounded before take-off after the European Court of Human Rights ruling in Strasbourg.
The hearing before Lords Reed, Hodge, Lloyd-Jones, Briggs and Sales is expected to end on Wednesday, with a judgment expected in a few months’ time.
