The judgment of the Supreme Court on the illegality of deportation of asylum seekers to Rwanda was given massive publicity in connection with the sacking of Home Secretary Suella Braverman, but in fact it is a decision of much wider significance.

It also has great relevance to the coming High Court hearing on Julian Assange, both in terms of the arguments, some of which are common to both cases, and the stance of the judges, some of whom are also common to both cases.

Let me start with the point on which the Supreme Court decision turned – whether or not the court should independently determine whether Rwanda is a safe country, or whether the Home Secretary is entitled to make that decision without the possibility of judicial interference, provided correct procedures are followed.

The original Divisional Court determination, by Justices Swift and Lewis, was that the Home Secretary’s decision was “irrebuttable” — that the Executive was best placed to make the decision and there was no room for interference by the courts.

This view was overturned by a majority of the Appeal Court, although there in a minority judgment Lord Chief Justice of England Burnett supported the original decision on rather incoherent grounds that this wasn’t the question at issue. 

The Supreme Court has said, unanimously, that judges had a positive duty to determine whether a country was safe for deportation, rather than simply take the word of ministers for it. This is a very strong piece of judicial activism.

“The correct test, derived from Soering, requires the court to decide for itself whether there are substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment, as a consequence of refoulement to another country. The assessment is one which must be made by the court.

The majority of the Court of Appeal considered that the Divisional Court had mistakenly dealt with the issue on the basis that the court’s role was confined to deciding whether the Secretary of State had been entitled to form the view that there was no such risk…”

After reviewing the evidence, the court judged that Rwanda’s general human rights record, its past treatment of refugees and the state of its asylum system make it an unsafe country for deportation. It does not become a safe country either because the previous home secretary, Pritti Patel, and Suella Braverman say so, or – and this is crucial for the Assange case – because its government makes promises about future behaviour.

Passage 46 is crucial, with obvious relevance to the Assange case, which I shall go on to explain:

“The Secretary of State relies on the assurances provided by the Rwandan government in the MEDP as meeting any concerns arising from the evidence about the past and present operation of the Rwandan asylum system. In essence, the Secretary of State submits that, notwithstanding any problems that there may have been in the past or that may remain at present, the MEDP sets out arrangements for the future which provide adequate safeguards against refoulement, and the Rwandan government can be relied on to fulfil its undertaking to process the claims in accordance with those arrangements…” 

As authority for its view that it is for the court to decide on the safety of the deportee, they quote with approval the European Court of Human Rights decision in the Othman case:

“There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill- treatment. The weight to be given to assurances from the receiving state depends, in each case, on the circumstances prevailing at the material time.”

This is interesting because the decision in the Othman case forms part of the legal arguments for Julian’s appeal.

Diplomatic Assurances of Good Treatment

There is a massive academic literature, right across the world, on the weight to be given (or not) to diplomatic assurances of good treatment by the receiving government, in extradition or deportation cases. The issue has generated countless PhDs and employed the time of numerous officials of governments, international institutions and NGOs. 

Governments like the U.K. that wish to deport people are keen to argue that deportation to assorted dictatorial hellholes is fine if the torturing dictatorship sends a diplomatic note promising not to torture or persecute (or send to torture and persecution). International institutions and judges tend to argue that facts on the ground are worth more than pieces of paper. In practice, the U.K.’s system of deportations relies heavily on “diplomatic assurances”.

The U.K. government gets away with this by carefully not monitoring what happens to the deportee at the other end. In the only Uzbek case in which my intervention ever failed to prevent a deportation, the couple concerned simply vanished on arrival back in Tashkent. The position of the FCDO is that, as they were Uzbek nationals, the British government had no responsibility to monitor what happened to them in their home country, after deportation from the U.K.

In the present Rwanda case, the Supreme Court notes that the U.K. government plans to operate the Rwanda policy through the Migration and Economic Development Partnership (MEDP), which in practice consists of a Memorandum of Understanding and two diplomatic notes from the government of Rwanda entitled “the asylum process of transferred individuals” and “the reception and accommodation of transferred individuals”. 

These are simply “diplomatic assurances” in their classic form, and the Supreme Court treats them as such.

The Home Secretary’s appeal against the Appeal Court judgment explicitly argued that the court should defer to the executive’s judgment of the value of these assurances, which the Supreme Court summarises as the Home Secretary criticising the Appeal Court for:

giving insufficient weight to H.M. Government’s assessment of the likelihood of the government of Rwanda abiding by its assurances

The Supreme Court rejects the notion that diplomatic assurances provided to the executive outweigh an assessment by the court itself of the true situation. The Supreme Court states:

The government’s assessment of whether there is such a risk is an important element of that evidence, but the court is bound to consider the question in the light of the evidence as a whole and to reach its own conclusion.

This is a definitive position, and a very strong one, in the debate about the role of diplomatic assurances in deportation proceedings.

The reason this is so vital to the Assange case, is that the court of first instance decided against Assange’s extradition, due to the combination of his health and the appalling maximum security conditions to which he would be subjected in the United States. On Appeal by the government of the U.S., Lord Chief Justice Burnett rejected this argument, primarily on the basis of diplomatic assurances as to Assange’s treatment, received in diplomatic notes submitted at the appeal stage. 

Because they were not submitted to the original hearing but only at Appeal, Assange’s team had no opportunity to question these diplomatic assurances or cross-examine on their value. Lord Chief Justice Burnett rejected this as having any weight, on the grounds that it was for the executive to decide the value of diplomatic assurances.

Note that Lord Chief Justice Burnett was also the dissenting judge who found for the government at appeal in the Rwanda case, where again he argued that the diplomatic assurances from the Rwanda government should simply be accepted on the executive’s evaluation. That is the classic executive position in the whole diplomatic assurances debate – and the Supreme Court has just unanimously and fizzingly rejected Burnett’s argument.

If it is for the court and not the executive to investigate and determine the value of diplomatic assurances in the Rwanda case, then it must also be for the court to examine and determine the value of diplomatic assurances in the Assange case. At no point in the Assange process has any court undertaken this duty, or the defence been offered any opportunity to challenge the veracity of the diplomatic assurances.

That must now play a crucial role in consideration of the Assange case going forward.

It is Burnett who granted the US appeal against the refusal to extradite Assange. Burnett is the best friend and former college flat mate of Tory Minister Alan Duncan, who called Julian “a worm” in parliament and who was in direct charge of the operation to remove Julian from the Ecuadorean Embassy. 

The other judge whose arguments were resoundingly rejected by the Supreme Court is Jonathan Swift, who found for the Home Secretary at first instance in the Rwanda case. Swift is also the judge who dismissed Assange’s 150-page appeal in three double-spaced pages and attempted to limit any future hearing to half an hour. Again as previously explained here, Swift is a former barrister for the security services, which he said were his favourite clients.

Supreme Court Tramples Over Swift

Swift’s judgments in both the Assange and Rwanda cases smack of the alt-right in their contemptuous dismissal of argument and contrary evidence. The Supreme Court, however, is crushing about Swift’s simple assertion in the Divisional Court that the United Nations Commission for Human Rights is not a body whose views should be given particular weight. The Supreme Court tramples all over Swift’s trite approach, in hobnailed boots, for a significant period of time. It is worth quoting its ruling at length:

“The Divisional Court was dismissive of this evidence, and did not attempt to engage with it. It stated at para 71 that the evidence of UNHCR ‘carries no special weight.’ 

64. The Divisional Court’s view that the evidence of UNHCR carried no special weight was a further error. Of course, the weight to be attached to evidence is always a matter for the court, and will depend on the circumstances. However, a number of factors combined in the present case to render the evidence of UNHCR of particular significance.

65. The first relevant factor is the status and role of UNHCR. It is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention: see the Statute of the Office of the United Nations High Commissioner for Refugees, annexed to U.N. General Assembly Resolution 428(V), 14 December 1950. Under article 35 of the Refugee Convention, states parties undertake to co-operate with UNHCR in the exercise of its functions, and to facilitate its duty of supervising the application of the provisions of the Convention.  

Reflecting those circumstances, it is well established that UNHCR’s guidance concerning the interpretation and application of the Refugee Convention ‘should be accorded considerable weight’: Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, para 36. In IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6; [2014] 1 WLR 384, para 44, this court stated that ‘the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority’.

66. The second factor, mentioned in that dictum, is UNHCR’s expertise and experience. That factor was also emphasised by this court in R (EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321, when considering the approach which should be adopted to evidence provided by UNHCR in relation to the risks involved in removing asylum seekers to another country. Lord Kerr of Tonaghmore, with whose judgment the other members of the court agreed, referred (para 72) to ‘the unique and unrivalled expertise of UNHCR in the field of asylum and refugee law’, and expressed agreement with the observations of Sir Stephen Sedley in the court below [2013] 1 WLR 576, para 41, which he quoted at para 71: “It seems to us that there was a reason for [the European Court in MSS v Belgium and Greece] according the UNHCR a special status in this context.

The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit. 

As was mentioned in that passage, considerable weight isgiven to the evidence of UNHCR by the European Court. In MSS v Belgium and Greece, for example, the court attached “critical importance” (para 349) to UNHCR’s concerns about the treatment of asylum seekers in Greece. In Ilias v Hungary, UNHCR’s reports were described as “authoritative” (para 141, quoted at para 45 above). For the reasons we have explained, it is unsurprising that that should be so; and it is a factor which is relevant to the approach of domestic courts when considering asylum questions under the ECHR.

UNHCR’s evidence will naturally be of greatest weight when it relates to matters within its particular remit or where it has special expertise in the subject matter. Its evidence in the present case concerns matters falling within its remit and about which it has undoubted expertise. As the Lord Chief Justice observed in the present case, UNHCR ‘has unrivalled practical experience of the working of the asylum system in Rwanda through long years of engagement’ (para 467). It has been operating permanently in Rwanda since 1993, and had 332 staff there at the time of its evidence in these proceedings.

Its role in Rwanda includes assisting asylum seekers and refugees, funding and training non-governmental organisations working with the Rwandan asylum system, dealing with officials responsible for asylum decision-making, and engaging with the relevant department of the Rwandan government over the management of refugee camps. Although UNHCR has no official role in Rwanda’s asylum system, the Rwandan authorities have, albeit intermittently, sent it copies of asylum decisions, and UNHCR receives information from asylum-seekers and NGOs, and through communications with relevant officials. UNHCR is therefore able to collate data and gain insight into the practical realities of Rwanda’s asylum system. 

Its experience was recognised by Home Office officials. They reported that the Rwandan government depended heavily on UNHCR and other non-governmental organisations for delivering its asylum and refugee processes, and that UNHCR had undoubted expertise and experience of managing part of the refugee process, as well as knowledge of the Rwandan system more generally.

As the Lord Chief Justice noted at para 467, UNHCR can be said to have an institutional interest in the outcome of these proceedings, since it has adopted the position (set out in its Guidance Note on bilateral and/or multilateral arrangements of asylum-seekers) that asylum seekers and refugees should ordinarily be processed in the territory of the state where they arrive or which otherwise has jurisdiction over them.

The fact that UNHCR has adopted that position is a factor to be taken into account when assessing its evidence. However, its evidence and submissions were presented with moderation, and did not appear to reflect a partisan assessment. It has also to be borne in mind that, as a responsible United Nations agency accountable to the General Assembly, UNHCR will not lightly make statements critical of any state in which it operates.

Drawing these threads together, it is apparent from the factors which we have mentioned and the authorities which we have cited that particular importance should have been attached to the evidence of UNHCR in the present case. That is not to say that its evidence should necessarily be decisive or pre-eminent. In the circumstances of the present case, however, its evidence on significant matters of fact is essentially uncontradicted by any cogent evidence to the contrary, as the Court of Appeal explained (e.g. at para 136). It should not have been treated as dismissively as it was by the Divisional Court.” 

I think it is fair to say that the Supreme Court’s extensive comments on Swift’s one-sentence dismissal of the evidence of the United Nations, is not incompatible with the view that the Supreme Court has twigged Swift for a glib little wanker. I wonder whether they would take the same view over Swift’s equally glib and dismissive approach to Assange’s entire appeal? 

A further hot legal point that has relevance for the Assange case relates to the extent to which the U.K. is bound by international law.

I have attended a number of meetings at the U.N. in Geneva this last fortnight, including country reviews of the human rights records of a number of nations. These NGO and expert meetings are held under Chatham House rules, so I am not able to repeat precise details.

But I saw developing nations specifically criticised for failures of judicial decisions to take into account the obligations in international law of the state to follow treaties they have ratified.

Extraordinarily, the U.K. openly takes the view that no international law, including treaties it has signed, is ever legally binding on the U.K. unless it has been explicitly incorporated in U.K. domestic legislation. The U.K. does not consider itself bound by treaties it has ratified. 

This is absolutely crucial in the Assange case, where the U.S./U.K. Extradition Treaty of 2003, under which the extradition is taking place, specifically forbids political extradition. The British courts have accepted the argument  on Assange that this is irrelevant as the treaty has no legal force, this text not having been incorporated in any U.K. domestic legislation.

The Supreme Court judgment on Rwanda, however, appears to take the U.K.’s obligations in international law very seriously. The Supreme Court does not appear to be treating the U.K.’s international treaty obligations as governing the conduct of the U.K. Government, only insofar as they are incorporated in domestic law. After talking about the prohibition of refoulement under the Refugee Convention, the Supreme Court states:

“As we shall explain, refoulement is also prohibited under a number of other international conventions which the United Kingdom has ratified. There are also several Acts of Parliament which protect refugees against refoulement.”

It is very difficult to read that in a way that makes the applicability of the international treaties valid only insofar as they have been incorporated in the Acts of Parliament. The second use of the word “also” is here a specific indicator that the international conventions are sufficient; the Acts of Parliament are reinforcement, not necessary condition.

That perhaps is not immediately apparent. Let me show you without the second “also”. 

“As we shall explain, refoulement is also prohibited under a number of other international conventions, which the United Kingdom has ratified. There are several Acts of Parliament which protect refugees against refoulement.”

In that formulation it is possible to argue that the Acts of Parliament are necessary to give effect in law to the international conventions, even though that is not stated. But insert the second “also”:

“As we shall explain, refoulement is also prohibited under a number of other international conventions which the United Kingdom has ratified. There are also several Acts of Parliament which protect refugees against refoulement.”

The “also” makes it impossible to argue that the international conventions have no weight without the Acts of Parliament. Do you see it now?

The Supreme Court then does go on to discuss the several areas of U.K. domestic law that do establish the principle of non-refoulement, but I thought the initial approach was very interesting. There is an unresolved tension over the status of international law inside the U.K., and the Supreme Court rather leaves it floating. 

Should the Assange case reach the Supreme Court, it does not appear to me impossible they may take a different view on the applicability of the “no political extradition” clause of the Treaty under which the extradition is taking place.

I am of course delighted about the spoke in the wheel of the appalling Rwanda deportation project. Anyone paying attention to social media is bound to have noticed the correlation between support for the Rwanda proposal and support for Israel’s genocidal actions. I suppose it is all a part of a general racism and Islamophobia.

One further question left hanging by the Supreme Court is the “Flat Earth” question. This is likely to arise fairly soon, if the Tories carry through their promise to specifically legislate for the legality of deportation of asylum seekers to Rwanda.

The question is this. The Supreme Court has ruled it did not have to accept the Patel/Braverman assessment of the safety of Rwanda, but had the duty to make its own determination.

But if parliament were to pass a law stating that Rwanda is safe, rather than that the Secretary of State can designate it safe, would the court still have the right to exercise its own judgment in face of what would be a strange but extant statute?

If Parliament passed a law stating that the Earth is flat, would that mean that in U.K. law the Earth is flat, or could judges make their own assessment? How do you square the answer to that question with the ruling doctrine of the sovereignty of the King in Parliament?

We may be going to find out, if the Tories are determined to push ahead with legislation on the safety of Rwanda, as they propose. We find ourselves asking ludicrous questions with a straight face, but that is where crazed Tory rule has taken us.

Craig Murray is an author, broadcaster and human rights activist. He was British ambassador to Uzbekistan from August 2002 to October 2004 and rector of the University of Dundee from 2007 to 2010. His coverage is entirely dependent on reader support. Subscriptions to keep this blog going are gratefully received.

This article is from CraigMurray.org.uk. /Consortium News

yoojin@wikileaks-kr.org