Last week, Britain’s Supreme Court ruled that Britain’s policy to send asylum seekers to Rwanda was unlawful. The U.K. asylum policy, announced in April 2022 by then-Prime Minister Boris Johnson, declared that anyone entering the U.K. illegally after January 1, 2022 could be flown to Rwanda. Rwanda’s government, in turn, agreed to be responsible for processing and settlement. Rwanda would then offer asylum seekers the options of staying in the country, resettling in countries other than Britain, or returning home or to a previous country of asylum.
The court agreed with critics who charged that Rwanda was not a safe place for refugees. Supreme Court Justice Robert Reed argued that there are “substantial grounds for believing that asylum seekers sent to Rwanda would be at real risk of refoulement,” meaning that they could be sent back to their home countries where they could face retribution and punishment. Refoulement, he noted, breached both British and international law, and no agreement that left open this risk could possibly be lawful.
Why worry about Northern Ireland?
Over the next few weeks, current Prime Minister Rishi Sunak and his cabinet are likely to shift gears and produce a revised Rwanda policy the courts could find lawful. There’s an added catch: Observers worry that the ongoing saga puts at risk the future of the Good Friday agreement, the 1998 peace settlement that brought a tenuous end to sectarian conflict in Northern Ireland. As an anonymous Biden administration official reported, people in the administration are “Definitely all keeping an eye on Northern Ireland.”
It may seem puzzling that a policy to prevent asylum seekers from settling in the U.K. could upend a 25-year-old peace agreement. Yet it’s just one of many examples of how strained U.K. relations with European institutions threaten to undermine peace in Northern Ireland.
Does the U.K.’s Rwanda policy meet the standards of human rights law?
Human rights groups claimed the Conservative government’s U.K. asylum policy was unlawful for three reasons. First, by placing asylum seekers at risk of refoulement, the policy ran counter to international human rights law. The office of the U.N. High Commissioner on Refugees, which advised the U.K. Supreme Court, stated that the Rwanda agreement included “no arrangements … that would enable the transfer of asylum seekers to safe third countries in practice.”
Second, critics of the policy charged that plans to transfer asylum seekers to Rwanda violated British laws against refoulement. Over the last 30 years, Parliament has taken steps to embed international human rights law protecting refugees in U.K. domestic legislation. The Supreme Court stated the Rwanda policy undercut this legislation, including the Human Rights Act Parliament passed in 1998.
And third, critics maintained that the British were violating European human rights law, specifically the 1953 European convention on human rights (ECHR). The ECHR is an agreement between European countries that, among other things, prohibits the torture and inhumane treatment of refugees. The U.K. helped draft the convention and has remained a party to the ECHR, even after leaving the European Union in 2020.
It was on this basis that the European Court of Human Rights granted an urgent interim measure in June 2022 to prevent an Iraqi national from being transported from the U.K. to Rwanda. The court’s intervention literally grounded the inaugural flight of asylum seekers headed to Rwanda. There have been no flights since.
In response to the European Court’s intervention, some members of Sunak’s cabinet called for the U.K. to leave the ECHR. And that’s where things with Northern Ireland get complicated.
The ECHR is integral to peace in Northern Ireland
Even before Brexit, U.K. Conservatives wanted to leave the ECHR. In the 2015 General Election the Conservatives’ manifesto promised to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights.” The Conservative party sees the ECHR as undermining British sovereignty on everything from the extradition of terrorists to decisions to give prisoners voting rights.
The ECHR is a cornerstone of the Good Friday agreement, however. Several sections of the agreement cite ECHR principles as a commitment to ensure human rights of all people in Northern Ireland. As lawyer David Allen Green put it, “that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.” So if the U.K. leaves the ECHR, Northern Ireland does as well.
That would constitute a fundamental breach of the Good Friday agreement – and not just on paper. It will leave Northern Ireland without a neutral mechanism to ensure the provision of human rights across sectarian divides. And there can be no piecemeal application of the ECHR to Northern Ireland if the U.K. decides to leave. The ECHR mandates that its measures apply to all parties within a signatory’s jurisdiction. Beyond that, Unionists would strenuously object to any measure that suggests Northern Ireland is legally separate from the U.K.
Last week’s Supreme Court ruling avoided this rupture. The court charged that the U.K. plan to send asylum seekers to Rwanda violated domestic and international law, leaving the ECHR out of the equation entirely. But if Sunak’s government takes additional steps to prevent the possibility of refoulement – which it is likely to do in the next week – this might put the ECHR in the line of fire again. The European Court has made it clear that, even if a new agreement contains provisions to prevent the forced repatriation of asylum seekers, it will still oppose the U.K. policy in light of Rwanda’s poor human rights record.
If this happens, the Sunak government faces two choices. It could ignore or attempt to block the European Court’s ruling, and go ahead with transporting refugees to Rwanda. This would be a significant breach of the ECHR, but would leave the convention intact. Or it could follow the calls of hardliners and leave the convention entirely.
The E.U. and Northern Ireland’s precarious peace
All of this is ridiculously complicated – and yet another example of the ways the Good Friday agreement depends on the E.U., both formally and symbolically. It was at meetings at the European Council that U.K. and Irish leaders first broached the topic of a settlement to the Northern Ireland conflict. The E.U.’s Single Market 30 years ago “softened” the border between Ireland and Northern Ireland that had been in place since the end of the Anglo-Irish civil war in 1921.
The E.U. had more ephemeral effects as well. As Michael Cox argued, E.U. membership created an Irish middle class more interested in European integration than territorial unity. Other scholars point to how the E.U. “loosened” definitions of territorial sovereignty, and created space for the joint sovereignty arrangements that the Good Friday agreement relies on to maintain cooperation between Northern Ireland’s Union and Republican parties.
Britain’s moves to separate itself from Europe, thus, have also unintentionally destabilized Northern Ireland’s peace. Even before the Rwanda policy, fights over the nature of the Northern Ireland customs border had mobilized both Unionist and Republican opposition. Sunak realized these dangers, and quickly negotiated the Windsor Framework to settle the customs question – and avoid any question of a hard border between Northern Ireland and the rest of Ireland.
These U.K. policy developments should not be interpreted as tedious fights over conventions and tariffs on goods. They are contests over national identity, over whether Northern Ireland’s future lies with Ireland and Europe, or with the U.K. The more that Sunak’s government attempts to assert Britain’s unfettered sovereignty, be it on issues of trade or migration, the more the British government puts the Good Friday agreement – and the human rights of asylum seekers – at risk.