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How landmark court decisions in the UK and Australia could turn the tide on cruel border policies

Courts in the United Kingdom and Australia have handed down landmark decisions overturning key government policies on border protection. This rulings have left the Sunak and Albanese governments scrambling for alternatives. This is a significant moment that may mark the beginning of the end of inhumane border policies designed to deter asylum seekers.

This comes as the Australian High Court ruled on 8 November that the indefinite detention of people was illegal and unconstitutional. The Chief Justice, Stephen Gageler stated that “at least a majority” of justices agreed that the Migration Act, which has previously been interpreted to authorise indefinite detention, was beyond the legislative powers of government. 

The Australian Human Rights Commission welcomed the decision, with its president stating last week that “This is a truly historic decision in terms of human rights and social justice in this country, and I thank all the people and organisations who have contributed in their own ways to bringing this about.”

While the indefinite detention of refugees is violation of international law, Australian governments detained refugees indefinitely because of a previous high court decision in 2004 that found it legal under Australian law. Successive Australian governments have used the indefinite detention of refugees and asylum seekers as a punishment for those who make it to Australia and a brutal deterrent for others seeking the same path. 

Most of those detained indefinitely cannot be deported because they were denied an Australian visa and are either stateless or refused to return to their country of origin. Until now they have lived in a state of limbo in Australian detention centres.

After the announcement, immigration minister Andrew Giles revealed that 80 people had been released from immigration detention since the high court ruling. They were granted bridging visas allowing them to stay in Australia. While asylum seekers can still be detained, this effectively spells the end of indefinite detention in Australia.

In a case of sublime timing, the UK Supreme Court on ruled on 15 November that the government’s Rwanda asylum policy was unlawful. The plan was a key part of the UK government’s border policy to tackle asylum seekers arriving by boat and the government has already spent £140 million on the policy. 

The plan has been controversial since its inception under Boris Johnson, with flights prevented from taking off due to court challenges due to human rights concerns. The UK’s highest court agreed, finding the plan leaves people sent to Rwanda open to human rights breaches due to the country’s poor human rights record. Like in Australia, this has effectively ended the policy overnight.

The UK Director of Human Rights Watch welcomed the decision, stating on X (formerly Twitter) that” we (HRW) welcome the UK Supreme Court decision that the UK Rwanda asylum deal is unlawful. As we and many others have made clear, Rwanda is not a safe country to send asylum seekers to and now the highest court in the UK has confirmed this.”

The decisions provided both government with an opportunity to alter their policies in a way consistent with international law. Unfortunately, the early reaction from both governments has shown this isn’t a priority. 

Under pressure from the right-wing opposition, the Albanese Government immediately passed legislation that imposes curfews and ankle bracelets on people released from immigration detention and will make breaching visa conditions a criminal offence. While some of those released do have criminal records, the vast majority don’t, which makes this heavy-handed approach and demonises this group of people.

The Human Rights Law Centre’s acting Legal Director, Sanmati Verma responded to the new laws, saying that “additional restrictions and criminal penalties on people released after years of unlawful detention” would be “substituting one form of punishment for another”.

The new legislation has already been challenged in the courts and human rights groups have warned of further court battles. The Director of Human Rights for All, Alison Battison has argued that new laws may be unconstitutional and amounts to “extrajudicial” punishment.

UK Prime Minister Rishi Sunak reacted to the Rwanda decision by promising to introduce emergency legislation that will “confirm Rwanda is safe” and that change was needed to prevent the “merry-go-round” of legal challenges to the policy. 

The Prime Minister has also said the government is working on a “new treaty” with Rwanda that attempts to sidestep legal challenges and has even threatened to block or leave the European Convention on Human Rights.

Both responses are disappointing and represent missed opportunities. There is also wisdom in the idea that actively circumventing court decisions isn’t just a bad look, but also probably means the policies in question are not fit for purpose. The courts have signalled that policies on refugees need to be in-line with international law and humane and both governments would do well to listen.

Australia in particular needs to change. It is infamous for its harsh border policies and has inspired other governments to do the same. In April, the United Nations High Commissioner for Refugees, Filippo Grandi criticised Australia’s border policies as “myopic” and was “troubled” that the Australian model for asylum seekers was being copied elsewhere, including in the UK.

On being elected in 2022, Australian Prime Minister Anthony Albanese claimed he is “tough on borders without being weak on humanity”. Now is the time to prove it. Australia’s border policies aimed at deterring asylum seekers should be replaced with a model consistent with international law.

If detention is to occur, it should only happen in Australia and only while asylum applications are processed. These applications should be processed quickly and transparently to reduce time in detention. Other inhumane and legally questionable policies, such as boat tow backs and on-water asylum assessments, should be replaced with processes consistent with the Convention Relating to the Status of Refugees. Australia has the advantage of relative isolation, which would allow the government to effectively police its waters while managing any boat arrivals legally and humanely.

The UK is not as lucky, dealing with boat arrivals across the English Channel. But any solution needs to be humane and legal. This means moves to circumvent international law through legislation, a treaty with Rwanda or by leaving the ECHR is simply unhelpful. Such moves would alienate regional partners and will not stop boat arrivals.

The solution is for the UK to work closely with its European partners, particularly France, to monitor and police boat arrivals, and process asylum claims quickly so detention is only required while claims are processed. It’s important to note that most people seeking asylum in the UK are found to be legitimate refugees. These people should be welcomed as per their rights, not demonised.

The courts in the UK and Australia have caused a headache for both government’s in their pursuit of harsh border policies to tackle boat arrivals. But this should be seen as an opportunity, not a hurdle. 

Both should take this opportunity to reform their border policies so they are legal and humane. This isn’t just the right thing to do, but it will also prevent immense human suffering and put both countries on the right side of history.

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