"Get that Judge out of my sight": The Safety of Rwanda (Asylum and Immigration) Bill
Posted on: 6 March 2024 by Professor Valsamis Mitsilegas in Blog
The Rwanda policy to send asylum seekers from the UK to a country in Africa for reception and determination of their claims is a perverse result of Brexit.
As long as the UK was part of the EU, the Dublin system of allocating responsibility for asylum seekers across the then 28 Member States diminished the possibility of secondary movements within the area (notwithstanding the generally weak application of the system). The UK’s departure from the EU and its inability to enter into a new similar agreement with France has resulted in those asylum seekers applying in the UK but who have travelled through France to be able to have their claims determined in the UK without the risk of being sent back to France. The UK Government’s ‘solution’ to this ‘problem’ is to send them to Rwanda. The project is not original nor a concoction of UK politics. A similar project was contemplated in Denmark in 2021 but abandoned in 2023 for reasons which were never fully fleshed out (about the policy of Denmark see here). It seems that Rwandan officials had been suggesting to a variety of EU states (and clearly the UK) the possibility as early as 2020.
Uninhibited by EU asylum law, the UK government decided to move ahead with the project. In April 2023, the UK Government reached an arrangement (not in the form of an international treaty, see here) with the government of Rwanda entitled Migration and Economic Development Partnership (MEDP). The legal term for the arrangement was a Memorandum of Understanding which expressly rejected a legally binding nature (Article 2.2) (about its incompatibility with international law see here). An addendum to this instrument is similarly non-legally binding. The MOU provided that asylum seekers arriving in the UK would be sent to Rwanda even with no link to that country where their asylum claims would be determined. Under the MEDP Rwanda agreed to comply with international refugee and human rights law.
The UK authorities then began to select asylum seekers to be sent to Rwanda under the MOU. The UK government’s policy on Rwanda had stirred up much public debate about its legality and morality. Thus, it came as no surprise that when the Government sent out removal directions to asylum seekers to be sent to Rwanda, all challenged the legality of their envisaged removals. At first instance, the UK court held that before carrying out any removal to Rwanda the authorities must undertake a proper consideration of the circumstances of each individual claimant but that the policy was lawful. The applicants appealed against the decision which was then reconsidered by the Court of Appeal. The court held that the policy was unlawful as Rwanda was not a safe country to which to send asylum seekers as there was a real risk that they would be subject to torture, inhuman or degrading treatment there, contrary to the European Convention on Human Rights.
The authorities appealed to the final instance in the UK, the Supreme Court which handed down its judgement on 15 November 2023. (For an analysis, see Mitsilegas on this blog). It concurred with the Court of Appeal that Rwanda was not a safe country as a destination for asylum seekers thereby blocking the sending of any of them there. In reaching its decision, the Supreme Court relied heavily on the empirical evidence presented by UNHCR, commenting favourably on the authoritative nature of UNHCR’s position under the Refugee Convention.
The UK authorities were not in agreement with the Supreme Court. On the same day as the judgement the Prime Minister announced that he would immediately undertake two actions: first enter into a legally binding agreement with Rwanda (one of the weaknesses identified by the Supreme Court) and secondly introduce new (emergency) legislation which would enable Parliament to confirm that, in accordance with the new treaty, Rwanda is a safe country to which to send asylum seekers. The new agreement with Rwanda was adopted in December 2023. The Safety of Rwanda (Asylum and Immigration) bill was presented to Parliament on 7 December 2023. At the time of writing, it is before the Committee Stage in the House of Lords.
The new agreement expressly prohibits the sending of asylum seekers who have been transferred by the UK to Rwanda for their reception and determination of their asylum claims to be sent anywhere except back to the UK. This provision is intended to answer the Supreme Court’s concern about onward refoulement of asylum seekers from Rwanda to countries which are not safe (this was a major component of the UNHCR submissions). But the UK authorities understood that even this new agreement in the improved form of a legally binding treaty would possibly be insufficient to convince the UK courts (let alone the European Court of Human Rights) that it would be lawful to send asylum seekers there.
Indeed, in a report of 7 February 2024, the Joint Committee on human rights of the two Houses of Parliament considered that there had been insufficient developments in Rwanda for it to be considered a safe country, particularly so soon after the Supreme Court had considered its status unfavourably. Further, as regards the safeguard that asylum seekers could be removed nowhere except back to the UK, the report notes that the necessary measures and infrastructure for such returns had not been contemplated or put in place.
In order to circumvent any further judicial scrutiny of the Rwanda policy, the UK authorities decided to legislate against judicial consideration of claims by persons subject to the policy. By excluding the courts from judicial review, the authorities intend that they will be able, by ministerial decision on the safety of Rwanda, finally to send asylum seekers there. This legislation is the Safety of Rwanda (Asylum and Immigration) bill which permits the Government to determine without judicial review that Rwanda is a safe country as a destination for asylum seekers. Critics of the bill suggest that it is unconstitutional in particular in creating a legal fiction to bypass judicial review (the Law Society, cited in the Joint Committee’s report page 17). The Bill has been criticised as being contrary to the Rule of Law because it would amount to a legislative usurpation of the judicial function, contrary to the UK’s constitutional understanding of the separation of powers, which requires the legislature to respect the essence of the judicial function (on the point see Hunt).
The bill does not stop at requiring the UK courts to consider Rwanda a safe country for these purposes. It also prohibits them from hearing challenges to the safety of Rwanda. It further prevents any court from considering whether a claim that a person will be removed to Rwanda is in breach of the UK’s international law obligations; that Rwanda will not process their asylum claims properly or that Rwanda will not comply with the terms of the treaty. Had this legislation been in place when the Supreme Court was presented with the challenge which it held successfully, that challenge would have been unlawful and the Supreme Court unable to hear it.
This aspect of the bill is problematic for the UK’s commitments under the ECHR, in particular Articles 2 and 3 in conjunction with Article 13 (the right to an effective remedy). The UK authorities answer to this challenge has been not to exclude the possibility of a court making a Declaration of Incompatibility under the Human Rights Act 1998 which incorporates the ECHR into UK law. The problem, however, is that a Declaration of Incompatibility does not have binding effect so it does not fulfil the requirement of an effective remedy under the case law of the ECtHR.
A venue for challenge is included in the bill for claims “based on compelling evidence relating specifically to the person’s particular circumstances rather than on the grounds that the Republic of Rwanda is not a safe country in general”. However, this is intended to be an extremely narrow exception, indeed so narrow that many experts who gave evidence to the Joint Committee considered that it does not fulfil the requirement of an effective remedy under the ECHR.
The bill also excludes the application of the Human Rights Act provisions which require respect for the ECHR by public authorities and compliance with the case law of the ECtHR. Finally, the bill rejects the application of Rule 39 interim measures from the ECtHR as regards Rwanda removals. Although expert evidence provided to the Joint Committee was strongly of the opinion that such interim measures are binding on the authorities to which they are addressed, the bill will reverse this situation, a Minister of the Crown will decide whether the UK will comply with interim measures ordered by the ECtHR. National courts are prohibited from having regard to interim measures ordered by the ECtHR unless confirmed by the Minister. In other words, get that judge out of my sight!
Keywords: research, law, asylum, immigration.