Grünhagen, Nadine

Provan, Jack

English

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UK-Rwanda Deal Pushed ThroughParliamentNadine Grünhagen, Jack Provan 2024-05-24T08:00:20On 25 April 2024, the long-awaited Safety of Rwanda (Asylum and Immigration)Act 2024 (Safety of Rwanda Act) received royal assent in the United Kingdom(UK). This followed months of legislative debate culminating in a bruising extendedparliamentary session on 22 April 2024 in which the House of Lords, Britain’sunelected second parliamentary chamber, finally capitulated shortly after midnight,dropping their objections to the Bill’s legal declaration that Rwanda constitutes a“safe country” for the purposes of non-refoulement. This legislation was introducedby the UK government following a Supreme Court decision in November 2023 thatthe UK’s controversial Rwanda scheme (a topic previously explored here) wasinconsistent with international law, particularly the European Convention on HumanRights (ECHR).Since Brexit and the UKs resulting withdrawal from the European Union’s (EU)readmission agreements with third countries, the number of people seeking asylumin the UK has increased by 60%, leading the UK government to return to restrictiveasylum policies. Consequently, the government passed the Nationality and BordersAct in 2022 and the Illegal Migration Act in 2023 which “goes considerably furtherthan any previous immigration bill” and has been condemned as “an affront tohuman dignity” that “would amount to an asylum ban”. This blogpost seeks toexplore the legal landscape of the UK’s Rwanda scheme which ultimately led to theadoption of the Safety of Rwanda Act, highlighting the specific legal challenges withthe scheme and the difficulty of reconciling the UK’s new legislative position with theprevailing consensus in international law (a theme previously explored in the Bofaxseries).The Prior Legislative Basis of the Rwanda AgreementThe purpose of the Illegal Migration Act is to prevent and deter unlawful migrationby categorically deeming people arriving illegally in the UK inadmissible for asylumapplications, irrespective of valid claims to asylum under international law. Thus,even if asylum seekers cannot be returned to their home country due to securityconcerns, their asylum claim will not be considered by the UK, but they will be sentto safe third countries instead. As the UK’s former Home Secretary recognized, thisnew law “push[es] the boundaries of international law”.Turning away an individual to a territory where their life or freedom would bethreatened on account of their race, religion, nationality, membership in a particularsocial group, or political opinion is prohibited by the principle of non-refoulementas enshrined in Article 33 of the Refugee Convention. It also follows from Article 3ECHR (prohibition of torture, inhumane or degrading treatment or punishment) which- 1 -also extends to “indirect refoulement” – an expulsion to a State from where migrantsmay face further deportation without a proper assessment of their situation.According to Article 31 of the Refugee Convention, refugees who enter a hostcountry illegally must not be punished for this act. Thus, an application for asylummust not depend on the legality of the entry. The UK government, however, justifiesthe compliance of the Illegal Migration Law with Article 31 of the Refugee Conventionwith a rather formalistic interpretation by stating that the Article only refers to people“coming directly” from a country of persecution, excluding people who passedthrough other safe countries (see Nationality and Borders Act, s.37, Article 31(1)(1) and here). This interpretation of Article 31 is a highly dubious one, even called a“misunderstanding” (para 12) of the Article by the United Nations High Commissionerfor Refugees (UNHCR),a view which has been acknowledged (p.37) by the UKHouse of Commons Research Library.. While some have argued that the ECtHRhas softened its stance on this issue since N.D. and N.T. v. Spain, it is important tonote that this case was rooted not on Article 3 but Article 4, Protocol 4 of the ECHR(collective expulsions), and thus not indicative of a general change in the rule.Nevertheless, returns or transfers to safe third countries may be permissible ifcertain thresholds, notably adherence to Refugee Convention rights, are met.To this end, the Illegal Migration Act lists 57 “safe” countries where people canbe transferred to if a transfer agreement with the UK was concluded. To datesuch an agreement has only been reached with Rwanda. The first flight, whichwas scheduled to depart in June 2022, was blocked at the last minute by aninterim measure of the ECtHR. Shortly after, the Court of Appeal deemed Rwandaunsuitable as a safe third country due to flaws in its asylum procedures which raisedconcerns about the potential wrongful return of individuals to countries where theymay face persecution and found a violation of Article 3 ECHR.The Supreme Court Judgment of 15 November 2023While the Supreme Court has been known to encroach on key governmental policyareas in the recent past, a change in President in 2020, as well as a longstandingtradition of deference to executive powers in the UK legal system, had led manyto believe this case could sway in the government’s favour despite the clarity ofinternational law on the matter. After all, this was the outcome of the DivisionalCourt’s initial decision.However, the Supreme Court did not find the Rwanda policy to be lawful. Thatis because there are several pieces of legislation in the UK, such as the Asylumand Immigration Appeals Act 1993 and the Human Rights Act 1998, which directlytranspose the Convention principle of non-refoulement into domestic law (paras27-28). Conversely, the UK-Rwanda Agreement itself was neither binding norjusticiable and did not confer any individual rights (para 12).Rightly, the Court found that any assessment must seek to uncover a real risk ofill-treatment, emphasizing that relying on the Rwandan government assurancealone is insufficient. What matters, as the ECtHR confirmed in Othman v UK, ishow things operate in practice. Assurances themselves are not sufficient if they- 2 -can be countered by evidence to the contrary (paras 46-47). The Supreme Court,in assessing this evidence, found little ambiguity. The weight of Rwanda’s humanrights record (paras 75-76), UNHCR observations on the shortcomings of Rwanda’sasylum policy (paras 77-94), as well as severe and well-documented UNHCRconcerns surrounding a similar asylum agreement between Israel and variousAfrican states including Rwanda (para 60), in which Rwanda failed to uphold itsobligations of non-refoulement (paras 95-100), were enough to convince the Courtthat the UK government was wrong to rely solely on assurances, and to avoidprobing Rwanda on its asylum practices in the negotiation of the Agreement (para60). In justifying the overturning of the Divisional Court ruling, the Supreme Courthighlighted that the Divisional Court did not lend enough weight to those concernsby focusing on the UK-Rwanda Agreement in isolation of that evidence, and furtherevidence of refoulement generally (para 62).The Safety of Rwanda Act, and International v Domestic LawFollowing the judgment’s publication, the UK government announced plans to updatethe policy to ensure its “lawfulness” while claiming to respect the Court’s ruling. Buthow could the UK government, through Parliament, unilaterally alter the reliability ofhuman rights and asylum processes in Rwanda?There are two steps to the government’s approach: first, formalising the Agreementas a binding Treaty, and second, enacting the aforementioned Safety of Rwanda Actostensibly confirming the safety of Rwanda. Unlike the previous Agreement, the newTreaty enjoys the status of domestic law and is therefore enforceable in UK courts.The British government believes that the enforceability of the non-refoulementprinciple – and a new confidential complaints committee – should quell the SupremeCourt’s fears of the possibility of ill-treatment. The Safety of Rwanda Act – whichwas condemned in its debate stage by the UK’s Joint Committee on Human Rightsand the UN High Commissioner for Human Rights – obligates immigration officialsand courts in the UK to treat Rwanda as a safe country (s.2). Many have pointed outthat this essentially overturns a factual determination of the Supreme Court, muchlike if an Act of Parliament were to determine that the sky is green, not blue. Indeed,since indirect non-refoulement is based on a factual assessment of real risk, nostatute can change a determination of safeness, which is a normative standard . Asthe UNHCHR warned in his criticism, “you cannot legislate facts out of existence.”Further criticisms of the Act include the absence of exemptions for vulnerable groupsand victims of modern slavery, and the Act’s effect on the rule of law, including theprohibitively high threshold applicants must satisfy to be eligible for lodging appealsagainst decisions to remove them. These concerns were raised frequently by theHouse of Lords, and were all rejected by the UK’s elected chamber.The UK legal system is built on parliamentary sovereignty, giving the parliament thepower to create or revoke any law, and as a result UK courts are not authorised todeclare an Act of Parliament unlawful. This presents an interesting – and perhapsunsolvable – dilemma: what if a valid Act of Parliament directly contradicts a non-derogable norm of customary international law? Given the strength of parliamentarysovereignty in the UK, early commentators have noted it is possible that UK courtswould have no choice but to follow such legislation. The counterargument goes that,- 3 -since Parliament declaring the sky green does not make it so, legislation on mattersof fact may not fall under the scope of parliamentary sovereignty. An interestingclash between the UK constitution and the global legal order of asylum law may beon the horizon.ConclusionThe House of Lords – the final barrier to the statute’s enactment – has nowcapitulated, as it often does when it reaches an impasse with parliament’s electedchamber. However, the statute’s issues do not end there. Immediately followingpublication of the Act’s first draft, the UK Immigration Minister resigned from hispost, saying the Bill will not end legal challenges to the scheme. On this point,international lawyers may reluctantly agree with him (without adding, as he does,that the Bill ought to go even further). The Act as adopted did not meaningfullyconfront those shortcomings. Since enactment, both the UN High Commissioners forRefugees and Human Rights have once again criticised the Act’s blatant disregardfor the UK’s international obligations. Furthermore, the UK’s FDA Civil Service Unionhas already sought a judicial review of the government’s plans, citing concerns thatcarrying out their jobs under the new Act will surely lead to a breach of their owninternational obligations.Following the adoption of the Act, the UK Home Office already began detaininginvoluntary asylum seekers from 1 May 2024, who are due to leave the UK on thefirst flight to Rwanda in July. Per the statute, this will occur regardless of ECtHRintervention since the statute explicitly disapplies Strasbourg jurisprudence from therelocation scheme (s.3) and gives government ministers broad powers to ignoreinterim measures (s.5) such as the one issued in June 2022, placing a significantamount of discretion for the scope of international human rights in the hands of theexecutive. Such disregard of its international obligations in order to reduce migrationis perhaps further proof of the UK’s trend of disintegration in the internationalcommunity. It is to be hoped that the UK has learned from its exit from the EU andreconsiders its trend of increasing isolation on the world stage. The “Bofaxe” series appears as part of a collaboration between the IFHV andVölkerrechtsblog.- 4 -

UK-Rwanda Deal Pushed Through Parliament

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UK-Rwanda Deal Pushed Through Parliament

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