Dr Helen O'Nions, Associate Professor NLS https://www.ntu.ac.uk/staff-profiles/law/helen-onions
Jubilation from those working to represent the interests of asylum seekers following the Supreme Court’s Rwanda ruling has turned to dismay. Immediately, some senior conservative figures immediately stated their preferred approach of ignoring the rule of law and deporting anyway. Within three weeks of the decision and a brief trip to Rwanda, the new Home Secretary agreed a fresh treaty supposedly addressing the extensive concerns of the five Supreme Court justices. Now we have emergency, counterfactual legislation that declares Rwanda safe, ousting the Court’s jurisdiction to rule on the lawfulness of removals.
Back in 2004, the then Labour Government attempted to oust the court’s jurisdiction to review asylum decisions in the Asylum (Treatment of Claimants) Bill. The proposals, described as a ‘constitutional outrage’ by Professor Vernon Bogdanor, were eventually scrapped following an unusual intervention by the then Lord Chief Justice, Lord Woolf. If enacted, which seems inevitable given the Government’s majority and willingness to rely on dormant peers, the Safety of Rwanda Bill will go much further, preventing UK courts and tribunals from delaying or preventing a person’s removal to Rwanda, on the grounds that they are at risk of being removed to an unsafe country. Additionally, it disapplies elements of the Human Rights Act 1998, meaning they cannot be factored into court or tribunal decision making.
The workability of the Rwanda scheme is beyond the scope of this blog article, suffice it to say, there are significant concerns over capacity and the ability of Rwanda to process more than a handful of those arriving in the UK via illegally. The Home Office has identified that Rwanda has initial capacity for only 200 people. A review found that Rwanda currently processes 228 asylum applications each year, compared to over 19,000 in the UK. It is estimated that 46,000 arrived to the UK by boat in 2022. The Migration and Economic Development Partnership (MEDP) between the UK and Rwanda was completed in April 2022 at an initial cost of £120 million (a further £120 million has additionally been advanced).
This is against a backdrop of extensive delays in decision-making and the highest ever rate of refugee recognition in the UK. Three-quarters of those whose claim receive a determination are successful, a further 30-40% of those who appeal will succeed. Thus, most of those designated for mandatory detention and removal will possess a well-founded fear of being persecuted (under Article 1A Refugee Convention 1951). To be clear, the plans mean detaining and removing refugees, not simply ‘illegal’ migrants.
The principle of non-refoulement is guaranteed by the United Nations 1951 Refugee Convention, as well as UK legislation. It requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The obligation has long been interpreted as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country.
To qualify as safe Rwanda must accordingly be a country in which the principle of non-refoulement will be respected. The original MEDP also contains a statement that there are no substantial grounds for believing that removals will breach the absolute obligation of Article 3 of the European Convention (enacted into UK law under the Human Rights Act) which prohibits torture or inhuman and degrading treatment.
The majority of the Court of Appeal and all the Supreme Court judges found substantial grounds for believing that relocation to Rwanda would expose refugees to a real risk of ill-treatment and refoulement.
The Supreme Court accepted that predictions of future risk could be evidenced by past failings. Recent reports of extrajudicial killings, deaths in custody, forced disappearances and torture, and a generally poor human rights record were initially ignored by ministers who relied on a desk-based review and two short visits by officials. In one particularly serious incident five years ago Rwandan police fired live ammunition at refugees protesting over cuts to food rations, killing at least 12 people. Since Rwanda has ratified many international human rights conventions, this must raise serious questions as to ability and willingness to adhere to international obligations.
The Court noted serious procedural deficiencies, including summary rejection of asylum claims without reasons, and poor quality, generic refusal letters, along with significant concerns over judicial independence. Most alarmingly, evidence from the UNHCR revealed a 100% rejection rate for nationals of Afghanistan, Syria, and Yemen, from which asylum seekers relocated may well emanate.
The Court found that Rwandan officials did not understand the legal meaning of refoulement and noted UNHCR evidence of at least 100 allegations of refoulement and threatened refoulement. In conclusion, their lordships found “at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention.” This misunderstanding is apparently shared by government ministers here. The then immigration minister, Robert Jenrick, appeared entirely ignorant of the accepted wisdom that it is almost impossible for asylum seekers to enter the UK lawfully, stating “The law says you can’t enter the country illegally. If you or I crossed an international border, we literally broke into another country, we would expect to be treated very seriously”. This is the same Jenrick who ordered the removal of cartoon murals at a family detention facility. He has since resigned as Immigration Minister stating that the emergency legislation does not go far enough to ensure large-scale removal proceedings continue without judicial oversight.
Within three weeks, a new treaty was announced by a new Home Secretary James Cleverly was keen to downplay the Court’s concerns, pronouncing: “Rwanda has now established a strong reputation for the humane and professional administration of refugees and migrants.” The main addition to the new treaty is an independent monitoring committee which will have oversight of reception and processing, and treatment and support of claimants for up to five years after they receive a decision. The committee will implement a complaints system and a new appeals body will be established with judges from Rwanda and other commonwealth countries.
The treaty does not attempt to address several significant shortcomings, and, as such, the risk of refoulement remains. The safety of Rwanda for refugees depends on wholesale change, both to the asylum support system and to judicial and political processes. In the Supreme Court’s own assessment “The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring” The Safety of Rwanda (Asylum and Immigration) Bill, now entering the Committee stage, declares Rwanda to be safe irrespective of fact and judicial opinion to the contrary. It will soon see critical attention in the upper chamber where peers have expressed grave concern over recent asylum legislation, albeit with little impact. The United Nations High Commission for Refugees regards the proposals as a breach of international law and a denial of the right to seek asylum. Unusually, the Bar Council and Law Society have also made public statements against the plans. Ministers assert that the Bill confirms the fundamental importance of Parliamentary Sovereignty to which other constitutional principles must defer. Yet the Bill has progressed by only 44 votes in the Commons and will face extensive opposition in the Lords which ultimately can only delay its progress. There was no public consultation on the proposals and previous consultations suggest considerable opposition to restrictions on the right of asylum. The Safety of Rwanda Bill undermines the constitution through its contempt for the rule of law, international obligations, and fundamental rights. It remains to be seen whether senior judge’s will accept this incursion. The rule of law and judicial independence now hangs in the balance all because of one man’s ill-advised pledge to ‘Stop the boats’.
Further Reading
On the application of AAA (Syria) and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent); [2023] UKSC 42
Alicia Fitzgerald, Huffington Post ‘Lee Anderson Says Government Should Ignore The Law And Send Asylum Seekers To Rwanda: The startling remarks came after the Supreme Court deemed the scheme to be illegal’
The Home Office ‘Review of asylum processing. Rwanda: country information on the asylum system’ (May 2022)
UK Parliament ‘Safety of Rwanda (Asylum and Immigration) Bill’
The Bar Council ‘Rwanda Emergency Law – Bar Council Reaction’
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