Taken together, the two ways through which the Government is attempting to resurrect its flailing asylum agreement with Rwanda – a new treaty and emergency legislation – are a serious threat to the human rights and safety of refugees, the UK’s commitment to the European Convention on Human Rights (ECHR) and the independence of the British judiciary.
The Government’s plans follow from the UK Supreme Court’s conclusion that, after looking impartially at the evidence, Rwanda is not a safe country to send asylum seekers to. The Supreme Court found that Rwanda has a long history of misunderstanding its obligations to refugees and does not comply with those obligations effectively – in some instances, even wilfully disregarding them. Therefore, there was a real risk that people could face serious harm in Rwanda. The Government’s plans do not satisfactorily address these detailed and rigorous findings and are a blatant attempt to prohibit any further independent judicial assessment of this risky policy.
Starting with the treaty, Ministers and officials have tried their best to change the content and wording of the agreement in light of the Supreme Court’s concerns. Paragraph 85 of the Supreme Court’s judgment, for example, highlighted the 100% rejection rate of asylum claims from Afghanistan, Syria and Yemen in 2020-22 – based on Rwanda’s view that asylum seekers from the Middle East should remain in the region. In response, Article 3(1) of the treaty requires decisions to be made on a non-discriminatory basis without regard to nationality.
Further, paragraph 87 of the judgment evidenced Rwanda’s practice of refoulement – that is, returning people to countries where they could be seriously harmed or killed – up to the present day. Indeed, during the negotiations for the original deal, six people were unlawfully returned to unsafe countries. In response to these concerns, Article 10(3) of the treaty states that nobody may be removed from Rwanda, except to the UK, even if their asylum application is unsuccessful.
Moreover, based on the Supreme Court’s concerns about the independence of the Rwandan judiciary in the appeals process, Annex B paragraph 4.2 of the treaty establishes a separate Appeal Body which requires a Rwandan and Commonwealth president and co-president who will appoint judges to sit on the Body.
As far as words go, these are good ones. But the point of the Supreme Court’s decision was never the words. The point was whether Rwanda could be relied on to understand and adhere to those words. Looking at the evidence provided by all parties, including the Government, the Supreme Court concluded that the answer was no. Paragraph 88, for example, found that Rwanda had “a culture of, at best, insufficient appreciation by … officials of Rwanda’s obligations under the Refugee Convention, and at worst a deliberate disregard for those obligations.”
This evidence has not changed since the Supreme Court’s judgment. Therefore, the commitments set out in this treaty do not resolve the most important question of whether Rwanda will in fact comply with its obligations.
What is more, the Supreme Court was clear that making Rwanda safe would require structural and cultural change within Rwanda’s judicial system. For example, paragraph 105 states that:
“We accept … that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity- building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”
It is highly unlikely that these changes have happened in less than one month – meaning that there remains a real risk that people will be seriously harmed by this policy.
Making matters worse, the Government’s emergency legislation is a blatant attempt to prevent any further independent judicial scrutiny of its policy, which guts the effective protection of basic human rights and threatens the UK’s commitment to the integrity of the European Court of Human Rights.
Clause 2 of the Bill, for example, requires all decision makers to conclusively treat Rwanda as a safe country, despite the Supreme Court’s decision. In effect, this tries to put a fiction into British law – a fiction that will put innocent people’s lives and safety at risk. Worse, Clause 2(3)-(4) bans judges from considering an appeal or judicial review on the basis that Rwanda is an unsafe country.
Clause 3 continues this regressive trend by disapplying much of the 1998 Human Rights Act 1998 (HRA). Judges will not, for example, be allowed to interpret the legislation so that it respects the ECHR (Clause 3(4)), and the Home Office will not have a legal obligation to respect the ECHR when making decisions about removing people to Rwanda (Clause 3(5)).
Instead, the only safeguard against deportation to Rwanda is for individuals to argue based on “compelling evidence” that their particular circumstances create a “real, imminent and foreseeable risk of serious and irreversible harm.” This is a very high threshold – and with the difficulty accessing legal advisers in immigration and asylum – the result is that many people will struggle to successfully launch a challenge and face real risks of serious harm.
Finally, Clause 5 requires judges to ignore any interim measures of the European Court of Human Rights and, instead, gives an absolute right to the Government to decide whether the UK will adhere to them. An interim measure is an order requiring the Government to temporarily do or not do something to secure the protection of human rights. Interim measures are granted only exceptionally when individuals face a real risk of serious and irreversible harm. For example, in 2022 two British citizens – Aiden Aslin and Sean Pinner – secured an interim measure against Russia ordering Russian separatists in occupied Ukraine to execute them.
This Clause undermines the independence of British judges and weakens the UK’s commitment to the integrity of the European Court of Human Rights. A mature democracy committed to the rule of law should not compel its judges to ignore orders designed to secure people’s human rights.
It is little wonder that the Home Secretary is unable to certify that the Bill is compatible with the ECHR – indeed, the Bill is specifically crafted to remove and weaken the ECHR’s protections.
The whole Rwanda saga has been a sorry episode from start to finish. Expensive – costing £240m so far, with £50m extra expected – unethical and unlawful, the policy has been an exemplar of poor decision-making that will be taught for years to come. Core principles of which British governments should be proud champions – human rights, the rule of law, judicial independence and the liberal international order – have been critically undermined and with nothing positive to show for it. The world’s most persecuted refugees, the British people and the UK’s principles deserve better than this.
Lee Marsons is a Senior Researcher at the Public Law Project.
Views expressed in this article are those of the author, and not necessarily those of Bright Blue.
