THE ‘RWANDA PLAN’: WHAT’S NEXT?

9 Jan 2024

In this article pupil barrister Liam Evans outlines developments since the Supreme Court’s decision in R (AAA and others) v Secretary of State for the Home Department [2023] UKSC 42, which held that the UK Government’s policy of relocating asylum-seekers to Rwanda was unlawful. Liam is currently in his first six. He will be accepting instructions in family, housing and inquests from April 2024.

In the Supreme Court David Chirico acted for the UN High Commissioner for Refugees instructed by Joanna Ludlam at Baker McKenzie. Ben Bundock acted in the team in the Divisional Court.

Angelina Nicolaou represented claimant ASM as part of a legal team instructed by Jed Pennington of Wilsons Solicitors, London.

The Rwanda agreement

It has been over 18 months since the UK government announced it had entered into a bilateral agreement with the Government of Rwanda (the Migration and Economic Development Partnership (‘MEDP’)). Under the agreement, asylum-seekers who arrive in the UK “illegally”[1] will be sent to Rwanda and their asylum claims will be processed there. The Government has already paid £140 million under the plan.[2] No asylum-seekers have been sent to Rwanda under this scheme owing to a successful legal challenge.

Supreme Court judgment

In a landmark judgment handed down on 15 November 2023, the Supreme Court held that the Government’s Rwanda policy was unlawful. The court found there were:

[S]ubstantial grounds for believing that there is a real risk asylum seekers sent to Rwanda would be 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.[3]

This risk, the Supreme Court concluded, violated the prohibition on “non-refoulement” enshrined in Article 33 of the Refugee Convention, the European Convention on Human Rights (“ECHR”) and various pieces of domestic law.

In reaching their decision, the Supreme Court noted they had received evidence highlighting concerns regarding: the general human rights situation in Rwanda (specifically the shooting of 12 refugees by police in 2018); the adequacy of Rwanda’s asylum system; instances of refoulement and threatened refoulement, of which at least 100 had been cited by the UNHCR; the Rwandan government’s understanding of refugee law, and the breakdown of a similar arrangement between Rwanda and Israel.

In the light of the evidence provided, the Supreme Court concluded that “significant changes need to be made to Rwanda’s asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement.”[4]

The Government’s response

Undeterred by the Supreme Court judgment, the Government quickly confirmed it planned to pursue the Rwanda policy. In a press conference held on 15 November, the Prime Minister announced the Government was finalising a new treaty with Rwanda, and emergency legislation would be introduced “to confirm that, with our new Treaty, Rwanda is safe.”[5]

The new Treaty, signed on 5 December 2023, incorporates large parts of the MEDP (which was thoroughly scrutinised by the Supreme Court, leading to the judgment that it was unlawful).  The Treaty seeks to address the Supreme Court’s concerns by providing, for example, that any person sent to Rwanda under the treaty will be entitled to remain there even if their claim for refugee status or humanitarian protection is rejected. It also provides for other improvements to the Rwandan asylum system, including a guarantee of legal representation and a new appeal body “made up of judges from a mix of nationalities.”[6]

On 6 December 2023, the Government published the Safety of Rwanda (Asylum and Immigration) Bill (‘the Bill’).[7] The Bill would, if enacted:

• Require decision-makers, including the courts, to “conclusively treat the Republic of Rwanda as a safe country” (clause 2);

 

• Limit the ability of courts and tribunals to consider a review or appeal of any removal decision on the grounds that Rwanda is not a safe country (clause 2(3));

 

• Disapply numerous provisions in the Human Rights Act 1998 (sections 2, 3, 6, 7, 8 and 9) that give effect to and make enforceable ECHR rights in domestic law (clause 3);

 

• Permit a Minister, and a Minister only, to decide whether to comply with an interim remedy granted by the European Court of Human Rights (ECtHR) (clause 5).

Under the Bill in its current form, the only avenues available for legal challenge appear to be: (1) a declaration of incompatibility under section 4 HRA 1998, or (2) a challenge by an individual where there is “compelling evidence relating specifically to the person’s particular individual circumstances” showing Rwanda is not a safe country to send them to. The latter route of challenge will be important for those, such as LGBTQ+ asylum seekers, who may be able to prove they are at risk of ill-treatment in Rwanda.[8]

Responses to the Bill

The Bill has been widely criticised. In a joint briefing ILPA, JUSTICE and Freedom from Torture said that the Bill “legislates a legal fiction, reversing the Supreme Court’s factual assessment of the risk of harm in Rwanda, without properly addressing the Court’s concerns about the Rwandan asylum system and ousting our domestic courts’ jurisdiction to consider the issue.”[9]

These criticisms were mirrored by the Joint Committee on Human Rights, a cross-party Select Committee in Parliament, which raised concerns that the Bill would breach the UK’s obligations under the ECHR and international law. The Committee noted that requiring courts to find Rwanda is a safe country would “expose individuals to a risk of refoulement, in breach of fundamental human rights standards” and “be inconsistent with the express right to an effective remedy under Article 13, which would be undermined by blocking access to the courts.”[10] It is notable that the Home Secretary has himself made a statement under section 19(1)(b) of the Human Rights Act 1998 (‘HRA’), meaning he was unable to certify that the Bill is compatible with Convention rights.

Next steps

The Bill passed its second reading on 12 December 2023 and awaits scrutiny by a Committee of the whole house. Given that the Prime Minister has said he wants to get “flights off as soon as practically possible”,[11] the next stage may take place fairly soon after Parliament returns from recess on 8 January 2024.[12]

If enacted, the Bill is likely to face a legal challenge. The Bill, however, currently seeks to preclude the Courts from considering the question of whether Rwanda is a safe country, via an attempted ‘ouster clause’. This may raise constitutional questions about whether this clause is to be accepted or not. The Supreme Court has previously ruled to narrowly construe an ouster clause in R(Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 on the basis that the clause was not sufficiently explicit to exclude judicial review. The Supreme Court made a number of significant comments about the rule of law and the role of the courts which may apply with similar force to this Bill.

Looking further ahead (if domestic challenges fail), the Bill would, if enacted, set the UK on a collision course with the ECtHR. If a challenge is brought to the ECtHR (which may seem likely given the criticisms levelled at the Bill) and the ECtHR finds the Bill is incompatible with the ECHR this could, in Lord Sumption’s words, lead to “a crisis in our relations with the Council of Europe and Strasbourg court.”

Any crisis in relations with the Council of Europe and Strasbourg would be a heavy price to pay for a policy that may not even achieve the Government’s aim of “stopping the boats”.[13] As far back as April 2022, the Permanent Secretary at the Home Office, Sir Matthew Rycroft wrote to the then Home Secretary, Rt Hon Priti Patel, stating: “Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money”.[14]

Conclusion

The attention and energy which the Government appears to be devoting to the second Rwanda plan occurs within a landscape where there remains a significant backlog of undetermined asylum claims[15], and recent reports show that over half of the people seeking asylum are unable to access a legal aid lawyer[16]. These are significant issues which warrant attention and consideration given the impact this has upon some of the most vulnerable in society.

 

[1] This is the terminology used in the memorandum. See Home Office, Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement, last accessed 27 December 2023.

[2] Home Affairs Select Committee, oral evidence session on the Work of the Home Office, 29 November 2023.

[3] At [105].

[4] At [104].

[5] PM Remarks on Supreme Court Judgement, 15 November 2023.

[6] Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership to strengthen shared international commitments on the protection of refugees and migrants, last accessed 27 December 2023.

[7] Safety of Rwanda (Asylum and Immigration) Bill.

[8] Rainbow Migration have highlighted that there have been individuals who have fled Rwanda claiming they are at risk of ill-treatment because of their sexual orientation. They note that whilst asylum claims are made in such low numbers that data is not published, in 2017 there were 5 appeals based on sexual orientation. See Rainbow Migration, Written Evidence to JCHR, last accessed 27 December 2023.

[9] ILPA, JUSTICE and Freedom from Torture, Safety of Rwanda (Asylum and Immigration Bill: Joint Briefing for Second Reading in the House of Commons (8 December 2023).

[10] Joint Committee on Human Rights, Chair’s Briefing Paper: Safety of Rwanda (Asylum & Immigration) Bill, 11 December 2023.

[11] Liaison Committee, Oral Evidence: Work of the Prime Minister, 19 December 2023.

[12] For more information about the next stages in Parliament see Institute for Government, Rwanda scheme: the government’s next steps in Parliament, 29 November 2023.

[13] Several stakeholders have expressed the view that the Illegal Migration Act, of which the Rwanda policy is a key part, will not actually deter asylum seekers. Some of these are set out in Joint Committee on Human Rights, Legislative Scrutiny: Illegal Migration Bill, paras 35-38, 11 June 2023.

[14] Letter from Matthew Rycroft to Rt Hon Priti Patel (accessible) – GOV.UK (www.gov.uk)

[15] Free Movement,  Briefing: four looming problems in the UK asylum system and how to address them, 28 November 2023

[16] Free Movement,  Over half the people seeking asylum are now unable to access a legal aid lawyer, 25 October 2023.

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