After months of what is known as parliamentary 'ping pong', the third amendment to the Safety of Rwanda (Asylum and Immigration) Bill (hereafter 'the Bill') was rejected by the House of Commons, resolving the deadlock between the Houses. The latest amendments would have required the UK to set up an independent monitoring committee to report to Parliament before Rwanda could be declared 'safe', and to grant an exemption to refugees who had been working with the UK military overseas, such as Afghan interpreters. Both amendments were rejected by MPs in the House of Commons. As such, after many months of parliamentary deadlock, this paved the way for the Bill to become law and it was granted royal assent on 25 April 2024. Thus, the Safety of Rwanda (Asylum and Immigration) Act 2024 entered the statute books.
This post explores the background and motivation behind the Act, its significance to UK immigration law and international law obligations, the reaction to this controversial piece of legislation, and what we can expect from it.
Why Was the Bill Proposed in the First Place?
The Bill was proposed in the aftermath of the unequivocal finding by the UK Supreme Court in R (AAA & others) v Secretary of State for the Home Department [2023] UKSC 42, on 15 November 2023 that Rwanda was not currently a safe country to remove asylum-seekers to, due to the risk of 'refoulement'.
'Non-refoulement' is a protection mechanism under international law prohibiting States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return to a country in which they would be liable to persecution, torture, ill-treatment or other serious human rights violations. It is a principle which appears, among other legal instruments, in the 1951 Refugee Convention, and the European Convention on Human Rights ('ECHR') under the jurisprudence relating particularly to Articles 2 (Right to life) and 3 (Prohibition of torture). The ECHR is given effect in the UK via the Human Rights Act 1998 ('HRA'), which incorporated it into domestic law to enable individuals to protect their rights in domestic courts and compel the creation, interpretation and enforcement of domestic law in compliance with it.
In R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42, the Supreme Court held in a lengthy and unanimous judgement (paras. 102 and 103):
"[...] The central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement (including in the context of an analogous arrangement with Israel), and the scale of the changes in procedure, understanding and culture which are required.
- In agreement with the Court of Appeal, we consider that the past and the present cannot be effectively ignored or sidelined as the Secretary of State suggests. Of course, since the application of the Soering test requires a consideration of risk, it therefore involves prediction. But risk is judged in the light of what has happened in the past, and in the light of the situation as it currently exists, as well as in the light of what may be promised for the future."
The Israel/Rwanda agreement which the court took into account in reaching its conclusion was one from 2013 to 2018 in which asylum seekers were given cash incentives to leave Israel voluntarily and the option to settle in Uganda and Rwanda. Those sent to Rwanda were not given a right to settle and were at risk of refoulement, leading the Israeli Supreme Court to rule the programme unlawful in April 2018.
On the issue of refoulement, Lord Reed provided a thorough analysis of just how pervasive this principle is in the UK's international and domestic law obligations. Under international law, he states:
"25. It may be that the principle of non-refoulement also forms part of customary international law. The United Kingdom has subscribed to this view, along with the other states parties to the Refugee Convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees...The significance of non-refoulement being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect. However, as we have not been addressed on this matter, we do not rely on it in our reasoning.
- The principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country's reputation for developing and upholding the rule of law."
As regards domestic law:
"33. Asylum seekers are thus protected against refoulement not only by the Human Rights Act but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which Parliament has given effect to the Refugee Convention as well as the ECHR."
For an in-depth discussion of the Supreme Court's findings, read Alex Papasotiriou's blogpost: 'Supreme Court Rwanda Judgment: Government's Rwanda Policy Is Unlawful'.
The UK government therefore found itself facing a difficult constitutional question, with this unanimous, unequivocal judgement that the MEDP as it stood breached the non-refoulement obligation, and this inescapable obligation in international and domestic legal instruments.
Thus, the Government proposed the Safety of Rwanda Bill: a bill that would override the Supreme Court judgement and "enable Parliament to confirm that, with our Treaty, Rwanda is safe" (PM's remarks on the Supreme Court Judgment: 15 November 2023.)
The UK-Rwanda Memorandum of Understanding
Before the Bill was introduced, the UK-Rwanda Treaty was signed by the Secretary of State for the Home Department on 05 December 2023. The Treaty introduced some important protections to address the concerns of the Supreme Court:
- It provides an assurance that individuals who are subject to a real risk of inhuman, degrading treatment or torture, or to their life, upon return shall not be returned, even if not recognised as refugees. Relocated individuals furthermore cannot be sent to any place other than the UK (Article 10);
- It provides for the resettlement of the most vulnerable refugees to the UK (Article 19);
- It strengthens oversight mechanisms, including an independent monitoring committee to ensure compliance which is able to receive confidential complaints from those relocated and their legal representatives (Article 3(2) and Part 5);
- It creates two new bodies – a first instance and appeals body – made up of judges from a mix of nationalities to assess claims for asylum/humanitarian protection (Articles 2-4);
- It confirms the commitment of Rwanda to the Refugee Convention and international standards, including international human rights law, when determining asylum claims (Article 2(3)(a)).
It therefore appeared that the Government had addressed the concerns of the Supreme Court, by introducing mechanisms and safeguards to avoid the systemic deficiencies. It does, however, create several important contradictions, such as the fact that asylum seekers who commit crimes in Rwanda could be deported back to the UK, and applicants might be incentivised to fail to meet the refugee test so that they could be returned. It is not clear how the most vulnerable refugees will be identified, nor what would happen if individuals were returned to the UK.
What Did the Safety of Rwanda Act Introduce?
The Act states that "Every decision-maker must conclusively treat the Republic of Rwanda as a safe country" (Section 2(1)). 'Decision-maker' is defined as the Secretary of State, an immigration officer, a court or tribunal.
Under Section 2(4), it states that a court or tribunal "must not consider any claim or complaint" relating to whether removal breaches international obligations, that a person will not receive fair and proper consideration of asylum, or the Rwandan government will not act in accordance with the Rwanda Treaty. This applies regardless of any provision of domestic or international law, including the HRA. As such, even if these human rights provisions should apply, they may not be applied to determine whether Rwanda is safe.
Section 3 makes sections 2, 3 and 6 to 9 of the HRA – the interpretation of ECHR rights, interpreting primary and subordinate legislation compatibly with the ECHR, and duties of public authorities to act in accordance with the ECHR – inapplicable to the question of whether Rwanda is safe. It does, however, keep section 4 of the HRA in effect, which would allow a court to declare the Act 'incompatible' with the ECHR. This declaration does not actually change the law or stop its effect, but has historically led to Parliament making legislative changes.
Section 4 of the Act also allows the Secretary of State, an immigration officer or court/tribunal to decide whether Rwanda is safe "based on compelling evidence relating specifically to the person's particular individual circumstances (rather than on the grounds that the Republic of Rwanda is not a safe country in general)". Nevertheless, it will not permit such claims if they relate to the issue of whether Rwanda may remove that person to another State, in breach of its obligations under international law. Its utility therefore appears to be limited to circumstances where there are compelling circumstances that the individual's safety will be threatened in Rwanda. Furthermore, Rwandans cannot be sent to Rwanda under the Act, so the situations where a non-Rwandan national finds themselves threatened by Rwandan authorities are likely to be rare.
Interim remedies to delay or prevent removal are permitted under section 4, but are extremely restricted to situations where the individual would "face a real, imminent and foreseeable risk of serious and irreversible harm if removed to the Republic of Rwanda." The Explanatory Note does not offer any further insight on how this high threshold will be met.
What Has the Reaction to the New Act Been?
The reaction to the Act has been mixed. Some criticise it for not going far enough to shield the UK from legal challenges, others for going too far in potentially placing refugees in harm's way and removing the UK's obligations under domestic and international law.
Robert Jenrick, the former immigration minister, resigned on 06 December 2023. He stated in his resignation letter that the Bill failed to "pursue the stronger protections required to end the merry-go-round of legal challenges which risk paralysing the scheme and negating its intended deterrent."
Meanwhile, former Home Secretary Suella Braverman called for the UK to override the entire HRA, ECHR, Refugee Convention and all other international legal instruments in a speech to the House of Commons.
On the other side of the debate, the Immigration Lawyers Practitioners Association (ILPA) issued an open letter to the Prime Minister expressing their outrage at the Act's impact on the asylum system:
"[T]his law would enable the Government to forcibly expel people seeking asylum – including children and survivors of trafficking and modern slavery – despite concerns they could be put at grave risk of harm and human rights abuses. The Rwanda plan will force people who have fled violence and persecution into detention centres where they may face abuse and mistreatment, with no time limit. They will then be removed to a country to which they have no connection, despite our country's Supreme Court ruling that it is unsafe for them. Through this law, the Government will put them at grave risk of mental and physical harm, and of being returned to danger in the countries they fled."
In regards to the incompatibility with the UK's obligations under international law and the rule of law, they state:
"Despite the clear ruling from the Supreme Court, the Government is rewriting the facts so they can shirk our responsibilities to refugees. In doing so, the Government would break international law and further shatter the UK's commitment to justice and the rule of law. While this is a targeted attack on refugees and migrants, an attack on one group's rights is an attack on all of us.
Outsourcing our asylum system to other countries is never acceptable. It abandons our duty to share in the global responsibility towards those forced to seek safety. "
The United Nations High Commissioner for Refugees ('UNHCR'), which was an intervener in the legal challenges to the Rwanda scheme all the way to the Supreme Court, offered an analysis of the Bill's legality and appropriateness following its introduction:
"UNHCR considers that the UK-Rwanda asylum partnership runs counter to the fundamental principles of global solidarity and responsibility-sharing that underpin the international refugee protection system. It shifts responsibility for identifying and meeting international protection needs from the UK to Rwanda, and is an example of "externalization" of international protection. By entrenching responsibility-shifting, the treaty remains at variance with the spirit and letter of the Refugee Convention. UNHCR notes that past externalization attempts and arrangements have not represented sustainable, effective responses to refugee movements."
On the changes introduced by the UK-Rwanda Asylum Partnership Treaty, UNHCR notes the following:
"...In its 2022 analysis, UNHCR noted its serious concerns that asylum-seekers transferred from the UK to Rwanda would not have access to fair and efficient procedures for the determination of refugee status, with consequent risks of refoulement....As of January 2024, UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns set out in its 2022 analysis and in the detailed evidence presented to the Supreme Court. UNHCR has continued to engage bilaterally with the Government of Rwanda on specific incidents of concern, and will continue to offer technical advice and support to the Government of Rwanda to strengthen its asylum system and the protection of all refugees, as part of its mandated responsibilities.
...UNHCR notes the detailed, legally-binding commitments now set out in the treaty, which if enacted in law and fully implemented in practice, would address certain key deficiencies in the Rwandan asylum system identified by the Supreme Court. This would however require sustained, long term efforts, the results of which may only be assessed over time."
The Bingham Law Centre's Rule of Law Analysis of the Bill following its second reading concluded:
"The Report's conclusion is that the central purpose of the Bill, to conclusively deem Rwanda to be a safe country in light of the recently concluded Rwanda Treaty, is 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.
It also concludes that certain provisions in the Bill are contrary to the Rule of Law because they are manifestly incompatible with the UK's obligations under international law, including the European Convention on Human Rights (ECHR) and the international law principle of non-refoulement which is enshrined in many sources of international law by which the UK accepts it is bound, including the Refugee Convention, and which is arguably also a principle of customary international law."
What Can We Expect From the New Legislation?
Preparation has already begun to detain the first cohorts of asylum seekers on flights due to take off to Rwanda in 10 to 12 weeks. Speaking after the Bill was passed, Prime Minister Sunak told the Lords and Commons that the number of detention spaces and caseworkers has been increased, as has the number of judges and courtrooms available to deal with legal challenges promptly.
Legal challenges are reportedly already in the works, despite the extreme limitations the Act places on courts' and tribunals' discretion to decide questions on the safety of Rwanda. In an unexpected twist, civil servants have threatened to bring legal action over concerns that the Act could compel them to breach international law and violate the civil service code. Airlines and aviation regulators could similarly find themselves in breach of international human rights law if they agree to conduct the deportations.
On behalf of individuals issued with removal notices, lawyers may be able to rely on the narrow exception of facing "real, imminent and foreseeable risk of serious irreversible harm if removed to Rwanda". It is possible that the Act might be challenged under section 4 of the HRA on the grounds that it is incompatible with ECHR rights; nevertheless, it would still be up to Parliament to amend the law. Another possible avenue of challenge is in the European Court of Human Rights in Strasbourg; the problem is that the Act gives ministers the power to not comply with interim measures issued and courts are barred from having regard to them.
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