Thursday 9 May 2024

Introduction

The Safety of Rwanda (Immigration and Asylum) Act 2024 completed its passage through parliament last month, receiving Royal Assent and passing into law on 25 April 2024 after a political ‘ping-pong’ between the House of Commons and House of Lords, which eventually resulted in the latter dropping their opposition.

The Act requires Home Office asylum decision-makers and courts to consider the Republic of Rwanda a ‘safe’ country to which to remove certain asylum seekers. The Act is an attempt to address the Supreme Court’s decision in R (on the application of AAA and others) v SSHD [2023] UKSC 42 that the relocation policy was in breach of international law due to the risk of refoulement – the forcible return of refugees or asylum seekers to a country where they could be in danger of persecution. This development marks a decisive step in the Government’s protracted efforts to introduce a ‘systematic deterrent’ for unlawful migration into the UK.

The law marks a critical juncture in future UK asylum law and policy and indicates a shift in the UK’s relationship with longstanding principles of international law.

Background

The Rwanda scheme was initially introduced during the premiership of Boris Johnson through the Migration and Economic Development Partnership between the United Kingdom and the Republic of Rwanda in April 2022. The scheme was intended to ensure that some asylum seekers who arrived in the UK through ‘unlawful means’ would be relocated to Rwanda, where they could then have their refugee and asylum claims processed. Government policy states that the plan primarily addresses the issue of people making dangerous journeys to the UK from other safe countries, such as attempting to cross the English Channel in small boats.

On 15 November 2023, the UK Supreme Court unanimously ruled that the UK government’s Rwanda asylum policy was unlawful. The primary issue at hand, as the Court declared, was non-refoulement—that if asylum seekers were sent to Rwanda, they could be forcibly returned to their country of origin, where they would be at risk of persecution.

The Supreme Court ruled that Rwanda was not a safe country for three principal reasons: Rwanda’s poor human rights record, serious inadequacies in the country’s asylum system, and that under a similar agreement with Israel, Rwanda removed asylum seekers to countries of origin, thus violating the principle of non-refoulment.

Passing of the Act

In response to the Supreme Court’s decision, Prime Minister Rishi Sunak introduced the ’emergency legislation’ in December last year to declare Rwanda a safe country and that changes have since been implemented to eliminate the risk of refoulement. The Act also refers to various provisions in the UK-Rwanda treaty, which was additionally ratified on 25 April 2024 alongside the passing of the Act into law.

The Treaty intends to affirm Rwanda’s commitment to applying the Refugee Convention (which prohibits refoulement) when determining the claims of asylum seekers deposed to Rwanda from the UK. It also confirms that Rwanda cannot remove individuals to any country except the UK—in theory affirming that no one sent to Rwanda could face refoulement.

The Treaty also guarantees that people who say they would face a real risk to their life, or risk of torture or inhuman treatment if sent back to their country of origin, would be treated in the same way as refugees in Rwanda, whether legally recognised as refugees or not.

The Treaty also introduces more robust safeguards in Rwanda for asylum claims to be processed, including providing for the creation of a new initial decision-making body and appeals court. However, some have expressed concerns that flights to Rwanda could occur before such Treaty safeguards begin to function.

Implementation

The landmark legislation and Treaty mean that going forward, Rwanda shall be deemed a safe country for the purposes of relocating refugees and asylum seekers from the UK, including in UK courts and tribunals. Up to 52,000 asylum-seekers who entered the UK via irregular means could be liable for relocation to Rwanda. The Government has announced that regular flights removing ‘small boat arrivals’ to Rwanda will start from late June or early July 2024.

Controversies and challenges to the Act

Several criticisms have been levelled at the Act, not least that it risks violating several of the UK’s international obligations and the European Convention on Human Rights (ECHR). The Government has insisted that the Act is predicated on Rwanda and the UK’s compliance with international law in the form of the Treaty.

The Act also does not make exceptions for certain groups of people, such as victims of modern slavery. The House of Commons rejected a Lords’ amendment that would have prevented Afghan nationals who helped the UK armed forces from being removed to Rwanda, although it did make a political commitment that Afghans who worked with UK forces would not be sent to Rwanda.

The Act further raises concerns about the separation of powers between Parliament and the Courts. Clause two of the Act states that Home Office decision-makers, courts, and tribunals must ‘conclusively treat’ Rwanda as a safe country and that courts cannot consider claims challenging removal to Rwanda on the grounds that it is not secure. This provision is further compounded by clause five of the Act, which states that compliance with interim measures made by the European Court of Human Rights will be subject to ministerial discretion, and courts and tribunals cannot decide on this.

While the Act does prevent challenges on the question of the safety of Rwanda, it does allow for individuals to make an exceptional claim based on ‘compelling evidence relating specifically to a person’s particular circumstances’ that Rwanda is not safe for them specifically (although that argument cannot be based on the risk of refoulement). This allowance means that claims can only relate to the safety of conditions for the individual in Rwanda itself – yet the possibility of claims based on individuals concerning Rwanda is unlikely to apply as the Act exempts Rwandan nationals from being sent to Rwanda.

If legal challenges to the policy fail in the UK, it may be possible for the individual to apply to the European Court of Human Rights for an interim measure if they believe they are at imminent risk of irreparable harm. However, as noted, the Act concludes that only ministers can decide to comply with interim measures, prohibiting UK courts from holding jurisdiction over such matters.

Future implications

The efficacy of the Rwanda policy in deterring irregular migration is highly uncertain. The overall cost of the policy is also facing mounting scrutiny, with National Audit Office figures indicating that if the UK were to send 300 people to Rwanda over five years, this could cost more than £577 million.

Furthermore, the passage of the Act could have a knock-on effect by undermining the European Convention on Human Rights and the international refugee system, with other countries potentially following suit. It also risks damaging the UK’s human rights record and reputation for its commitment to international treaties if the UK disregards any orders from the European Court of Human Rights.

The Rwanda policy’s costs will be measured, not just financially but in compromised principles: disregarding international commitments, avoiding protections for the vulnerable and removing judicial scrutiny by legislating on the core factual question of Rwanda’s safety.

The Government has chartered aeroplanes and plans to implement removals to Rwanda within ten to twelve weeks of the passing of the Act into law, but there will undoubtedly be further legal and administrative challenges ahead of flights taking off.

It remains to be seen whether the passage of the Safety of Rwanda Act will deter irregular arrivals. As the Government has yet to introduce the promised new ‘safe and legal routes’, migrants’ rights advocates and critics alike are concerned about the human costs of these journeys—a stark reminder of the genuine consequences of a seemingly intractable issue.

Get in touch

To learn more about forthcoming changes to UK immigration law, see our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.