Safety of Rwanda (Asylum and Immigration) Act 2024

Safe Country – Safety of Rwanda Act – Relocation of illegal migrants – UK-Rwanda Treaty for the Provision of an Asylum Partnership – Decisions based on particular individual circumstances – Disapplication of the Human Rights Act 1998 – Interim measures – Refoulement.

Following the decision of the UK Supreme Court which ruled that Rwanda is not a safe country, the United Kingdom found unlawful its government’s policy of removing to Rwanda individuals who enter the UK without authorisation. The UK government embarked on the Safety of Rwanda (Asylum and Immigration) Act 2024. This Act is a tool to respond to concerns raised in the Supreme Court decision. It enables the relocation of asylum seekers from the UK to Rwanda. The Act defines Rwanda as a safe country and limits the ability of UK courts to review government removal decisions. It excludes the application of certain human rights laws in cases of relocation to Rwanda. The Act raises concerns about UK compliance with international human rights obligations. The Act also raises questions about the future relationship between the UK and the European Court of Human Rights.

Daniel Ndayisaba

A. Background

On 14 April 2022, the governments of Rwanda and the United Kingdom signed a “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” (hereafter UK-Rwanda MoU). The intended objective of the agreement is to create a mechanism for the relocation of asylum seekers whose claims are not being considered by the UK, to Rwanda, which will process their claims and settle or remove (as appropriate) individuals after their claims are decided (Section 2(1) of UK-Rwanda MoU). Politically, the UK government justified the agreement with the desire to deter dangerous and illegal arrivals to the United Kingdom, which are putting people’s lives at risk, and to disrupt the trafficking of persons.[1]

The first flight carrying migrants to Rwanda was scheduled to leave on 14 June 2022 before being halted by an interim judgment of the European Court of Human Rights (ECtHR) in N.S.K. v. UK (appl. no. 28774/22).[2] Following the petition of AAA and Others v. The Secretary of State for the UK Home Department, the UK Supreme Court ruled that Rwanda was not a safe third country because there was a real risk of refoulement of relocated persons to their home country without their claims being properly decided due to the deficiencies in the asylum system in Rwanda as well as the country’s poor human rights record (§§ 102, 105 and 149).[3]

After the decision of the UK Supreme Court in AAA and Others v SSHD, the UK government undertook another move of upgrading the deal from a simple Memorandum of Understanding to a bilateral “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 Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants”, signed on 5 December 2023 (hereafter UK-Rwanda Treaty for the Provision of an Asylum Partnership). In addition, on 7 December 2023, the UK government introduced to the Parliament the “Safety of Rwanda (Asylum and Immigration) Bill”. The purpose of this initiative was to provide the Parliament with the opportunity to set out the conclusion that Rwanda is safe in primary legislation.[4] This bill passed the UK Parliament vote and assented by the King into “Safety of Rwanda (Asylum and Immigration) Act 2024” on 25 April 2024 (hereafter, the Act).

With the ratification of the UK-Rwanda Treaty for the Provision of an Asylum Partnership and promulgation of Act, the operationalisation of relocation of illegal migrants from the UK to Rwanda is imminent. While waiting for first flights to take off, this paper analyses the key elements of this Act, the critiques as well as related legal and human rights interrogations.

B. Content

The Safety of Rwanda (Asylum and Immigration) Act 2024 contains sections with various substantive elements including the purpose of the Act; safety of the Republic of Rwanda; disapplication of the Human Rights Act 1998; decisions based on particular individual circumstances; interim measures of the European Court of Human Rights; and report about victims of modern slavery or human trafficking.

1. Purpose of the Act

The purpose of the Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by enabling the removal of persons to the Republic of Rwanda (Section 1(1) of the Act). To this end, the Act gives effect to the judgment of Parliament that the Republic of Rwanda is a safe country (Section 1(2) of the Act).

The Act reiterates that the Republic of Rwanda has several obligations including that any person removed to the Republic of Rwanda will not be removed from Rwanda except to the UK and that any relocated individual is to be made available for return to the United Kingdom following a request from the UK Government (Section 1(3) of the Act).

2. Definition of Safe Country

The Act defines “safe country” as a country to which persons may be removed from the UK in compliance with all United Kingdom’s obligations under international law that are relevant to the treatment in that country of persons who are removed. More particularly, the definition includes a country from which a person removed to that country will not be removed or sent to another country in contravention of any international law, and in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligations under international law (Section 1(5) of the Act).

3. Safety of the Republic of Rwanda

The Act dictates the Secretary of State or an immigration officer to conclusively treat the Republic of Rwanda as a safe country when deciding on the removal of a person to the Republic of Rwanda. In the same vein, the court or tribunal conclusively treat the Republic of Rwanda as a safe country when considering a decision of the Secretary of State or an immigration officer.

The Safety of Rwanda is an established fact to the extent that the court or tribunal must not consider a review of, or an appeal against, a decision of the Secretary of State or an immigration officer relating to the removal of a person to the Republic of Rwanda to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country (Section 2(3-5) of the Act).

The Act provides for disapplication of sections 2,3,6,7 and 9 of the Human Rights Act (Section 3(2) of the Act). This disapplication incapacitates asylum seekers to claim that a public authority has acted (or proposes to act) in a way which is unlawful (Section 7 of the 1998 Human Rights Act).

4. Decisions Based on Particular Individual Circumstances

Exceptionally, the Act allows the Secretary of State or an immigration officer or the Court to decide that Rwanda is not 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 (Section 4(2) of the Act).

The Act does not permit a decision maker to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its international obligations, including in particular its obligations under the Refugee Convention (Section 4(3) of the Act).

The court or tribunal may grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to the Republic of Rwanda only if the court or tribunal is satisfied that the person would, before the review or appeal is determined, face a real, imminent and foreseeable risk of serious and irreversible harm if removed to the Republic of Rwanda (Section 4 (4) of the Act).

5. Interim Measures of the ECtHR

The Act leaves to the discretion of a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measures of the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda. Additionally, the Act gives an injunction that the court or tribunal must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to the Republic of Rwanda (Section 5(1-2) of the Act).

C. Discussion

The adoption of the Safety of Rwanda (Asylum and Immigration) Act 2024 leaves points of concerns with regard to the restriction of judicial review in the execution of migration policy (1), double standards (2), possibility to challenge the decision of relocation to Rwanda before UK courts (3), possibility to challenge the decision of relocation to Rwanda before the ECtHR (4), the Act vis-à-vis the UK international human rights obligations (5), the future of relationship between the UK and the ECtHR (6) and unresolved issues raised in Supreme Court decision (7).

1. Restrictions to the Powers of the Courts

In AAA and Others v. SSHD, the UK Supreme Court unanimously held that Rwanda was not a safe country to remove asylum seekers to, both due to the risk of harm such persons would face in Rwanda, and the risk that these people would be removed from Rwanda to their home country where they would face harm. In a bid to curb the interference of the court, the UK government passed through the shortcut of restricting the powers of the courts when dealing with matters relating to the relocation of asylum seekers to Rwanda.

The Act completely bars the ability of the UK courts to scrutinise government removal decisions. This spirit defies the rule of law. Independent judicial oversight is a bedrock of the rule of law and essential to ensuring there are democratic safeguards for individual rights. The Act places the government above the law and demonstrates a profound lack of respect for the rule of law and separation of powers. Judicial scrutiny of government action is a necessary precondition of a well-functioning democratic society to ensure the government is acting in line with the law (and not beyond it), and to avoid absolute power residing in one person or body, effectively operating as a “checks and balances” on unfettered government action.[5]

2. Double Standards

The disapplication of human rights instruments is limited to cases of removal of asylum seekers to Rwanda. This means that provisions of domestic or international law remain operational to other individuals at the exclusion of those concerned with relocation to Rwanda. In this regard, the 1998 Human Rights Act, which gives effect in UK law to most rights in the European Convention on Human Rights (ECHR), the ECHR itself, the 1951 Refugee Convention, and other international and national law instruments continue to apply to the UK except that they cannot be applied to the question of whether Rwanda is safe or not.

3. Possibility to Challenge the Decision of Relocation to Rwanda Before UK Courts

The possibility to challenge the decision of relocation to Rwanda exists as long as the applicant is not attacking the confirmed fact of safety of Rwanda and there is compelling evidence relating specifically to the person’s particular circumstances that Rwanda is not a safe country. The risk of refoulement is excluded from the circumstances that may trigger the challenge. However, the Act did not elaborate on that person’s particular circumstances to motivate the judicial action.

4. Possibility to Challenge the Decision of Relocation to Rwanda Before the ECtHR

While there is not much doubt that in its imperfection, the UK national courts are bound to respect it and do not receive any challenge against the safety of Rwanda, there is a certain grey zone on whether this restriction to courts can be extended to the ECtHR. This is a supranational court. The UK is a member with equal obligations as other members.

The question is to know whether if an applicant seizes this court challenging the safety of Rwanda, the court may choose to omit the matter. The prevailing opinion should be that the ECtHR should not be restricted by a national legislation as long as the case falls under its jurisdiction. Besides, the Act did not expressly prohibit the possibility to challenge the relocation to Rwanda before the ECtHR. However, the Act specified that the compliance of interim order of the ECtHR is within the discretion of the Minister.

Despite the restriction to national courts, the individual can challenge relocation to Rwanda before the ECtHR. The remaining issue in such a case is the binding force of jurisprudence of this court vis-à-vis the Act, since the Act specifies itself that its validity is unaffected by international law which includes the jurisprudence of the ECtHR.

Lastly, but not least, another avenue, but a difficult one, is the possibility for one of the members of the Council of Europe to bring an inter-State case against the UK over alleged breaches of the Convention arising from the Act in accordance with Article 33 ECHR.

5. The Act vis-à-vis the UK International Human Rights Obligations

The UN High Commission for Refugees (UNHCR), in its Analysis of the Legality and Appropriateness of the Transfer of Asylum-Seekers under the UK-Rwanda arrangement, expressed the concern that the Act breached international law, especially the 1951 Refugee treaty. The Office of the United Nations High Commissioner for Human Rights (OHCHR) shared the same view in a press release on UK-Rwanda asylum law. The Council of Europe Commissioner for Human Rights issued the same alert in a Statement on Serious human rights concerns about UK-Rwanda Bill.

The UK government motivates that there is a firm conviction that the Act is predicated on both Rwanda and the UK’s compliance with international law in the form of the Treaty, which itself reflects the international legal obligations of the UK and Rwanda.[6] However, beyond this rhetoric, there is no other assurance to erase the doubt of breach of UK international obligations. The Parliament reported that the Home Secretary was unable to state that the Bill was compatible with the Convention rights with more than 50% certainty.[7]

In its research, the UK Parliament concluded that the government decisions on the removal of asylum seekers to third countries and related specific legislation diverged from the notion that human rights are universal and apply to everyone regardless of conduct or status. It also increased the likelihood that the ECtHR would find the UK to be in violation of its human rights obligations in the future.[8]

Being a domestic instrument, the Act should not release the UK from complying with its international obligations nor offer a shopping forum to abide with some international obligations and leave out others.

6. Future of Relationship Between the UK and the ECtHR

The UK has a generally exemplary record in implementing the judgments of the ECtHR. The jurisprudence of the ECtHR concerning the UK usually led to swift changes to the law or the way that the law is applied.[9] There is an uncertainty over a possible deterioration of this convivial relationship between the UK and the ECtHR because the Act intends to dictate that the UK may voluntarily ignore the decision of ECtHR and its interim measures.

If the Court finds that the UK had violated the Convention, the UK would be obliged under international law to comply with the judgment, take action to rectify the incompatibility with the ECHR and provide any victims with a remedy. If it no longer wishes to comply with these treaty obligations, the UK will have to confront the possible consequences of withdrawal.[10] The idea of backlash between the UK and the ECtHR is reflected in political speeches of some UK leaders starting with Prime Minister Sunak. In his Statement on the plan to stop the boats, he reiterated that “No foreign court will stop us from getting flights off.” The extent to which this political rhetoric may be materialized remains unknown but the tension between the UK and the ECtHR is likely to grow if the court happens to challenge the UK plan.

7. Unresolved Issues Raised in the UK Supreme Court Decision

The Act addresses one concern raised in the Supreme Court decision: the issue of safety. Other issues analysed in the same judgment remain in limbo. The solution to deficiencies in the Rwandan asylum system requires sustained, long-term efforts, the results of which may only be assessed over time. The necessary structural changes and capacity development needed to eliminate the risk of refoulement could be built in the future and significant changes to asylum procedures as they operate in practice are required. The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitude, and effective training and monitoring.[11] The challengers see the decision to implement the UK-Rwanda as hasty, it would be better to wait for the implementation of holistic measures to improve the Rwandan asylum system.

D. Conclusion

The Act is the backbone for the implementation of the Agreement between the Government of the UK and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants.

The Act dictates UK decision makers including courts to conclusively treat the Republic of Rwanda as a safe country when deciding on the removal of a person to the Republic of Rwanda. The Act reiterates that the Republic of Rwanda has several obligations including that any person relocated to Rwanda will not be removed from Rwanda to any other country except to the UK and that any relocated individual is to be made available for return to the United Kingdom following a request from the UK government.

The possibility to challenge the decision of relocation to Rwanda exists if the applicant is not attacking the confirmed fact of safety of Rwanda and there is compelling evidence relating specifically to the person’s particular circumstances that Rwanda is not a safe country for the person individually.

The Safety of Rwanda Act 2024 leaves concerns regarding the restriction of judicial review in the execution of migration policy and the future of relationship between the UK and the ECtHR.

Cooperation between Rwanda and the United Kingdom on asylum matters raises questions, for the reasons set out in this note, but also because it sets a risky precedent. Delegating or exporting asylum applications, in reality people applying for asylum, to third countries has been an option raised by EU countries for years. It is already at the heart of concerns linked to the agreement with Turkey,[12] which has seen asylum seekers sent back or returned to a country that the Greek courts have presented as safe. It is also at the heart of the externalisation policies embodied in the memoranda, the form and content of which raise questions from the point of view of human rights and democratic control.[13] The justiciability of these mechanisms remains extremely limited, even though they concern whether internationally forced displaced persons have access to the right to international protection. It will be up to European judges, at the domestic as well as at the international levels, to remain very vigilant and attentive to the effectiveness of the mechanisms set up in third countries to dare to stop returns in the event of failure, such as here the guarantees instituted in Rwanda. This control will have to be carried out with a concern for concrete and effective protection and not theoretical and illusory, in accordance to the well-known requirement of Strasbourg case law. This means moving away from facade satisfaction or to lip services to genuine monitoring.[14]

E. Suggested Reading

Read the Act: The Safety of Rwanda (Asylum and Immigration) Act 2024, 25 April 2004.

Legal Instruments:

• European Convention on Human Rights.
• 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 Agreement to Strengthen Shared International Commitments on the Protection, signed on 5 December 2023.

Case law:

• European Court of Human Rights, N.S.K. v. United Kingdom, Appl. no. 28774/22, interim judgment of 14 June 2022 granting urgent interim measure in case concerning asylum seekers’ imminent removal from the UK to Rwanda;
• UK Supreme Court, 15 November 2023, [2023] UKSC 42, AAA and Others v. SSHD.

Doctrine:

• Dawson, J. and Robinson, D., The European Convention on Human Rights and the Human Rights Act 1998, Research Briefing, Number 9958, House of Common Library, 2024;
• Donald, A., Gordon, J. and Leach, P., The UK and the European Court of Human Rights, Equality and Human Rights Commission, Research report 83, Human Rights and Social Justice Research Institute, London Metropolitan University, 2012;
• van der Mensbrugghe, F. , “Britain’s Migrant Policy in the Crosshairs”, Louvain Migration Case Law Commentaries, November 2023;
• Muhambya, I.B., “UK-Rwanda agreement versus legal framework on the protection of refugees: Primacy of minimum guarantees of human rights”, Cahiers de l’EDEM, September 2022;
• Frasca, E. and Roman, E., “The Informalisation of EU Readmission Policy: Eclipsing Human Rights Protection Under the Shadow of Informality and Conditionality”, European Papers, 2023.

Documents:

• House of Lords, International Agreements Committee, Memorandum of Understanding between the UK and Rwanda for the provision of an asylum partnership arrangement, 7^th Report of Session 2022–23, 18 October 2022;
•  House of Lords, Committee on the Constitution, Safety of Rwanda (Asylum and Immigration) Bill, 3rd Report of Session 2023–24, 9 February 2024;
• UK Home Office, Evidence of the safety of the Republic of Rwanda for the purposes of relocating individuals under the terms of the Migration and Economic Development Partnership, 11 January 2024;
• UN High Commission for Refugees, UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum-Seekers under the UK-Rwanda arrangement: an update, 15 January 2024;
• UK Home Office, The UK government’s legal position on the Safety of Rwanda (Asylum and Immigration) Bill 2023 and accompanying measures, 25 April 2024;
• Joint Committee of House of Commons and House of Lords on Human Rights, Safety of Rwanda (Asylum and Immigration) Bill, Second Report of Session 2023–24, 12 February 2024.

Others:

• Joint Statement by UNHCR and OHCHR: UK-Rwanda asylum law: UN leaders warn of harmful consequences, 23 April 2024;
• Statement of Council of Europe Commissioner for Human Rights on Serious human rights concerns about United Kingdom’s Rwanda Bill, 23 April 2024;
• UK Prime Minister’s Office, Prime Minister Rishi Sunak’s statement on the plan to stop the boats, 22 April 2024.
• The Law Society, Rwanda Bill seeks to overturn finding of fact confirmed by the highest court in the UK, Press release, 11 December 2023.

 

To cite this contribution: D. Ndayisaba, « Inside the Safety of Rwanda (Asylum and Immigration) Act 2024: Highlighting grey zones », Cahiers de l’EDEM, May 2024.

^{Photo by Moses Niyonzima - KT Press}