Alice Donald and Joelle Grogan explain the UK-Rwanda Treaty and the Safety of Rwanda (Asylum and Immigration) Bill which aims to action the government’s policy to remove asylum seekers to Rwanda. They explain what both intend to achieve, their potential impact and why they are controversial. For an explanation of the UK Supreme Court judgment which found the Rwanda policy to be unlawful, see here.
What are the latest developments?
On 29 January 2024, the Bill passed its second reading in the House of Lords. During the debate, a ‘fatal motion’ was tabled by the Liberal Democrats to stop the passage of the Bill, which would require the government to reintroduce the draft legislation in the Commons. This was defeated by 206 votes to 84.
The Bill continues to three days of debate in the committee stage on 12, 14 and 19 February 2024. During the Lords committee stage every clause of the Bill has to be agreed to and votes on any amendments can take place. Committee stage is followed by the report stage before the final third reading stage. Both will give further opportunities for the Lords to amend the Bill.
The Conservative party does not have a majority in the Lords. The Lords also tend to be less politically divided on party lines due to the number of cross-bench and non-affiliated peers. As the Rwanda policy was not in the party’s 2019 manifesto, the Lords are not subject to a political convention – known as the Salisbury Convention – requiring them to pass the Bill.
While the Prime Minister has implored the Lords to pass the Bill quickly, where bills raise fundamental constitutional questions, as in the case of the Rwanda Bill, the Lords have indicated that ‘parliamentary scrutiny … should not be rushed unless there are justifiable reasons for fast-tracking them’.
The Lords may amend the Bill, and any changes will then be debated in the Commons. Both Houses must agree on wording, and the Bill could go back and forth until both Houses agree in a process known as ‘ping-pong’.
On 22 January, the Lords passed a motion by 214 to 171 stating that government ‘should not ratify the UK-Rwanda Agreement on an Asylum Partnership until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the Agreement, about whether Rwanda is safe.’ Under the Constitutional Reform and Governance Act 2010, the Lords do not have the power to stop the ratification of the Treaty by passing the motion. However, the law creates an obligation on the Foreign Secretary, James Cleverly, to give a statement to Parliament indicating why the Treaty should nonetheless be ratified, and explaining why. This motion does not affect the passage of the UK-Rwanda bill, however, it gives strong indication as to position of the Lords.
On 15 January, the UN Refugee Agency (UNHCR) published an updated analysis of the situation in Rwanda in light of the UK-Rwanda Treaty and the Bill. It concluded that the policy still ‘does not meet the required standards’ and ‘is not compatible with international refugee law’.
The International Agreements Committee, in addition to experts, have also drawn attention to the risk of legislating that Rwanda is a ‘safe’ country, no matter the evidence to the contrary now or in the future. If the law designates Rwanda as a safe country, then it would require another Act of Parliament to designate that it is no longer safe, or for MPs to repeal the measure, in order to suspend the operation of the policy.
What is the background to the Rwanda Treaty and Bill?
The Rwanda policy, announced in April 2022, would see some asylum seekers who arrive in the UK via illegal routes removed to Rwanda where their claim would be processed and where they would settle if their claim to refugee status were successful.
On 15 November 2023, the UK Supreme Court (UKSC) unanimously found the government’s intended policy of sending asylum seekers to Rwanda is unlawful. The UKSC did not find the policy of removing asylum-seekers to a third country unlawful, only that Rwanda is not currently a safe country to do so. This was because asylum seekers would be at risk of refoulement.
Non-refoulement is the legal rule that refugees must only be removed to a ‘safe’ country. This means that they must not be returned to a country if they would face a risk to their life or a risk of severe ill-treatment, and cannot be sent to a third country where there is a ‘substantial risk’ of their being returned to a country where they would face such threats. Non-refoulement, the UKSC concluded, is not only embedded within domestic UK law but also a ‘core principle of international law, to which the United Kingdom government has repeatedly committed itself’.
Following the judgment, Prime Minister Rishi Sunak announced plans to make a treaty with Rwanda which would address the Court’s concerns, and, in parallel, introduce ‘emergency’ legislation to Parliament which would designate Rwanda as a safe country.
What is in the UK-Rwanda Treaty?
The UK-Rwanda Treaty was signed on 5 December 2023. The Treaty contains some guarantees and protections that were not in the original Memorandum of Understanding with Rwanda, which was a political agreement as opposed to a legally-binding treaty.
“The Treaty provides that relocated individuals cannot be removed by Rwanda to any country except the UK.”
The Treaty provides that relocated individuals cannot be removed by Rwanda to any country except the UK.
The Treaty guarantees that people who say they would face a real risk to their life or a real risk of torture or inhuman or degrading treatment if they were sent back to their country of origin would be treated in the same way as refugees and allowed to stay in Rwanda, whether legally recognised as refugees or not.
The Treaty makes provision to ‘resettle a portion of Rwanda’s most vulnerable refugees’ in the UK, but neither the Treaty nor the explanatory notes to the Treaty clarify on what basis these refugees would be selected. The Treaty also enables the UK to request the return of anyone removed to Rwanda.
The Treaty adds that the UK and Rwanda agree to take all necessary steps ‘to ensure that their obligations can both in practice be complied with and are in fact complied with’. It creates or strengthens oversight arrangements, including an independent monitoring committee to ensure compliance with the Treaty, e.g. in relation to reception conditions, processing of asylum claims, and support for individuals up to five years after they have received final determination of their status. The monitoring committee will be able to receive confidential complaints from relocated individuals and their legal representatives.
In addition, the Treaty would create two new bodies within the Rwandan asylum system: a ‘first instance body’ that will initially assess claims for asylum or humanitarian protection, and an appeal body, which will be made up of judges from a mix of nationalities.
The Treaty affirms the commitment of Rwanda to apply the Refugee Convention (which prohibits refoulement) as well as ‘current international standards, including … international human rights law’ when determining the claims of asylum seekers removed to Rwanda from the UK.
What are some likely implications of the UK-Rwanda Treaty?
The Home Office says that the Treaty ‘responds directly to the conclusions of the Supreme Court’. Unlike a memorandum of understanding between states, which is not legally binding, a treaty creates rights and obligations in international law between countries.
As an international treaty, any promises in the UK-Rwanda Treaty cannot be relied on by claimants in UK courts. By contrast, under the Rwandan constitution, the Treaty becomes part of domestic law once it is ratified by the country.
The Treaty is intended to overcome what the UKSC described as ‘serious and systemic defects in Rwanda’s institutions and procedures for processing asylum claims’. These deficiencies included Rwanda’s ‘past and continuing practice of refoulement’ in the context of a similar agreement with Israel, which in the view of the UKSC required ‘changes in procedure, understanding and culture’ in Rwanda.
In order to address the risk of refoulement, the Treaty provides that relocated individuals cannot be sent by Rwanda to any country except the UK. This means that asylum seekers who commit crimes in Rwanda could be deported to the UK. It could also mean that asylum seekers who fail to meet the Rwandan test for refugee status might be returned to the UK.
The Treaty creates an apparent contradiction with the Illegal Migration Act, as under the Act it is not permissible for a person removed from the UK to a safe third country to return. A practical challenge would also be the possibility that asylum seekers could be incentivised to fail to meet the test for refugee status in Rwanda if it meant they would be returned to the UK. However, it is currently unknown what would happen to individuals returned to the UK: whether they would then be processed under UK law, or removed to a country which would accept them.
How does a treaty come into effect?
In the UK, it is the government that negotiates, signs and ratifies (i.e. consents to be bound by) treaties, with only a limited role for Parliament. The process is governed by the Constitutional Reform and Governance Act 2010 (CRAG).
Under CRAG, treaties subject to ratification have to be laid before Parliament for 21 sitting days. During those 21 days, either the Commons or the Lords can resolve that the treaty should not be ratified. The House of Commons can delay ratification repeatedly, whereas the Lords has only advisory power and cannot stop the ratification of a treaty.
Parliament does not vote on the content of treaties or amend them and, in practice, parliamentary select committees rarely scrutinise them. Since CRAG was passed, neither House has debated or voted on a motion objecting to the ratification of any treaty.
The UK-Rwanda Treaty would be due for ratification in the UK on 30 January 2024, assuming no changes to Parliament’s sitting days and as long as MPs do not vote to delay ratification.
What does the Safety of Rwanda (Asylum and Immigration) Bill do?
The Prime Minister introduced the Safety of Rwanda (Asylum and Immigration) Bill on 6 December 2023. The Bill states that ‘Every decision-maker must conclusively treat the Republic of Rwanda as a safe country’. A decision-maker means the Home Secretary or immigration officers when deciding on the removal of a person to Rwanda, or any court or tribunal when considering such decisions.
“The Bill states that ‘Every decision-maker must conclusively treat the Republic of Rwanda as a safe country’.”
Courts ‘must not consider’ any challenge to a removal decision on the basis that Rwanda is not safe. Courts cannot consider any challenge on the grounds that the person will not receive ‘fair and proper’ consideration of their claim. They also cannot consider claims concerning whether Rwanda may remove a person to another state in contravention of any of its international obligations, including under the Refugee Convention, or that it will not fulfil its obligations under the UK-Rwanda Treaty.
This rule would apply ‘notwithstanding’ any other provision of domestic or international law, including certain provisions of the Human Rights Act (HRA) 1998, which gives effect in UK law to most rights in the European Convention on Human Rights (ECHR).
This means that while the ECHR, the Refugee Convention, and other provisions of international and relevant national law continue to apply to the UK, they cannot be applied to the question of whether Rwanda is safe.
The Bill disapplies key provisions of the HRA, including the duty on public authorities not to act in a way which is incompatible with a Convention right, as well as the duty on the courts to ‘take account of’ relevant cases of the European Court of Human Rights (ECtHR).
However, the Bill does not disapply the section of the HRA which empowers higher courts to declare a law ‘incompatible’ with ECHR. This means that the Supreme Court could declare that the Bill (if it became law) is incompatible with the ECHR, but this would not invalidate the law or stop its legal effect.
While the Bill prevents challenges on the question of the safety of Rwanda as a country, it does allow for an individual to make an exceptional claim, based on ‘compelling evidence relating specifically to the person’s particular circumstances’, that Rwanda is not a safe country for them individually. Such an argument cannot be based on the risk of refoulement, i.e. the risk that Rwanda would then send them to another country in violation of Rwanda’s own international obligations and the UK-Rwanda Treaty. Claims can only relate to the safety of conditions for the individual in Rwanda itself; for example, if a person was at risk because they had reported critically about the Rwandan authorities. However, the Bill exempts Rwandan nationals from being sent to Rwanda and so the possibility of making claims based on particular individual circumstances is likely to apply only rarely.
The Bill permits UK courts to grant an interim remedy to prevent or delay the removal of a person to Rwanda, but sets a high bar for this to be possible: the court must be satisfied that the person would individually ‘face a real, imminent and foreseeable risk of serious and irreversible harm’ if removed to Rwanda. The Prime Minister has said this is an ‘extremely narrow exception’ and that it will be ‘vanishingly rare’ for anyone to succeed in using it.
The Bill gives government ministers the power to decide whether the UK will comply with any interim measure issued by the ECtHR in respect of a decision to remove someone to Rwanda. Interim measures are urgent orders which the ECtHR exceptionally issues where there is an imminent risk of irreparable harm. Under the Bill, UK courts are barred from having regard to any interim measure relating to the removal of a person to Rwanda.
In response to concerns expressed by some Conservative MPs during the passage of the Bill during the Commons, on 17 January, the Cabinet Office issued draft guidance that would be issued to all civil servants if the Bill passes in its current form, stating that if a minister decides not to comply with an urgent injunction of the ECtHR ‘it is the responsibility of civil servants – operating under the Civil Service Code – to implement that decision’. This does not, however, change the international legal obligation on the UK to comply, which could place civil servants in a difficult position.
If passed, the Act would come into force (start to have legal effect) on the day on which the Rwanda Treaty enters into force and would apply to any decision removing a person to Rwanda, irrespective of when that person arrived in the UK.
Why is the Rwanda Bill controversial?
The Bill has been criticised for both going too far and not going far enough in removing the UK’s international obligations to protect refugee rights. Further concerns relate to the implications for the rule of law, constitutional law and the separation of powers in the UK, as well as concerns that the Bill aims to use law to change fact, and designates Rwanda as ‘safe’ before Treaty safeguards have been introduced.
“The Bill has been criticised for both going too far and not going far enough in removing the UK’s international obligations to protect refugee rights.”
Specifically, the Bill is controversial from the following different perspectives:
- The Bill does not go far enough to prevent legal challenges based on human rights and/or international law. Immigration minister, Robert Jenrick MP, resigned on the day the Bill was published as he considered that it ‘does not go far enough’ to stop legal challenges frustrating the Rwanda policy. Former Home Secretary Suella Braverman called for the Bill to override the entire Human Rights Act, the ECHR, the Refugee Convention, and all other relevant international obligations. Eleven Tory MPs voted the Bill down at third reading, on the basis that any claim to resist removal to Rwanda, even those with a ‘vanishingly rare’ chance of success, should be disallowed.
- The Bill does not go far enough because it does not take the UK out of the ECHR. While the Prime Minister has promised that the Bill would end the interference of ‘foreign courts’, the Bill does not take the UK out of the ECHR and the government has committed to staying within it. Suella Braverman called for the UK to leave the ECHR. She said the Bill ‘won’t work and it will not stop the boats’ as it would not be a sufficient deterrent for asylum seekers wishing to enter the UK if there were a legal avenue to challenge removal by the European Court of Human Rights.
- The Bill goes too far by removing the effect of international legal obligations within the UK. As confirmed by the Prime Minister, the Rwandan government warned the UK ‘that they would not accept the UK basing this scheme on legislation that could be considered in breach of [the UK’s] international law obligations’. Commentators have highlighted the inconsistency between the expectations on Rwanda and the UK: the Treaty commits Rwanda to abide by the Refugee Convention, but the Bill explicitly excludes the Refugee Convention, and other international obligations, from consideration within the UK.
- The Bill risks violating international law, including the European Convention on Human Rights. Generally, when a bill is introduced, the relevant government minister must make a statement saying whether they consider the legislation to be compatible with human rights under the HRA. The Home Secretary was unable to declare that the Rwanda Bill is compatible. While the Bill can still be legally valid on a domestic level, this does not mean that it would remove the UK’s obligations at international level. It is possible that the ECtHR will issue interim measures if the UK seeks to send flights to Rwanda, on the basis that Rwanda is not safe for asylum seekers. If a minister chose to exercise the power not to comply with interim measures, a person could be removed to Rwanda while their case was being decided by the ECtHR, even if they faced a real risk of serious and irreparable harm. This would place the UK in breach of its treaty obligations under the ECHR. In addition, the UNHCR has stated that the Bill and the Treaty are ‘not compatible with international refugee law’.
- The Bill raises concerns about the relationship between Parliament and the courts, and the separation of powers. An expert suggested that, by limiting the possibility of judicial scrutiny of governmental actions in respect of the Rwanda policy, the Bill ‘undermines the judicial function and attempts to remove from the courts’ jurisdiction questions about the legality of Government decisions’. This raises concerns about the separation of powers between Parliament and the courts and respect for the rule of law in the UK. It is a key aspect of the rule of law that ‘people whose rights are at stake should always be able to ask a third, independent, and impartial decision-maker to check whether the infringement of her rights is lawful or not’.
- The Bill seeks to use UK law to change the facts ‘on the ground’ in Rwanda. The Bill requires decision-makers to ‘conclusively treat the Republic of Rwanda as a safe country’ for asylum seekers. The UK Supreme Court determined in November that Rwanda was not a safe country due to ‘serious and systemic defects’ in its processing of asylum claims. For example, as highlighted by the Supreme Court, citizens of certain war torn countries, including Afghanistan and Syria, have a 100% rejection rate in Rwanda, while the same nationalities are nearly always recognised as refugees in the UK. Experts note that the Bill therefore asks Parliament to create a ‘legislative fiction’, by asserting that Rwanda is safe while disallowing any judicial consideration of whether this is, in fact, the case.
- The Bill will come into force designating Rwanda as a safe country, before the UK-Rwanda Treaty safeguards to improve Rwanda’s asylum system have been fully introduced. The Bill comes into force on the day that the Treaty is ratified (assuming the Bill has passed through Parliament). However, the Lords’ International Agreements Committee stated on 17 January that ‘A significant number of further legal and practical steps are required under the treaty which will take time’. The government’s policy statement on the Bill issued on 12 December says that the establishment of new decision-making bodies within the Rwandan asylum system requires the introduction of a new domestic asylum law which Rwanda ‘will pass … in the coming months’.
What happens if the UK ignores its international obligations and the ECHR?
One possible scenario is that, if the Bill passes, removals to Rwanda could take place and be legally valid under UK law, but nevertheless breach international law. This is because the UK cannot evade its international law obligations simply by passing domestic legislation that contradicts them.
The consequences that the UK would face would be at international level. First, passage of the Bill would risk damaging the UK’s strong human rights record and reputation for commitment to international treaties.
A further concern is that, if the Bill passes, it could have a contagious effect and risk undermining the ECHR and international refugee system as a whole. Other countries, particularly those with weaker human rights records, have referred to the UK’s criticism of the ECtHR in support of their own. If the UK legislates to ignore the ECHR, and to remove the possibility of asylum seekers having claims processed in the UK, there is a risk that other countries could follow suit.
Beyond this, if it becomes law, the Bill could provoke strong responses from the US and the EU who have expressed concern about the UK’s commitment to ensuring protection of human rights post-Brexit. Both have previously underlined how the Belfast/Good Friday Agreement commits the UK to incorporating the European Convention in Northern Ireland, while the Withdrawal Agreement requires that human rights standards are not lowered there. This would also apply to the rights of asylum seekers in Northern Ireland.