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The views expressed in this briefing are personal to the authors (Alex Goodman KC, Miranda Butler and Joe Thomas) published on 12 December 2023.
1. The government has introduced the Safety of Rwanda (Asylum and Immigration) Bill (“the Bill”) in response to the decision of the Supreme Court in R (AAA and others) v Secretary of State for the Home Department¹. In that case, the Supreme Court, upholding the detailed decision of the Court of Appeal declared the government policy to transfer asylum seekers to Rwanda pursuant to an agreement with the Rwanda government to process their asylum claims in that country to be unlawful because it found that, as a matter of fact, Rwanda was not a “safe” third country. It reached that decision in part because it found there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment (meaning torture, inhuman or degrading treatment) by reason of refoulement² (i.e. return) to their country of origin if they were removed to Rwanda.
Summary of objections to the Bill
2. There are numerous objections to the Bill, but these can be summarised in the following four points:
The background to the Bill
3. The background to this issue is well known and thus is only summarised here. 99,939 people made an application for asylum in 2022³, namely about 6% of all immigrants. By comparison, 300,319 Ukraine scheme applications were made, 233,771 visas were granted and 177,950 Ukrainians arrived between March 2022 and June 2023⁴. Of those applying for asylum, about 76% are granted asylum and about 24% are refused. The government’s public focus has been on the rise in those crossing the UK in small boats from France. The small boats phenomenon over the past few years may be connected to the UK’s departure from the Dublin Convention which, prior to Brexit, prevented people claiming asylum in the UK after having already claimed in another EU country. Estimates are that those who claim asylum after crossing in a small boat comprise 37% of all asylum seekers. Nearly two thirds of those likely to be affected by the Rwanda policy arrive in the UK by other means⁵.
4. The government’s plan is to require Rwanda to assess some UK asylum seekers’ claims which, if successful, will lead to a grant of status in Rwanda and, if unsuccessful, will result in their being removed to their countries of origin (where they claimed a fear of persecution). The Rwanda proposal is expected to cover a maximum of 500 people per year, namely about 5% of those claiming asylum. It has cost the government in the region of £290M to date⁶. The government’s stated rationale for the policy is that it will deter those seeking to come to the UK in small boats. The Permanent Secretary to the Home Office has however accepted that there was no evidence to support this supposed deterrent effect, even before the recent substantial rise in the scheme’s overall cost.⁷ No research has been undertaken to support the belief that it will operate to deter asylum-seekers. The intention of this Bill is to remove the possibility of wholesale objections to the Rwanda policy, leaving the possibility of individual objections.
The source of the UK’s legal obligations to asylum seekers
5. The UK is a signatory to the UN Refugee Convention which provides protections for persons who have a well-founded fear of persecution⁸. Sections 80B-C of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) and the Immigration Rules⁹ mean that the UK authorities can rule an asylum claim to be inadmissible, with the consequence that the merits of the claim need not be considered, where the asylum seeker has the opportunity to apply for asylum in a safe third country but does not do so. The government can then remove the putative asylum seeker to any safe third country which is prepared to accept the person.
What did the Supreme Court decide?
6. The Supreme Court held that relocating asylum seekers to Rwanda would be unlawful because the UK government would be in breach of protections against torture, inhuman and degrading treatment¹⁰, all rights under the European Convention of Human Rights (“ECHR”). Section 6 of the Human Rights Act 1998 (“HRA”) provides it is unlawful for a public authority to act in a way which is incompatible with an ECHR right. The government was also found to be in breach of section 2 of the Asylum and Immigration Appeals Act 1993, which gives domestic application to article 33 of the UK Refugee Convention and in breach of other longstanding domestic legislation.
7. The Supreme Court also emphasised that the principle of non-refoulement is given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. The Supreme Court commented that “It [the principle of non-refoulement] 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”. The Supreme Court held that, on the current evidence, there are substantial grounds for believing that asylum seekers who were removed to Rwanda would face a real risk of ill-treatment by refoulement, given (i) the general human rights situation in Rwanda, (ii) the inadequacy of Rwanda’s asylum system, including its history of refoulement, and (iii) Rwanda’s failure to comply with assurances which it had given to the Government of Israel under a similar agreement.
8. Parliament has defined what is meant for a country to be “safe”. Section 80B of the 2002 Act¹¹provides that a country is a “safe” country if:
“(a) the claimant’s life and liberty are not threatened in that State on account of their race, religion, nationality, membership of a particular social group or political opinion;
(b) the State is one from which a person will not be sent to another State –
(i) Otherwise than in accordance with the Refugee Convention, or
(ii) In contravention of their rights under Article 3 of the Human Rights Convention (freedom from torture or inhuman or degrading treatment), and
(c) a person may apply to be recognised as a refugee and (if so recognised) receive protection in accordance with the Refugee Convention, in that State”
9. Where an asylum-seeker is deemed to have a connection with a safe third country (which applies to nearly all asylum-seekers who enter the UK) their claim may be deemed inadmissible and they may thereafter be removed from the UK to “any other safe third state”.¹²
10. The question as to whether a proposed country is or is not a “safe country” for asylum seekers is presently a matter to be determined by the courts on the facts. If the court decides that, based on factual evidence, there are substantial grounds for believing that a country is not a safe country, then the government is unable to refuse to consider a person’s asylum claim because the person refuses to go to live in that country. In the AAA case, the United Nations High Commission for Refugees (“UNHCR”) provided evidence of Rwanda’s history of refoulement, and of defects in its asylum system and hence Rwanda could not be relied upon to comply with its obligations under the Refugee Convention. The Supreme Court accepted that evidence. Lord Reed said¹³:
“In 2017, in proceedings to which the Secretary of State was party, the Divisional Court found that Rwanda was “a state which, in very recent times, has instigated political killings, and has led British police to warn Rwandan nationals living in Britain of credible plans to kill them on the part of that state”: Government of Rwanda v Nteziryayo [2017] EWHC 1912 (Admin), para 370”
11. The Court also said at paragraph 96:
“There is no dispute that persons who were relocated under the agreement¹⁴ suffered serious breaches of their rights under the Refugee Convention. UNHCR found that asylum seekers who arrived in Rwanda under the arrangement were routinely moved clandestinely to Uganda”
12. The Supreme Court also identified structural shortcomings in the Rwandan legal system, including noting that the Rwandan authorities refused all asylum claims from Syria, Afghanistan or Yemen in 2020-2022, despite those countries having grant rates of up to 98% in the UK.¹⁵ The Court also found that “the right of appeal to the High Court [against refusals of asylum] is completely untested, and there are grounds for concern as to its likely effectiveness”, noting that “structural changes and capacity building” would be needed to address these concerns.¹⁶ The Supreme Court thus concluded that there were substantial grounds for concluding that Rwanda was not a safe country and thus the government could not rely on an offer of relocation to Rwanda as a basis for refusing to consider a person’s asylum claim.
The recent Rwanda/UK Treaty
13. On 6 December 2023 the UK Secretary of State for the Home Department signed a document that calls itself an “Agreement” with the government of Rwanda¹⁷ (“the Treaty”). The Treaty describes itself as creating a “…partnership for dealing with Relocated Individuals, including in the consideration and determination of claims for refugee status”¹⁸. The Treaty deals extensively with refoulement. There is nothing in the Treaty to provide guarantees that the issues identified by the Supreme Court concerning structural issues in Rwanda around its the approach to human rights will be addressed¹⁹. The Supreme Court concluded that the conditions on the ground were unlikely to change, “at least in the short term”.²⁰
14. Once a person has been relocated to Rwanda, that person is said to have the “rights and treatment” set out Part 1A of Annex A of the Treaty. The Treaty lists a series of practical rights concerning accommodation, food, education etc. However, there is nothing in the Treaty about Rwanda committing itself to asylum seekers enjoying the right of free speech, political freedoms, religious freedoms or any other rights under the UN Human Rights Convention or as required to fulfil Parliament’s own definition as to what is a safe country.
15. In the Supreme Court judgement, Lord Reed said at paragraph 76:
“Most human rights violations were said to be linked to criticism of the Rwandan government. There were also said to be constraints on media freedom and political activities. Refugees had not been generally ill-treated, but there had been exceptions when they had expressed criticism of the government.”
16. It is a condition of being a “safe” country under the 2002 Act and the Immigration Rules that a person will not be “threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country”. At present there is ample evidence that persons are threatened in Rwanda if they express political opinions against the Rwandan government or do anything which is perceived as being critical of the Rwandan government, whether linked to exercising their right to free speech, religion, race or other characteristics.
17. By this newly proposed Bill, the UK government is thus proposing to remove a cohort of asylum seekers to a country where there is a record of breaches of human rights. The terms of the Treaty provide no guarantees that Rwanda will respect the human rights of those who are removed there. Of particular concern is that, according to the Supreme Court, there is a real likelihood that Rwanda will remove asylum seekers whom the UK has sent there to countries where they are likely to be tortured. Parliament is being asked to consciously commit people to torture. The way in which the government invites Parliament to do this is to pretend that Rwanda is a permanently safe country by declaring it safe, even though the evidence shows it is not. This is why it might be said that the bill legislates for a lie.
The legal effect of a Treaty
18. A Treaty is an agreement between governments. There is no provision in the Treaty to require the obligations in the Treaty to become part of UK or Rwandan domestic law²¹ and the fact that the UK and Rwandan governments have signed this Treaty does not, of itself, give any legal rights to an asylum seeker to require the UK or Rwandan governments to comply with the terms of the Treaty or provide any legal remedy where its terms are breached.²² Although there is a dispute resolution mechanism within the Treaty, the only parties who appear to be able to raise a dispute are the UK and Rwandan governments. It follows that²³ the Treaty almost certainly does not give any directly enforceable legal rights to any individual who is proposed to be removed or who has been removed.
How does the Bill seek to reverse the Supreme Court decision?
19. The preamble to the Safety of Rwanda (Asylum and Immigration) Bill (“the Bill”) provides:
“I am unable to make a statement that, in my view, the provisions of the Safety of Rwanda (Asylum and Immigration) Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill”
20. The “Convention” in question here is the European Convention on Human Rights²⁴ (“ECHR”), which was brought into effect as part of UK domestic law by the Human Rights Act 1998 “(HRA”). Section 19 HRA provides that a Minister must make a statement before the Second Reading of every Bill to say whether, in his view, “the provisions of the Bill are compatible with the Convention rights”. Hence, the above statement is an admission that if the Bill is passed, it will (or may) breach the obligations that the UK government has signed up to under the ECHR.
The irrebuttable presumption in the Bill that Rwanda is a safe country for refugees
21. Clause 2(1) of the Bill provides:
“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”
The term “decision maker” includes the Courts. It follows that, if the Bill is passed, it is not legally permissible for a court to consider whether to block the removal of a person to the Republic of Rwanda on the grounds that the Republic of Rwanda is not a safe country: see clause 2(3).
22. As a matter of law, this clause introduces an irrebuttable presumption that, as a matter of legally deigned fact, Rwanda is a “safe” country for all purposes and for all time, when it is already known that is not safe and is unlikely to be in the near future.
23. The recently signed Treaty seeks to commit Rwanda not to breach its obligations on non- refoulement. However, it gives an asylum seeker in Rwanda no legal right under domestic Rwandan law to prevent refoulement. As the Court of Appeal and Supreme Court found, Rwanda has breached treaties on refoulement in the past and it is unclear if it will comply with its Treaty obligations on refoulement in the future. The Treaty does not recognise what the Supreme Court said was the need for wider political reform to respect human rights or require such changes. These concerns are not just a matter of conjecture: The Supreme Court held that Rwanda had, when operating a similar arrangement with Israel between 2013 and 2018, breached non-refoulement obligations. In practical terms this means that parliament is being asked to legislate for a policy likely to result in people being tortured.
24. Nor does the Treaty address the issue left open by the Supreme Court (because it did not need to deal with it) as to whether a person might be subjected to torture, inhuman or degrading treatment within Rwanda.
25. Clause 2 of the Bill also prevents anyone leading evidence in a court to show that Rwanda is not generally a safe country. Thus, if the Bill becomes law, it will impose a legal duty on all government officials and the courts to make the decision that Rwanda is a safe country when:
a. The Supreme Court has decided that there are substantial grounds for believing that it is not a safe country; removal there would not satisfy the terms of s. 80B(6) of the 2002 Act.
b. the risk of refoulement remains as identified by the Supreme Court; and
c. The Treaty signed by the government with Rwanda does not do enough to ensure that, even if its obligations were honoured, Rwanda will become a safe country as defined by domestic law²⁵. The Supreme Court itself noted that structural changes in Rwanda would be required before it could be presumed (as a matter of fact) that people would not be returned onward from Rwanda to face torture or other ill treatment.
d. There are well documented breaches of freedom of expression and no permissible diversity of political opinion in Rwanda.
The precedence of the Bill over the Human Rights Act 1998
26. Clause 3 of the Bill disapplies key provisions of the HRA in relation to the terms of the Bill.²⁶ Hence, there is no duty on public bodies or the Courts to make decisions which give effect to ECHR rights when making decisions about whether Rwanda is a safe country, nor can the courts quash those decisions on the basis that they breach the ECHR. The HRA was specifically designed to ensure that Parliament would have the right to legislate to allow public officials to act in breach of a person’s convention rights in primary legislation, but required the legislation to make it clear that this is what it is doing. This Bill accepts, on its face, that its provisions allow government officials to breach the human rights of asylum seekers.
27. Article 46 of the ECHR provides “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. That means that the UK agrees to abide by any final judgment of the European Court of Human Rights (“ECtHR”). However, if a state fails to abide by a decision of the ECtHR, the remedy is to refer the matter to the Council of Europe Council of Ministers. The ECtHR does not have the ability to impose any sanction on a state that breaches its rulings or otherwise enforce the terms of its rulings.²⁷
28. Rule 39 of the Rules of the ECtHR allow the ECtHR to take “interim measures”. This was the rule used to prevent removals to Rwanda in June 2022.²⁸ The UK has always committed itself to observe Rule 39 interim measures as part of the obligation of the UK under Article 34 of the Convention not to hinder the exercise of the right to individual application and as a commitment deriving from Article 31(3) (b) of the Vienna Convention on the Law of Treaties. But it is untested whether interim measures are legally binding in UK domestic law²⁹. However, clause 5(2) of the Bill provides “It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure” and clause 5(3) provides that a court cannot take an interim measure into account, even if the Minister has not blocked it. These provisions appear a breach of the UK’s obligations under articles 13 ECHR (which requires member states to provide an effective remedy for infringements of rights in domestic law, including by giving effect to interim measures)³⁰ and article 34 ECHR. It also appears to be a breach of the Vienna Convention.
29. Given the findings of the Supreme Court, the provisions of the Bill taken as a whole appear to commit the UK to acting in a manner which breaches the Convention rights of asylum seekers by refusing to allow individuals to have their asylum claims assessed on their merits in the UK on the grounds that the individual can be removed to a country which is not objectively “safe”. That action breaches the UK’s obligations under the Refugee Convention and under the ECHR (as the Bill accepts on its face).
The carve out for individual cases
30. Clause 4 of the Bill provides a limited carve out for individuals to be able to argue that, in their particular case, Rwanda is not a safe country. They are only entitled to do so on the basis of “compelling evidence relating specifically to the person’s particular individual circumstances” which leads a court to conclude that “Rwanda is not a safe country for the person in question”. Injunctions to prevent a person’s removal can be issued only in the narrow circumstances where they can show “a real, imminent and foreseeable risk of serious and irreversible harm” following removal. However, it is wholly unclear how this is expected to operate in practice because the circumstances of an individual have to be contrasted with any grounds based on arguments “that the Republic of Rwanda is not a safe country in general”.
31. It is relatively easy to see how this could operate in the hypothetical case of a person who is able to lead compelling evidence that they are gay, or of a particular religion, and could show that it would not be safe for them to be in Rwanda as a gay person or as a member of a religion which is persecuted in that country. But outside of that obvious case, the approach taken by the courts is unclear in the case of someone who, for example, has a long history of political activism and says that political activists are persecuted in Rwanda if their political activism is perceived to be a threat to the existing Rwandan government³¹.
The permanent effects of the Bill but the temporary nature of the Treaty
32. The Treaty ends on 13 April 2027 but, during that period, is terminable on 3 months’ notice by the government of Rwanda or the government of the UK³². However, once the Bill is made law, Rwanda is required to be treated as a safe country permanently. Thus, if the Treaty comes to an end and all protections are removed, Rwanda still has to be treated as a safe country.
Does the Bill commit the UK to acting in breach of international law?
33. Compliance with “international law” is usually taken to mean compliance by a state with the promises and commitments made by a state in the international treaties to which that state is a party³³. The UK is a party to the Refugee Convention and to the ECHR and thus the UK state has made commitments to abide by the terms of those treaties in all of its actions. For the reasons set out above, this Bill commits the UK government to a course of action which has been demonstrated to be objectively in conflict with the UK government’s duties under both Refugee Convention and the ECHR. Parliament has the power, of course, to legislate to do something which breaches the UK’s obligations under international law. It is however clear that passing this Bill would inevitably involve the UK state acting in breach of UK’s obligations under international law.
34. That is not just a dry legal issue: parliament is being asked to commit the UK to breaching obligations to protect people from torture.
35. This Bill is also not just a Bill about immigration. Its implications are of a constitutional order. It involves an incremental step towards a new kind of “Brexit” from commitment to international treaties, Courts and norms. The motivation for this apparently stems in part from a perception amongst some commentators (including Lord Sumption) that the European Court of Human Rights has expanded its own rule 39 jurisdiction beyond proper bounds. However, rule 39 has operated for decades and to our knowledge has never faced a direct legislative challenge of this kind in signatory countries. That is not to say there are not acts of non-compliance, but direct confrontation with the Court’s jurisdiction is a new departure.
36. The potential political and international ramifications for the UK of exempting itself from its duties under article 34 of the ECHR and from compliance with the European Court of Human Rights have not been the subject of much debate in the narrow focus on the effectiveness of an immigration policy. It is however, potentially a much more significant issue than the ability to deter people arriving by small boat. The UK was a leading light in drafting the ECHR, which was itself based on UK common law. The UK remains an important liberal democracy, setting standards particularly for Commonwealth countries. Its departure from compliance with its obligations under the ECHR and defying the authority of the European Court of Human Rights so as to allow it to expose people to a risk of torture will inevitably reduce the UK’s standing in the world and may perhaps weaken human rights globally too.
Legislating Facts
37. It is of some note that this is the second time this term that parliament has been asked by the government to legislate in a way which would purports to declare facts to be other than they really are (the House of Lords rejected the previous attempt at a legislative pretence that new development causes no pollution to sensitive habitats³⁴).
38. In classical legal theory, parliament can do anything and can declare anything to be the case. Sir Ivor Jennings QC, a famous British constitutional lawyer, explained that the Westminster Parliament, was the supreme law-making body in the UK and had the power to pass any law it liked. Jennings said that Parliament could pass a law making it unlawful to smoke cigarettes or cigars in the streets of Paris. Thus, Parliament could declare that the United States remained a territory of the Crown, even though this was not factually true.
39. However, treating legislation as enjoying an almost magical power to enforce a change the underlying problems of reality is itself a constitutional innovation that requires some deep thought. Laws that require counter-factual assumptions to inform administrative and judicial decisions, have serious implications in upending the fairly basic premise that rationality should be a foundation of administrative and judicial decision-making.
Implications for Separation of Powers and Rule of Law
40. The government appears to believe that the problems in Rwanda are solved by the Treaty, but (a) the Treaty changes nothing on the ground in terms of the political, social and judicial structures in Rwanda, (b) the Treaty gives no legal rights to those who are supposed to benefit from its terms and (c) it only attempts to deal with refoulement but not with other issues, including risks of ill treatment within Rwanda itself. The mechanism the government have chosen to solve this issue involves a substantial challenge to the constitutional principle of the separation of powers. It is seeking to legislate away the effect of a unanimous decision of the Supreme Court on a matter of fact which affects key fundamental rights. It seeks to do so by compelling the courts to assume that the facts have changed (when they have not) and ousting their ability to interrogate whether a person’s fundamental rights, including the absolute right not to be subjected to torture, may be engaged.
41. Lord Carnwath expressed the balance in the UK’s constitutional arrangements in Privacy International in this way: “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review”.³⁵ Similarly, in R (Jackson) v Attorney General, Baroness Hale emphasised that “[t]he courts will treat with particular suspicion (And might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”.³⁶
42. The Bill implicitly poses a challenge to rule of law and to the constitutional balance of powers in the UK. The UK constitution is a rarity in not having an entrenched written constitutional document (Israel and New Zealand being the only two other exceptions, at least among democracies). In that respect the UK constitution depends more heavily on collaboration and mutual respect between the executive, legislature and the courts³⁷. The Bill poses a challenge to that balance. One wider component of that challenge is its overriding of the well-established principle nemo iudex in sua causa: that nobody should be a judge in their own cause since a consequence of the Bill will be that an independent Court may not entertain a claim by a person that the government is infringing their fundamental right not to be subjected to torture.
43. Whether or not the courts accept that they are required to treat Rwanda as a safe country when, on the facts and applying the test laid down by parliament in section 80B of the 2002 Act, it is plainly not a safe country remains to be seen.
Footnotes
¹ [2023] UKSC 42 [2023] 1 W.L.R. 4433 See https://www.supremecourt.uk/cases/docs/uksc-2023-0093-press-summary.pdf for a summary of the decision and https://www.supremecourt.uk/cases/docs/uksc-2023-0093-etc-judgment.pdf for the full judgment.
² Refoulement is the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution.
³ See https://commonslibrary.parliament.uk/research-briefings/sn01403
⁵ See “Small boat arrivals accounted for over one-third (37%) of the total number of people claiming asylum in the UK in the year ending June 2023”: see https://www.gov.uk/government/statistics/irregular-migration-to-the-uk-year-ending-june-2023/irregular-migration-to-the-uk-year-ending-june-2023
⁶ Numerous reports including https://www.lbc.co.uk/news/rwanda-scheme-290m-cost-400000-asylum-claims/
⁸ For the full text of the United Nations 1951 Convention relating to the Status of Refugees (Cmd 9171) and its 1967 Protocol (Cmnd 3906) see https://www.unhcr.org/uk/about-unhcr/who-we-are/1951-refugee-convention
¹⁰ As is well known, these protections are in article 3 of the European Convention of Human Rights and are part of UK domestic law by reason of the Human Rights Act 1998.
¹¹ As amended by the Nationality and Borders Act 2022. S. 80B(4). For claims made before 28 June 2022 the relevant framework is contained in archived Immigration Rules 345A to D.
¹² S. 80B(6) 2002 Act. For claims made before 28 June 2022, the relevant provision is paragraph 345C of the archives Immigration Rules.
¹³ See paragraph 76.
¹⁴ This is a reference to an agreement that Rwanda had with Israel to take refugees who arrived in Israel and claimed asylum.
¹⁵ Para 85.
¹⁶ Para 105.
¹⁸ See article 2.
¹⁹ Annex B to the Treaty requires Rwanda to set up an appeals system for the consideration of asylum claims. While there are assurances in the Treaty as to the nature and qualifications of that body, the issues identified by the Supreme Court are matters of substance not form; thus the fact that Rwanda has in principle agreed to these conditions should not lead Parliament to consider that it would in practice be able to comply with those obligations; similar assurances were made in the first MEDP but were found by the Supreme Court not to be sufficient to prevent a real risk of refoulement and human rights breaches. Further, as Mark Elliott has noted, “the Bill reveals an astounding level of hypocrisy in the sense that it is premised on a policy that presupposes that Rwanda will honour its obligations in international law while demonstrating that the UK is prepared to breach its own obligations” The Rwanda Bill and its constitutional implications: Public Law for Everyone, 6.12.2023.
²⁰ Para 93, and 102 in which the Court held “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”
²¹ There is an exception for data protection rights in paragraph 14 of Annex C which provides that the Rwandan and UK governments must put in place effective judicial remedies for breaches of these obligations.
²² See Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 where the Supreme Court acknowledged that, at the international level, “the general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts - see Civil Service Unions case cited above, at pp 397-398.” But it went on to explain: “This principle rests on the so-called dualist theory, which is based on the proposition that international law and domestic law operate in independent spheres. The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state. …. The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law”.
²³ This passage is expressed in conditional terms. There may be arguments to the contrary but such arguments are unlikely to succeed.
²⁴ The ECHR is a Treaty of the Council of Europe. Britain remains a member of the Council of Europe notwithstanding its departure from the European Union.
²⁵ Even if the Rwandan government complies with its refoulement obligations even though there is no legal mechanism to require it to do so.
²⁶ It does not disapply s. 4 HRA, which allows courts to make declarations of incompatibility, i.e. declarations that legislation is incompatible with the rights protected under the ECHR. However, such declarations do not affect the validity or operation of the legislation in question and therefore this remedy would not prevent asylum seekers being removed to Rwanda.
²⁷ Russia routinely failed to comply with judgments of the ECTHR and was finally expelled from the Council of Europe in March 2022.
²⁹ The UK has once before refused to comply with article 39 interim measures in the case of Al-Saadoon who was returned to Iraqi authorities. The UK justified this to the Court as a wholly exceptional case and on that basis that it did not breach article 34 of the Convention. The present Bill would however institutionalise non-compliance with the European Convention and with the authority of the European Court of Human Rights in relation to its jurisdiction to grant rule 39 interim measures.
³⁰ De Souza Ribeiro v France (2014) 59 E.H.R. 10 (Grand Chamber). The Court held that, by rendering available remedies ineffective in practice, there was a breach of Article 13 ECHR.
³¹ If this clause survives in the Bill as it proceeds through Parliament, it seems unlikely that anyone will be removed until its precise meaning has been determined by the Court of Appeal and/or the Supreme Court.
³² See article 23(5).
³³ See for example https://www.un.org/en/global-issues/international-law-and-justice and Lord Mance’s speech at https://www.supremecourt.uk/docs/speech-170213.pdf In the absence of a single court which defines the nature of the obligations of those who are within its jurisdiction, the concept of “international law” lacks a hard- edged element.
³⁴ See further Alex Goodman KC’s advice here: https://static1.squarespace.com/static/62544cf5f2e0540b78c0a27f/t/64f5a90525fd7524b74b3f9a/1693821189715/Advice+on+Nutrient+Neutrality+Amendments+AGKC+FINAL+1.9.pdf
³⁵ R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, para 131.
³⁶ [2005] UKHL 56 at para 159.
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