The Safety of Rwanda (Asylum and Immigration) Act

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  1. The evening of 22 April 2024, the Safety of Rwanda (Asylum and Immigration) Bill completed its passage through Parliament. The Act received royal assent on 25 April 2024 (“the Rwanda Act”/“the Act”).
  2. The background to the Act is well-known. The Government had sought to implement a policy of removing certain asylum seekers to Rwanda for their asylum claims to be considered there, on the basis of powers to remove asylum-seekers to a ‘safe’ third country in certain circumstances. The Supreme Court in the AAA[1] case resoundingly concluded that this policy was unlawful because Rwanda was not a safe country in general (i.e. not on the facts of any specific case), in particular because asylum-seekers removed there would face a real risk of ill-treatment by onward refoulement.[2]
  3. The Rwanda Act is the Government’s response to AAA. A crucial point made by the Supreme Court was that the assessment of the risk of refoulement was a matter for the courts, taking into account the Government’s view but not dictated by it. It is that point, in particular, that the Government has decided it wishes to challenge. According to the Government’s press release, “[t]he landmark legislation means that going forward, Rwanda should be deemed a safe country for the purposes of relocating people, including in UK courts and tribunals.” In the Government’s proposed scheme, the question of whether or not Rwanda is a safe country in fact is to be taken entirely out of the hands of the judicial branch, and answered conclusively by Parliament in the Act.
  4. The problems with the Government’s underlying policy have been set out and discussed widely, including in parliamentary debates in the Lords. Many are currently attempting to work out the practical implications of the Rwanda Act, and to assess how the Government intends to apply it. Meanwhile, the Government is, as might be expected, energetically pursuing its own messaging on the subject. Against that backdrop, this article sets out a few thoughts, based on an initial analysis of the Act, regarding how the core purpose of the Act – to deem Rwanda a safe country in all removal cases – might be approached by and challenged in the courts.

    How is the deeming effect of the Rwanda Act intended to operate?
  5. How does the Act seek to achieve its main goal? As follows:
    • Section 2(1) provides that “every decision-maker must conclusively treat the Republic of Rwanda as a safe country”. A decision-maker is defined as (a) the Home Secretary or an immigration officer making a decision relating to the removal of a person to Rwanda and, of particular relevance for present purposes (b) a court or tribunal (“the courts”) considering such a decision.
    • Section 2(3) and (4) provide that the courts “must not consider” a review or appeal relating to removal to Rwanda “to the extent that the review or appeal is brought on the grounds that [Rwanda] is not a safe country” and that, in particular, the courts “must not consider any claim or complaint” that Rwanda will (a) contravene its refoulement obligations (b) fail to provide fair and proper consideration of an asylum claim or (c) not act in accordance with the UK-Rwanda Migration and Economic Development Partnership entered into by the UK and Rwanda subsequent to the AAA judgment (“the Rwanda Treaty”).
    • Section 2(5) provides that section 2(3) and 2(4) shall “apply notwithstanding” any provision of the Immigration Acts, the Human Rights Act 1998 (“the HRA 1998”) “to the extent disapplied by section 3”, “any other provision of rule of domestic law (including any common law)” and any interpretation of international law by the court. Section 3, in turn, disapplies certain provisions of the HRA 1998. More on this below.
    • Section 4(1), importantly, provides that section 2 does not prevent the decision-maker from deciding/considering (as the case may be) whether or not “Rwanda is .. a safe country for the person in question, 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)”. By section 4(2), however, section 4(1) 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 [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).”
  6. This is how the Act defines a “safe country” at section 1(5):
    “For the purposes of this Act, a “safe country”—
    (a) means a country to which persons may be removed from the United Kingdom in compliance with all of the United Kingdom’s obligations under international law that are relevant to the treatment in that country of persons who are removed there, and
    (b) includes, in particular, a country—
    (i) from which a person removed to that country will not be removed or sent to another country in contravention of any international law, and
    (ii) 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.”
  7. It will be noted that the question of a safe country is answered solely by reference to the position at international law. Section 1(6) lists what international law includes, which includes the European Convention on Human Rights (“ECHR”) and the Refugee Convention.

    What approach might the courts take to interpretation of the provisions of the Rwanda Act?
  8. The courts given effect to certain constitutional principles through principles of statutory interpretation. Given the purpose of the Rwanda Act and how it operates (and subject to the effect of the carve out of the common law at section 2(5)), it seems likely that these constitutional issues are likely to inform the courts’ approach to interpretation of the Act. The following are likely to be considered of particular relevance:
    1. The principle of legality. “Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”[3]
    2. The presumption against ouster or removal of judicial jurisdiction. “It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights in not to be excluded except by clear words”.[4]
    3. The fundamental right to access to the courts. See R (Unison) v Lord Chancellor, where the Supreme Court held, in light of the constitutional right of access to justice, that a fees order “effectively prevents access to justice, and is therefore unlawful”.[5]
  9. The reason those principles are particularly relevant here is that the principal mechanism by which the Rwanda Act seeks to achieve its objects is by excluding judicial function and, accordingly, judicial independence, to a very significant, perhaps unprecedented degree. The Act is concerned with removing asylum-seekers to Rwanda. The way in which it achieves this object, however, is by preventing the courts from conducting an assessment of whether or not Rwanda is safe – certainly in relation to the risk of onward refoulement at the very least. In stripping asylum-seekers facing removal of their right to have the merits of their complaint that they are at risk of onward refoulement adjudicated, the Act simultaneously seeks to deprive the courts of that function, which so recently undermined the Government’s Rwanda policy. In constitutional terms, therefore, it seems fair to describe the Rwanda Act as an attempt by the legislature/executive to cut down drastically the competence of the judicial branch in relation to one specific area of decision-making.[6] That is the means by which the Rwanda Act achieves its goal.
  10. Thus, the central purpose of the Act is steeped in, if not hostility to, at least distrust of, the judicial branch. This theme is also evident in a subtler form in the way in which the Act seeks to control the courts’ interpretation of it. Taking the Act at face value:
    1. The striking breadth of legal rules which are deemed not to affect the operation of the Act by section 2(5): on the face of it, all statute, all common law, any interpretation of international law and the HRA 1998 as specified. In other words, the courts are to empty their institutional minds of (pretty much) the whole of the law to the extent it contradicts the provisions of the Act; but to hold in their institutional minds the remainder of the law that does not. Or perhaps the courts are simply to empty their minds of the law and interpret the Act in a vacuum. In any event, the underlying message seems to be that the Act is to be interpreted exactly as Parliament says.
    2. The purpose clause at section 1(1) is unusual and in a similar vein, in that it seeks to both define the statutory purpose and then dictate that removal to Rwanda is consistent with that statutory purpose. Section 1(1) describes the purpose of the Act as being to “prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes”. However, it then goes on to tell the courts, inferentially, that “enabling the removal of persons to [Rwanda]meets such a purpose.
    3. The air of an alternative statutory interpretation universe is reinforced in sections 1(2) to (4), which record (i) that the Rwanda Treaty has been laid before Parliament and that the Act “gives effect to the judgment of Parliament that [Rwanda] is a safe country”; (ii) Rwanda’s obligations under the Rwanda Treaty and (iii) that Parliament is sovereign and that the validity of the Act is unaffected by international law. These are either facts or statements of trite principle. Why are they there? One explanation might be that, in the mind of the drafter, once the legal universe has been excluded in accordance with section 2(5), these are the crumbs of legal and factual reality to which the courts are permitted to turn in order to supply the context required to carry out the act of statutory interpretation.[7]
  11. How might these above-mentioned constitutional principles be brought to bear on interpretation of the Rwanda Act, given its nature and effect, particularly in terms of the constitutional relationship between the legislature and the courts? In general terms, they might translate into a reasonable appetite on the part of the courts to interpret the Rwanda Act so as to limit its scope and application. More specifically, a few thoughts.
  12. First, section 2(3) and (4) seek to buttress the deeming provision at section 2(1) by prohibiting the courts/tribunals from considering whether Rwanda is a safe country. This prohibition has effect “to the extent that the review or appeal is brought on the grounds that [Rwanda] is a safe country” or “any claim or complaint” is made as to certain risks associated with such an argument. What, however, of a situation where there is no such ground of challenge or no such complaint? On the strict wording of those provisions, the courts are not in that situation precluded from considering whether Rwanda is a safe country – that is, of their own accord.
  13. It might reasonably be said that the argument has the slightly odd, or perverse, result that appellants/claimants who do not raise an argument about the safety of Rwanda are in a better position than those who do not. That seems correct as far as it goes, albeit it may also, in conjunction with this argument, be possible to take aim at the ‘remaining’ effect of section 2(3) and (4) under the HRA 1998 – see below. Further, it would need to be said that restrictions on fundamental rights ought to be interpreted as narrowly as possible, and their broader application by inference should be resisted to the extent possible.
  14. Secondly, there is the question of the extent of the carve-out in section 4(1). What are circumstances relating specifically to the person’s particular individual circumstances as distinct from arguments that Rwanda is not a safe country in general? The distinction sounds simple to state but, on application, the clarity of the distinction appears to crumble. At one end of the spectrum, an appellant or claimant clearly need not show that the risk is one that results only to them. At the other end of the spectrum, an argument that Rwanda is unsafe irrespective of how might be removed there – i.e. a systemic challenge – appears clearly precluded. Is a risk based on membership of a group and a factual proposition regarding how that group is treated in Rwanda part of the individual circumstances analysis? In my view, there is a reasonable argument available that the application of a general proposition about the situation in Rwanda to an individual should be considered permissible under section 4(1). That gives a clear boundary to the distinction and clarifies that what section 4 does, effectively, is to exclude systemic challenges. That interpretation is also supported by the terms of section 4(2), which goes to the trouble of spelling out that consideration of whether the risk of onward refoulement (a general question about Rwanda) to “the person in question” is excluded from the section 4(1) analysis. In other words, were it not for section 4(2), such an analysis would have fallen within section 4(1).
  15. Thirdly, in considering whether Rwanda is a safe country, individual circumstances may be taken into account under section 4(1) of the Act, but section 4(2) precludes consideration of whether Rwanda will remove the person concerned “in contravention of any of its international obligations”. Rwanda (unlike the UK, see below) has a monist legal system, meaning that international law is directly effective within its domestic legal order: see Articles 95 and 168 of the Constitution of Rwanda. Article 168 provides that “Upon publication in the Official Gazette, international treaties and agreements which have been duly ratified or approved have the force of law as national legislation”.[8] Therefore, Rwanda’s international obligations are also its domestic obligations.[9] So, it could be argued that there is nothing in section 4(2) that stops the courts from considering whether Rwanda is acting in accordance with its domestic obligations. Why would the UK courts wish to do such a thing? Well, the question under the Act is whether Rwanda is acting in accordance with its international law obligations. As those obligations are mirrored precisely in Rwanda’s domestic obligations, and section 4(2) does not prohibit consideration of those domestic Rwandan obligations, the courts could perfectly well answer the question of whether Rwanda is a safe country to which a person could be removed in compliance with the UK’s obligations under international law by inquiring into whether Rwanda is acting in breach of its domestic obligations that reflect international law.
  16. Fourthly, it seems to me that the courts are likely to take the view that the generalised disapplication of the common law in s.2(5)(c) – in brackets, no less – is not, per the principle of legality, clear enough to disapply the constitutional principles and principles of statutory interpretation set out above; this is a classic example of a general provision seeking to remove a fundamental common law value, which the courts would traditionally interpret as subject to said common law values.

    Beyond interpretation?

  17. There is clearly some force in the argument that clear words have been used in the Act to exclude judicial examination of the safety of Rwanda. No doubt it will be said, on behalf of the Government, that it was scarcely possible to use words clearer than those found in section 2 of the Act. Putting aside the HRA 1998 for a moment, could the courts be persuaded to go further than statutory interpretation and to refuse to apply/recognise the Rwanda Act, given the constitutional travesty it might be said to represent?
  18. The above-mentioned constitutional principles do have some bite beyond the context of statutory interpretation. The courts have at times, invariably obiter, intimated that Parliamentary sovereignty has limits and there is a point beyond which Parliament cannot legislate at all.

    “[the Act under consideration] could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. (…) The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom [in light of the Scotland Act 1998 and the Human Rights Act 1998]. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.”[10]
  19. And further:

    “The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind [e.g. to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual] is not law which the courts will recognise.”[11]
  20. The heart of the Rwanda Act’s extraordinary deeming effect is, of course, section 2. The unusual feature of this aspect of the Rwanda Act is perhaps not its jurisprudential nature in this respect but the scale of the departure from reality that it dictates – how far the deeming effect goes. The Act raises the question of just how far Parliament can go with a deeming provision. Could an act deem that all persons prosecuted for an offence are to be deemed guilty? Or that all civil claims issued by persons with the name Adam are to be deemed withdrawn on issue? Or that the Conservative Party shall be deemed to have won the majority of seats at all elections hereafter?
  21. So, it is section 2 that a claimant might most obviously ask the Court not to recognise due to its intended effect of abolishing the judicial function insofar as the question of the risk of refoulement (in particular) from Rwanda is concerned. What are the prospects for this radical argument?
  22. The courts have kept their powder dry on the potential power to not recognise legislation. Might we glean any guidance from the examples given? Abolition of judicial review is an example given in both extracts above. Here, judicial review has not been abolished. However, insofar as the deeming effect of the Act is concerned, we do appear to be in a distinct situation from those systemic challenges where what is in issue is whether some system which on its face cuts down certain rights, in reality, be implemented and executed without cutting out the core of the substantive right in question. The Act’s effect in this respect leaves no space between theory and practice. The courts simply cannot (on the face of the Act) take account of the risk of refoulement from Rwanda; they must, at least to that extent, deem it to be safe whether or not it is. So, in respect of that issue, judicial oversight and scrutiny has been abolished. The analogy with abolition of judicial review may not, therefore, be an entirely unreasonable one.
  23. The legislature has generally had the good sense not to test the limits of the branch of judicial sentiment outlined above. Could the Rwanda Act be the first to truly do so?

    The Human Rights Act 1998
  24. The Rwanda Act is only the fourth piece of legislation enacted since the Human Rights Act 1998 where the Minister has felt unable to make a statement to the effect that its provisions are compatible with Convention rights under the ECHR.[12] Perhaps unsurprisingly in that context, section 3 of the Act sets out a detailed disapplication of the Human Rights Act 1998. Section 3 provides, so far as relevant, as follows:

    “(1) The provisions of this Act apply notwithstanding the relevant provisions of the Human Rights Act 1998, which are disapplied as follows.
    (3) Section 2 does not apply where a court or tribunal is determining a question relating to whether the Republic of Rwanda is a safe country for a person to be removed to under any provision of, or made under, the Immigration Acts.
    (4) Section 3 does not apply in relation to this Act.
    (5) Sections 6 to 9 do not apply in relation to—
    (a) a decision taken on the basis of section 2(1) of this Act (decision-makers to treat Rwanda as safe) (…)[13]
  25. What arguments remain for the application of the HRA 1998 to the Rwanda Act?

    Declarations of incompatibility

  26. The Act does not disapply section 4, which “empowers the senior courts to make a declaration that a provision is incompatible with a Convention right”. [14] Therefore, there is no obstacle to a claimant seeking a declaration of incompatibility in respect of the Act. Such a declaration does not affect the validity or ongoing operation of the Act.[15] On my reading of the Act, there are no obstacles to a challenge to the Act on the basis that it is incompatible with the HRA 1998 for the purposes of seeking a declaration of incompatibility. As noted above, it is no secret that the Government considers the Act vulnerable to such challenges given the s.19(1)(b) statement.
  27. Undoubtedly the Act will, in the course of litigation and further commentary be subjected to further and more detailed analysis with a view to identifying ECHR rights that it breaches. Starting with the obvious, however, the Act’s main purpose – to negate any individualised consideration of the risk of refoulement to individuals from Rwanda – would appear to quite clearly contravene the duty imposed by Article 3 on contracting states, where they remove asylum seekers without considering the merits of their applications, to conduct a “thorough examination of the question whether the receiving third country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faces from the standpoint of Article 3 of the Convention”.[16] The Government might pray in aid the scope for consideration of individualised circumstances in section 4 of the Act. The force of those arguments might depend on how exactly section 4 is interpreted by the courts (see above). However, on its face, section 4 is inadequate as the duty under Article 3 requires consideration of Rwanda’s “asylum procedure” which is, at least as a starting point, an independent consideration entirely from the individual circumstances of the person facing removal and excluding consideration of the risk of onward refoulement would appear to be unlawful. On this basis, section 2 as a whole, and likely also section 4 which stands or falls with it, appear to be incompatible with Article 3 of the ECHR.
  28. What would be the point of obtaining a declaration of incompatibility, given its non-effect on the ongoing operation of the Act? A few potential reasons might be:

    1. A declaration of incompatibility would surely be a powerful factor supporting any application to the European Court of Human Rights for interim measures arising from the Act.
    2. While not technically effective to undermine the operation of the Act, the fact of an extant declaration would surely colour the approach of the domestic courts in considering challenges to the Act more broadly.
    3. A declaration of incompatibility triggers the power under section 10(2) of the HRA 1998 for a Minister to by order make amendments to the affected legislation “as he considers necessary to remove the incompatibility”. In the event that a change of government takes place in the next election, the next Government may welcome the ability to amend (or indeed eviscerate) the Act without taking up parliamentary time.

      Maybe the Human Rights Act 1998 applies across the board?
  29. It is to be noted that the Act defines safe country as“a country to which persons may be removed from the United Kingdom in compliance with all of the United Kingdom’s obligations under international law that are relevant to the treatment in that country of persons who are removed there”: section 1(5)(a). This might be thought a peculiar definition in that it says nothing about obligations under domestic law. In any event, that would exclude consideration of the ECHR. Wouldn’t it?
  30. The UK is a dualist state. The dualist system is based on the “distinct and independent character of the international and legal systems”;[17] in other words, the proposition that international law and domestic law operate in independent spheres. Thus, while Ministers can make and unmake treaties, those treaties are not part of UK law and give rise to no legal rights or obligations in domestic law; it is for Parliament to determine the extent to which international obligations are to be incorporated domestically.[18] It follows that, where the UK has entered into a treaty and Parliament has subsequently chosen to legislate to ‘incorporate’ that treaty – i.e. legislate domestic law which reflects the international obligations – there will or may be parallel obligations and rights arising on the international plane and the domestic plane.
  31. Such is the position with the ECHR. The UK is under obligations operating on the international law level pursuant to the ECHR itself. By the HRA 1998, Parliament made a decision to incorporate – i.e. copy into domestic law – some of the provisions of the ECHR in the form of the HRA 1998. That is quite clear on the face of the HRA 1998 because (i) it contains obligations and provisions that are not to be found anywhere in the ECHR itself, being those dealing with the domestic application of the substantive rights including, most relevantly, the obligation on public authorities not to act incompatibly with a Convention right contained in section 6(1);[19] (ii) the Convention rights are scheduled to the HRA 1998 itself; and (iii) not all of the rights under the ECHR are incorporated into the HRA 1998. As the Supreme Court has noted, “There is a clear difference between Convention rights which have been incorporated into the domestic laws of the UK by HRA 1998 and rights arising under the ECHR , which are not part of this country's law but obligations under international law…such parts of the ECHR as are scheduled to the HRA 1998 also represent domestic law”.[20] Thus, in jurisprudential terms, a separate set of rights and obligations arise under the domestic legislation of the HRA 1998. The fact that, in substance, one is dealing in both cases with ECHR rights ought not to confuse that basic point.
  32. So, on the face of it, the Rwanda Act is not concerned at all with whether or not removal is contrary to the HRA 1998. The Rwanda Act is only concerned with deeming Rwanda to be a safe country for the purposes of international law. The HRA 1998 is domestic law. If it is said that the Rwanda Act were intended to address the HRA 1998, the response would have to be that the Act’s error is in wrongly assuming that the question of whether or not removal is unlawful for the purposes of section 6(1) of the HRA 1998 depends on analysis of international law.
  33. What might be said in response to the counter-argument that such an interpretation of the Act would denude section 3 of the Act of any substance whatsoever? I.e. why would Parliament bother to disapply the HRA 1998 so carefully, if the Act were entirely unconcerned with potential unlawfulness under the HRA 1998? Well, looking more carefully at the way in which the HRA 1998 is disapplied:
    1. The disapplication is only for the purposes of applying the provisions of the Rwanda Act: section 3(1);
    2. Section 3 “does not apply in relation to the Act” – full stop. However, section 2 and sections 6 to 9 only do not apply in relation to decision-making relating to whether or not Rwanda is a safe country.
  34. Therefore, the statutory scheme of the Act, it could reasonably be argued, actually differentiates between a general disapplication – of section 3 – and disapplication only insofar as the question of whether Rwanda is a safe country is concerned – sections 2 and 6 to 9. The argument would be that Parliament has carefully applied a differential regime of disapplication. Section 3 of the HRA 1998 is effectively disapplied; and with that disapplication, removed is the scope for clever arguments to the effect that a Convention compliant interpretation of the Act requires it to be read consistently with international law proper. Also, the above interpretation would not deprive the deeming effect of the Act of substance entirely. It would operate in situations where a party sought to rely on international law obligations/rights to found some domestic remedy. The Act would shut out such arguments by operation of its deeming effect.
  35. That leaves the more modest, albeit hardly inconsequential, pseudo-absurdity of disapplications of sections 2 and 6 to 9 that only bite in relation to questions of international law. I am still considering where this argument might be taken; but, at the very least, it can be said that the courts will have to choose between that relatively modest (?) incongruity and the fact that Parliament has consciously chosen to limit the definition of safe country to matters of international law in circumstances where the dualist nature of the UK’s legal system is to be taken to be well-known and understood by Parliament.[21]

Common law rights

  1. As has been noted above, the definition of a safe country is with reference to the UK’s international law obligations. What of positive common law rights that might weigh against removal to Rwanda? All that is said about the common law is the disapplication in section 2(5)(c) which, as discussed above, is likely to be interpreted narrowly and, in my view, is unlikely to be found to exclude such positive common law rights. Therefore, whatever the position under the HRA 1998, it would appear that the Act presents no obstacles to arguments based on domestic law that removal to Rwanda would be unlawful. The safety of Rwanda in this respect is different to and distinct from the “safety” of Rwanda as defined in the Rwanda Act.

30 April 2024

Admas Habteslasie

Landmark Chambers

[1] R (AAA (Syria) and others) v Secretary of State [2023] UKSC 42.

[2] I.e. their forcible removal whereby they would be at risk of irreparable harm, including persecution and torture, ill-treatment or other serious rights violations.

[3] R v Home Secretary, ex parte Simms [2000] 2 AC 115 per Lord Hoffmann at 131.

[4] Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] A.C. 260 per Viscount Simons at 286.

[5] [2017] UKSC 51 at [65] and [98].

[6] One specific area of decision-making – for now. There is the risk, well-evidenced, of acts of constitutional boundary-realignment setting precedents.

[7] Or might the audience be other than the courts?

[8] This is how the Government of Rwanda described the operation of its monist system in its periodic report to the UN Committee on Economic, Social and Cultural Rights in 2020: “When a convention or treaty is ratified, it is applied directly without any integration process in domestic legislation. Once ratified, all treaties and conventions are automatically domesticated according to the Constitution of the Republic of Rwanda. This constitutional dispensation gives litigants the right to directly apply at national level, the international instruments duly ratified and applied by the other party.”: Fifth periodic report, E/C.12/RWA/5, §20.

[9] Also nb Article 29, which provides that extradition of foreigners “is authorised only if it is in accordance with the law or international agreements to which Rwanda is a party”.

[10] Jackson and Others v Her Majesty's Attorney General [2005] UKHL 56 per Lord Steyn at [102].

[11] AXA General Insurance Limited v Lord Advocate [2011] UKSC 46 per Lord Hope at [51].

[12] The statement made was under section 19(1)(b) rather than 19(1)(a) of the HRA 1998.

[13] Sections 6 to 9 are also disapplied, importantly, in relation to decisions made under section 4 of the Act; discussion of these provisions is beyond the scope of this article.

[14] Secretary of State for Business and Trade v Mercer [2024] UKSC 12 at [22]. A declaration of incompatibility is often described by the courts as a ‘measure of last resort’ – “but that is because a Convention- compliant interpretation under section 3 of the HRA is seen as the primary remedial measure” (ibid, [112]). Here, the Act removes any possibility of a section 3 interpretation of the Act. No doubt interesting questions may be asked as to why section 4 was not disapplied.

[15] See section 4(6) of the Human Rights Act.

[16] Per the European Court of Human Rights in Ilias v Hungary (2019) 71 EHRR 6. The Act disapplies section 2 of the Human Rights Act “where a court or tribunal is determining a question relating to whether the Republic of Rwanda is a safe country for a person to be removed” but (i) that does not seem to capture consideration of whether the Act itself is unlawful and (ii) the principle has been absorbed and applied in domestic law, most notably by the Supreme Court in AAA at [24], [44] and [63].

[17] Brownlie’s Principles of International Law, 9th Edition, p.45.

[18] See, respectively, R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 at [55]-[56], [167] and [244]; and .R v Asfaw [2008] UKHL 31 at [69].

[19] As the Supreme Court noted in AAA, it is unlawful under domestic law for the Home Secretary to remove asylum-seekers to countries where there are substantial grounds to believe that they would be at real risk of ill-treatment by reason of refoulement – under section 6 of the HRA 1998.

[20] Moohan and another v The Lord Advocate [2014] UKSC 67 at [29] and [104].

[21] Assuming the disapplication of the Human Rights Act 1998 is effective, are there any further arguments? Section 3(5) excludes section 6 of the HRA 1998 from “a decision taken on the basis of section 2(1)” of the Rwanda Act. Section 6(1) of the HRA 1998 provides that it is unlawful for public authorities, including the courts, to “act in a way which is incompatible with a Convention right”. This includes a failure to act. Section 6 of the HRA 1998 is not disapplied in relation to section 2(3) and (4), which dictate the matters that the Court is prohibited from considering in certain circumstances. If a public authority could not have acted differently because of a provision of primary legislation, section 6(1) does not apply. However, as noted above, the courts may interpret section 2(3) and (4) of the Rwanda Act as not precluding their discretion entirely. If they do, that has a further consequence, which is that a decision of a court to apply section 2(3) and (4) i.e. and refuse to consider whether Rwanda is a safe country becomes vulnerable to challenge as incompatible with a Convention right under section 6(1). Even if this argument were successful, however, it is difficult to see what practical utility it would have; the claimant would be able to claim the judicial act was unlawful, but it could not bear on the interpretation of the Rwanda Act is section 3 of the HRA is effectively excluded.

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