The Rwanda Bill: a Human Rights Crisis?

Introduction to the Rwanda Bill

 The UK Government recently introduced The Safety of Rwanda (Asylum and Immigration) Bill as “emergency legislation” to continue with its Rwanda immigration policy – following the impactful Supreme Court ruling that Rwanda was in fact not a safe third country. Even at surface level, it seems that this plan serves a political agenda, namely for the government to bypass the court’s findings. The main problems within this Bill stem from the Government’s attempt to superficially assure that Rwanda is indeed a safe third country (with no risk of refoulement) to send asylum seekers. Refoulement is the forcible return of refugees or asylum seekers to a country where they are likely to be subjected to persecution or torture. The Bill simultaneously disapplies and disregards domestic and international human rights obligations. Therefore, the risk of serious human rights violations remains – essentially due to a rushed and politically-driven piece of legislation.

 The Supreme Court Judgement

 The case of R (AAA and others) v Secretary of State for the Home Department [2023] raised the issue of whether the Rwanda policy was lawful. The main concern of the Law Lords was the fact that Rwanda could not be categorised as a safe third country as there was a high risk of refoulement. In Lord Reid’s leading judgement, the Supreme Court found that the Secretary of State’s policy was ‘unlawful’ and that there were “substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement in the event that they were removed to Rwanda.”[1] The Supreme Court concentrated on the status of Rwanda and its compliance with international human rights. Could Rwanda fully be trusted to not engage in refoulement? The answer was clearly no. The court emphasised that the central issue of the case was not on the ‘good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances… in light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement.’[2] An important piece of evidence used by the Court to reach this conclusion was Rwanda’s previous agreement with Israel in 2013. This agreement included Rwanda’s ‘explicit undertaking according to which the deportees will enjoy human rights and freedom and that the principle of non-refoulement shall be complied with’[3] – which was grossly breached by the Rwandan Government. The United Nations High Commissioner for Refugees (UNHCR) found that ‘asylum seekers who arrived in Rwanda under the arrangement were routinely moved clandestinely to Uganda… In three cases, refoulement to Eritrea had only been prevented by the UNHCR’s intervention.’[4] This brought into serious scrutiny Rwanda’s evident inability to follow international human rights as well as their explicit breach of agreement with another nation. Analysing the judgement in this way, provides an uncomplicated view that Rwanda is wholly unsuitable as a safe third country for asylum seekers. 

A Human Rights Issue and International Obligations

 Following the judgement, the UK Government agreed a new treaty with Rwanda (one that supposedly reasserts Rwanda’s obligations to comply with international human rights) and also proposed the Bill in discussion. Although the Bill states that Rwanda is indeed a safe third country and that decision-makers must treat it as such, ‘neither the Bill nor the treaty alter the reality that Rwanda is not a safe country.’[5] This is due to Rwanda’s practical unreliability when it comes to human rights standards and international obligations. A critical demonstration of this was the breach of its agreement with Israel. Therefore, even with a renewed treaty with Rwanda, there is plenty of concern and likelihood that Rwanda will not keep to its promises. What is particularly harrowing is that the Government is essentially overlooking the risk of breaches of human rights in order to push through Conservative policy plans: this is concerning due to the protection of human rights being intertwined with the UK’s status as a democratic country. Critically, the risk of refoulement is directly contrary to both domestic and international law. A key protection of the UN’s 1951 Refugee Convention is the right to not be subjected to ‘refoulement’; whilst the ECHR protects against refoulement through the protection to the right to life and the right to not be tortured/receive inhuman treatment. However, there is another way that this Bill threatens human rights in the UK: through its disapplication of certain provisions of the Human Rights Act 1998 (HRA). The Bill purports to disapply Section 3 so that the legislation does not have to be read in compatibility with Convention rights. But more controversially, the Bill attempts to disapply Section 6 of the HRA: the obligation on public authorities to act compatibly with human rights. This is something that has never been attempted before and therefore presents a significant incursion into the protection the Act provides. If these more audacious exemptions are being attempted, what is to say that the whole HRA won’t eventually be disapplied? Fundamentally, it leaves certain groups of individuals (refugees and asylum seekers) with restricted human rights: ‘the Bill undermines the universality of human rights.’[6] Even analysed holistically, it is abundantly clear that the Bill purports to significantly restrict and disregard human rights – the Home Secretary stated that under Section 19(1)(b) of the HRA 1998 he is ‘unable to say that in his view the provisions of the Bill are compatible with Convention rights.’[7] Thus, through its enactment, this legislation would completely contravene both the domestic law on human rights as well as the UK’s international obligations (under the UN, the ECHR, and so on).

Photo credit: Markus Spiske

Ousting Judicial Review

Judicial review is an important legal action as it allows the challenge to the lawfulness of decisions made by public authorities/those exercising public power. One of the clauses in the proposed Bill contains an ‘ouster clause’ which prohibits the court from hearing a legal challenge on the removal to Rwanda based on safety. This raises two issues. Firstly, this places individuals unlawfully removed to Rwanda in a dire situation with no remedy. Secondly, there is the question of how detrimental it could be to remove legal accountability of the government when it comes to topics such as this, that affect the rights and livelihoods of others. This also invokes the counter-majoritarian view: legislative and executive actions should be subject to review by the judiciary to scrutinise legislation where the majority marginalises the minority. Therefore, can this ouster clause be justified? If the government were so confident that Rwanda could practically keep to its obligations, ‘they would not be afraid of independent judicial oversight.’[8] Ultimately, it is clear the question of Rwanda’s safety would not accurately be determined by legislation ostensibly stating that it is safe, but by ‘allowing the courts to consider the new treaty and the latest developments on the ground.’[9]

 The Future?

 At present, the Bill is still being debated and scrutinised in the House of Lords where the government does not seem to have a majority. Peers have proposed several changes to the Bill, including allowing the courts to question the safety of Rwanda. However, once it is returned to the House of Commons, there is a high possibility that these changes will be overturned (seeing as the government has a majority in the latter). If the legislation is enacted, it will remain to be seen how the government and the courts decide to deal with the issues stated. The question of whether the renewed treaty with Rwanda would – or indeed could – be complied with will be a critical point of observation. The courts still have the ability of issuing a declaration of incompatibility (as per Section 4 of the HRA), however, the legal effect of this would be insignificant without Parliament’s cooperation in then reviewing the legislation. Thus, there will be inadequate remedies for those that are unlawfully subject to the policy. As Baroness Chakrabarti put it: “the Government’s attitude to checks, balances and the rule of law, now threatens… both the domestic rule of law… and the international rules-based order.”[10] The government must face at least some accountability – whether that will be legal or political accountability is not yet certain.

[1] R (AAA and others) v Secretary of State for the Home Department [2023] UKSC 42 [149]

[2] ibid [102]

[3] ibid [95]

[4] ibid [96]

[5] Public Law Project (RWA0001)

[6] The Equality and Human Rights Commission (RWA0022)

[7] Joint Committee on Human Rights, Chair’s Briefing Paper: Safety of Rwanda (Asylum & Immigration) Bill [8]

[8] Joint Committee on Human Rights, Uncorrected oral evidence: Safety in Rwanda (Asylum & Immigration) Bill (HC 435) [Q5]

[9] Joint Committee on Human Rights, Safety of Rwanda (Asylum & Immigration) Bill (2023-24, HL 63, HC 435) [58]

[10] HL Deb 12 February 2024, vol 836