Rwanda Redux

In the end,​ the government lost its appeal to the Supreme Court in the Rwanda case hands down. In a unanimous ruling on 15 November, the court held that asylum seekers transferred to Rwanda faced a real risk of being wrongly returned to their countries of origin. The court could have said simply that there was no legal error in the Court of Appeal’s assessment of the evidence. But it chose to go further, saying that it agreed with the lower court’s conclusion that Rwanda is not a safe place for asylum seekers transferred from the United Kingdom.

The court devoted thirty paragraphs to what it called a brief summary of the large amount of evidence demonstrating systemic weaknesses in Rwanda’s asylum-processing system and the country’s ‘at best, inadequate understanding’ of its obligations under the Refugee Convention. The evidence included the fact that between 2020 and 2022 Rwanda did not accept a single asylum claim from nationals of Yemen, Afghanistan or Syria. By contrast, the UK accepted 40 per cent of asylum claims by Yemenis, 74 per cent by Afghans and 98 per cent by Syrians. Other evidence showed that asylum seekers from a country with close relations with Rwanda were denied access to the asylum system and required to leave. There was also alarming evidence about an asylum processing agreement between Rwanda and Israel, in operation between 2014 and 2018, under which asylum seekers sent to Rwanda were ‘routinely moved clandestinely to Uganda’. The good faith of the Rwandan government in promising to process UK asylum seekers properly was not doubted, but the systems and officials that would be responsible for implementing the agreement were found seriously deficient.

The ruling confirmed that transferring asylum seekers to Rwanda is contrary to Article 3 of the European Convention on Human Rights (ECHR), which precludes states from returning individuals to their home country if this would expose them to a real risk of torture, inhuman or degrading treatment or punishment. This applies whether the individual is returned directly or, as in the case of Rwanda, indirectly via another country. Since ministers are forbidden from acting incompatibly with convention rights by the Human Rights Act 1998, the Supreme Court ruled that the policy is unlawful.

Following a practice reserved for its most sensitive rulings, the Supreme Court did not provide advance copies of the judgment to the parties. Although the government had only a few hours to consider the ruling, Rishi Sunak announced at Prime Minister’s Questions that a treaty would be concluded with Rwanda, in order to shore up the agreement between the two governments. Later that afternoon, he said that he would not allow domestic or international legal frameworks to frustrate the policy, that emergency legislation would be introduced to ‘allow Parliament to confirm that with our new treaty Rwanda is safe’, and that he would if necessary prevent the ECHR from intervening in the matter because, he said, it shouldn’t be stopping deportations to countries ‘deemed to be safe in parliamentary statute and binding international law’.

The stage is now set for the second act of the Rwanda saga to play out in Parliament, which so far has had no more than a walk-on part. This is because the government chose not to implement the Rwanda policy through legislation, despite being afforded the opportunity to do so by the passage of the Illegal Migration Act 2023. The government also sidelined Parliament by deciding that the agreement would take the form of a non-binding memorandum of understanding. If the government had agreed a treaty with Rwanda, each House of Parliament would have been able to consider it before it was ratified. The House of Lords International Agreements Committee criticised the use of a memorandum of understanding, on the basis that it was ‘unacceptable’ for the government to use prerogative powers to enter into agreements that had serious human rights implications without the scrutiny of Parliament. The Labour chair of the committee, Baroness Hayter of Kentish Town, managed to secure a debate on the issue in February, but only because she won the parliamentary time in the ballot.

Opportunities for parliamentary scrutiny of the Rwanda policy have therefore been limited. The introduction of emergency legislation and the ratification of the treaty with Rwanda should change that, but the signs are that Parliament’s role will again be restricted: in the past, emergency legislation has passed through both Houses in a few days. The legislation itself seems likely to raise at least three major constitutional issues. The first arises because the prime minister has said that the legislation will ‘deem’ Rwanda to be safe. In principle, this does not give rise to any constitutional problems, although it may insufficiently protect human rights. European countries were deemed safe by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The inclusion of Greece was considered by the Appellate Committee of the House of Lords – the forerunner of the Supreme Court – in the case of Secretary of State for the Home Department v. Nasseri in 2009. Nasseri was an Afghan national who was being removed to Greece, where he had already had an asylum claim rejected. He claimed that he would be returned from there to Afghanistan, contrary to Article 3 of the ECHR. The law lords held that his transfer to Greece was lawful because Greece was deemed to be safe. Lord Hoffmann explained that if evidence showed that Greece was not a safe third country then the statute would be contrary to Article 3 and the court could issue a ‘declaration of incompatibility’ under Section 4 of the Human Rights Act. Such a declaration would not invalidate the legislation but would draw Parliament’s attention to the fact that its statute was in conflict with international law and invite it to amend the law. Legislation has so far always been amended to respect such declarations of incompatibility.

It is not constitutionally improper for Parliament to take a risk that its legislation might at some point become non-compliant with the ECHR. As Lord Hoffmann stated in Nasseri, ‘Parliament was entitled to create a system of adjudication under which [the then home secretary, Jacqui Smith] took her chance that this might happen.’ In fact, in 2022 Parliament decided, quite sensibly, that it did not want to take this chance and the 2004 Act was amended: it now only establishes a presumption that listed countries are safe, which can be rebutted by evidence. This is much more satisfactory, but it’s still the case that a deeming provision can be used and has been found effective in the courts.

There is, however, a critical difference between the cases of Greece and Rwanda. The Supreme Court has decided that transfers to Rwanda breach Article 3. The court was charged with determining whether the government’s asylum policy was compatible with the ECHR and provided an unequivocal answer: no. The issue was one of fact and involved detailed and lengthy consideration of evidence. This is an exercise that falls squarely within the institutional responsibility and capacity of the courts and that Parliament cannot hope to replicate. The deficiencies identified by the Supreme Court are not of the sort that can be fixed by a treaty. The Supreme Court explained that compliance with Article 3 requires a ‘change of attitudes’ on the part of Rwandan officials – not just those who make asylum decisions – as well as the introduction of ‘effective training and monitoring’. A formal treaty with the Rwandan government cannot achieve this. As the Supreme Court made clear, the ‘central issue’ is not the good faith of the Rwandan government, ‘but its practical ability to fulfil its assurances’. The court was satisfied that Rwanda is unsafe and that this ‘will not change, at least in the short term’.

This finding should ring in the ears of MPs. If Parliament deems Rwanda to be a safe third country, in the face of the Supreme Court judgment, it is rejecting and contradicting the ruling of our highest court on the facts, and thus infringing the constitutional principle of the separation of powers. As a matter of law, Parliament can pass any statute it likes and the courts must obey it, but this is only half the story. The UK constitution primarily functions through the operation of conventions, which regulate such matters as whom the king chooses to be prime minister and the accountability of ministers to Parliament. The relationship between Parliament and the courts is similarly governed by conventional principles of comity and restraint. In R (Wheeler) v. Office of the Prime Minister in 2008, the Speaker of the House of Commons, through his counsel, asked the court to observe the ‘principle of the separation of powers’. On the one hand, he said, this requires courts to abstain from interfering with proceedings in Parliament. On the other, it imposes a duty on Parliament to ‘respect’ the ‘proceedings and decisions of the courts’. This constitutional principle, or convention, of restraint is not legally enforceable in its application to Parliament but is still a principle of the highest importance.

The second constitutional issue relates to the UK’s international obligations. Enacting legislation that would permit asylum seekers’ being sent to Rwanda in the short term would place the UK in breach of international law. It is not only Article 3 of the ECHR that would be breached. The obligation of ‘non-refoulement’ is included in other international treaties, such as the UN Convention against Torture and the Refugee Convention. As the Supreme Court noted in its judgment, it had been thought by many, including the government, to form part of customary international law. That means it is binding on all states whatever their treaty commitments.

It is not unlawful under domestic law for Parliament to place the UK in breach of international law. But the fact that no domestic court can stop Parliament breaching international law doesn’t mean that it isn’t acting unlawfully if it does so. It would be acting contrary to the law of nations. The international rules-based system is a fundamental part of the UK’s national security and foreign policy. Commenting on the Rwanda judgment, David Gauke, the former secretary of state for justice, quoted Margaret Thatcher’s claim, after the Falklands War, that Britain’s role in the world was ‘upholding international law and teaching the nations of the world how to live’.

There is an inconsistency between the UK’s policy on Rwanda and its commitment to international law. In the same column of Hansard where the prime minister is recorded telling the House of Commons that he is prepared to ensure the UK’s international obligations do not get in the way of the Rwanda policy, he also reminds the Commons that it is ‘important’ that Israeli action in Gaza ‘complies with international law’. Parliament cannot expect other countries to respect international law if it does not do so itself.

The third constitutional issue relates to the role of the courts and the suggestion that Parliament should prevent them from blocking removals to Rwanda. As things stand, the domestic courts would prevent by injunction any effort by the government to send asylum seekers to Rwanda. If legislation is enacted that deems it as a safe third country, domestic courts will have to obey that – just as they did in the case of Greece in Nasseri. But they could issue a declaration of incompatibility under the Human Rights Act if the legislation breached Article 3. That would tell Parliament that the legislation is in breach of the ECHR and invite it to change the law. It seems possible that the government might try to get Parliament to cut out the role of the domestic courts by both deeming Rwanda safe and preventing the courts from making a declaration of incompatibility. This would mean that the courts would not be able to consider the treaty with Rwanda and whether it made a significant difference; it would also suggest that the government knows the answer the courts would give. One difficulty here for the government is that the ECHR requires signatory states to empower their domestic courts to grant effective remedies for breaches of protected rights. The government relies on courts to fulfil this obligation, including by its power to declare legislation incompatible with the ECHR, and taking away their jurisdiction would itself place the UK in breach of international law.

The prime minister’s suggestion that the government will seek to block the involvement of the Strasbourg Court raises similar concerns. Strasbourg prevented transfers to Rwanda as an interim measure, a decision vindicated by the Supreme Court ruling. It would presumably do the same again if the government tried to restart transfers. Such rulings are not enforceable by domestic courts, but they have been accepted by the current government as a necessary part of the convention system. Parliament cannot require the government to ignore such rulings without eroding its commitment to the ECHR.

It seems unlikely that the government would actually try to push through legislation stating that any final ruling the Strasbourg Court might make about a revamped Rwanda policy breaching Article 3 should be ignored. Such legislation would be an explicit violation of the UK’s international obligations under the ECHR, which require states to follow the rulings of the Strasbourg Court, and would be hard to square with the UK’s continuing membership of the ECHR. The government knows, however, that applications to the Strasbourg Court usually progress slowly and that a final ruling would not come in time to prevent transfers from starting. Its strategy may be to begin flights in the knowledge that they are likely to be ruled unlawful in Strasbourg at some future point. This would be to play fast and loose with the UK’s international obligations and with the safety of asylum seekers. A clear majority of asylum seekers, including those arriving by small boats, are found to be genuine refugees by this country and, as the Supreme Court found, starting transfers will result in many genuine refugees facing the real prospect of return to the country of their persecution.

Since neither the Rwanda policy or the small boats issue was mentioned in the Conservative Party’s 2019 election manifesto, the Lords will not be constrained from voting any legislation down even if it is passed in the Commons. This would, though, require the support of many of the government’s own peers. We must wait to assess the content of the bill when it appears. But there is trouble ahead.