The timeline of the UK and Rwanda Migration and Economic Development Partnership (hereinafter: Rwanda Asylum Plan)[1] began in April 2022, when it was first proposed by former British prime minister Boris Johnson. Subsequently, in December 2023, the two governments signed the UK-Rwanda Asylum Partnership Treaty,[2] which guarantees that anyone sent to Rwanda would not risk being returned to their home country. Simultaneously, the UK government published the Safety of Rwanda (Asylum and Immigration) Bill. Eventually, the Safety of Rwanda (Asylum and Immigration) Act 2024 (hereinafter: Safety of Rwanda Act[3] was passed by Parliament on 22 April 2024. It is noteworthy that in November 2023, the UK Supreme Court ruled[4] unanimously that the Rwanda Asylum Plan was unlawful since genuine refugees would have been at risk of being returned to their home countries, where they could have faced ill-treatment. Subsequent to the UK Supreme Court’s ruling that the scheme was unlawful, the former government introduced the bill to clarify in UK law that Rwanda is a safe country. The former UK government expected that the Rwanda Asylum Plan would have deterred migrants from arriving in the UK on small boats across the English Channel, which was a top priority for the previous prime minister, Rishi Sunak. According to recent data from 21 May 2024, nearly 10,000 people had crossed the English Channel, surpassing the numbers for the same period in the previous four years.[5]
Under the Rwanda Asylum Plan, people identified by UK authorities as ‘illegal’ migrants or asylum seekers, and those who come from a safe country, could have been relocated to Rwanda for processing their claims, asylum, and resettlement. Thus, asylum-seekers in the UK would have been transferred to Rwanda before their claims for asylum would have been heard. Therefore, it would have been the responsibility of the Rwandan asylum system to consider their need for international protection. Those who had been successful in claiming refugee or humanitarian status would have not been permitted to return to the UK and would have remained in Rwanda. Alternatively, they could have applied to settle in Rwanda on other grounds or they can seek asylum in another ‘safe third country’. The Safety of Rwanda Act ordered the UK courts to ignore essential sections of the Human Rights Act 1998,[6] which sets out the fundamental rights and freedoms that everyone in the UK is entitled to and incorporates the rights set out in the 1950 European Convention on Human Rights (ECHR)[7] into domestic law. Further, the Safety of Rwanda Act compelled the courts to disregard other UK laws or even international treaties, such as the 1951 UN Convention Relating to the Status of Refugees (hereinafter: UN Refugee Convention),[8] which would have prevented deportations to Rwanda.[9] Moreover, Art. 2(b) of the Safety of Rwanda Act provides that ‘To advance that purpose this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country’. Thus, the Safety of Rwanda Act excluded judicial deliberation from the assessment of individual cases by declaring Rwanda ipso jure safe.
The Rwanda Asylum Plan had led to harsh criticism and disapproval not only at a domestic, but also at an international level. According to the UNHCR,[10] the Rwanda Asylum Plan was incompatible with international refugee law in multiple ways, as it would have shifted responsibility for making asylum decisions and protecting refugees, propose an asylum model that would have undermined global solidarity, and would have not contributed to burden- and responsibility-sharing. The UN Refugee Agency also noted that asylum seekers should have been assessed individually regarding the lawfulness and appropriateness of their transfer, they should have been subject to procedural safeguards prior to transfer, and asylum seekers subject to transfer under a bilateral arrangement should have been protected against refoulement and should have had access to fair and efficient procedures for determining refugee status and/or other forms of international protection. In addition to that the UNHCR noted that although Rwanda has generously provided safe haven to refugees for decades and has made efforts to build the capacity of its asylum system, its national asylum system remains insufficient, and externalising asylum obligations poses serious risks for the safety of refugees.
Furthermore, the European Court of Human Rights (ECtHR) has dealt with the Rwanda Asylum Plan: the first flight leaving for Rwanda was scheduled for June 2022. However, owing to legal challenges it was cancelled shortly before take-off, as a last-minute interim measure granted in N.S.K. v. the UK[11] that led to the plan being halted until the conclusion of the legal action in the UK. In the respective case, the applicant, an Iraqi national, left his homeland in April 2022, travelled to Turkey and then across Europe before crossing the English Channel by boat. Alleging that he was in danger in Iraq, he claimed asylum upon arrival in the UK in May 2022. On 24 May 2022 the applicant was served with a ‘Notice of Intent’ indicating that the authorities were considering deeming his asylum claim in the UK inadmissible and relocating him to Rwanda. On 27 May 2022 a medical doctor in the Immigration Removal Centre issued a report indicating that the applicant may have been a victim of torture. However, on 6 June 2022, he was notified that his asylum claim had been deemed inadmissible. Finally, he was served with removal directions to Rwanda for 14 June 2022, when he submitted his application to the ECtHR. The case has been communicated to the UK government; however, no judgement has been delivered yet.
Regarding obligations of the UK under international law, the UN Refugee Convention and the ECHR should be highlighted. These conventions have qualified the principle of non-refoulement as the primary feature of international human rights law and international refugee law, and the UK is a State Party to them.
Art. 33(1) of the UN Refugee Convention states,
No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Obligations deriving from non-refoulement serve as the entry point for all subsequent rights that may be claimed under the UN Refugee Convention. However, it does not create a right of the individual to be granted asylum in a particular state. The prohibition of expulsion or return implies that where a state is not prepared to grant asylum to a person requiring international protection, it must adopt a fair procedure and offer adequate assurance that the person in need will not be removed or expelled to a country where their life, dignity or freedom would be endangered based on race, religion, nationality, membership of a particular social group or political opinion. Although non-refoulement may appear uncontroversial at first glance, it may lead to problematic grey zones. For instance, Art. 33(1) prohibits a return to the border of the state which the asylum seeker fled, however, it does not prohibit return to any other state, which has led to the ‘first country of arrival’ and ‘safe third country’ rules. Thus, State Parties to the UN Refugee Convention shall comply with Art. 33, however, simultaneously, they remain entitled to introduce laws related to immigration control or visa requirements, that is, reason for the emergence of ‘first country of arrival’ and ‘safe third country’ policies such as the Rwanda Asylum Plan.
However, another aspect of the principle of non-refoulement stems from human rights law. Regarding Art. 3 of the ECHR on the prohibition of torture, the ECtHR has developed, under the scope of inherent obligations, an extended human rights approach to non-refoulement, which, unlike non-refoulement under the UN Refugee Convention, is an absolute right with no exceptions. The case law of the ECtHR appears rather settled from this perspective. In Soering v. the UK[12] the ECtHR held that the UK would act in violation of Art. 3 of the ECHR if it extradited the applicant to the US, as there he would face the possibility of being sentenced to death and experiencing the ‘death row phenomenon’, that is, waiting for his capital punishment for an indefinite period of time. Similarly, in Chahal v. the UK[13] the ECtHR ruled against the deportation of a Sikh separatist to India owing to the risk of violations of Art. 3, in the form of torture or inhuman treatment. In Saadi v. Italy[14] the ECtHR reiterated the absolute nature of non-refoulement, stating that it would be incorrect to require a higher standard of proof where the applicant was considered a serious danger to society or national security. In this case, the ECtHR rejected the UK’s intervening claim regarding the possibility of refoulement when the applicant causes a serious security risk in the expelling or returning state, even if there is a possibility of ill-treatment in his or her home country. Additionally, in Ilias and Ahmed v. Hungary[15] the ECtHR held that the Hungarian authorities had relied on a schematic reference to the Hungarian government’s list of safe third countries, ignoring country reports and other evidence submitted by the applicants, imposing an unfair and excessive burden of proof on the applicants. Based on these cases, the most significant conclusions regarding non-refoulement are as follows: (i) under the ECHR, the principle of non-refoulement creates an absolute prohibition implying that even convicted criminals or terrorist suspects are no exceptions; (ii) even if there exists a higher security risk of danger caused by the applicant, deriving from the absolute nature of non-refoulement, it would be incorrect to require a higher standard of proof regarding the possibility of ill-treatment; and (iii) no schematic references are acceptable with respect to asylum claims, and individual assessment is inevitable to avoid chain-refoulement.
To conclude, we should emphasise that deterring migrants from arriving in any country across the high seas while endangering their lives is significant. However, owing to Rwanda’s poor human rights record and initial asylum system, the Rwanda Asylum Plan appeared rather problematic and the UNHCR’s concerns could have not been ignored. Nevertheless, regarding the principle of non-refoulement, it is not determined under the respecting treaty framework, neither the UN Refugee Convention nor the ECHR, as to who is entitled to decide upon whether a country is safe. The former UK government recognised this lacuna and attempted to conclude other additional measures to avoid chain-refoulement as well as sending asylum seekers to their home countries. However, the question remains unanswered: Are these measures genuine and sufficient to guarantee basic human rights for asylum seekers deriving from the principle of non-refoulement? One cannot forget: When pursuing migration policy goals, we can never put aside human rights safeguards even if we are in an urgent need to find effective solutions for migration problems demanding innocent lives and measures from the countries of arrival.
[1] Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Arrangement [Online]. Available at: https://www.gov.uk/government/publications/memorandum-of-understanding-mou-between-the-uk-and-rwanda/memorandum-of-understanding-between-the-government-of-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-government-of-the-republic-of-r (Accessed: 24 June 2024)
[2] Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership to Strengthen Shared International Commitments on the Protection of Refugees and Migrants [Online]. Available at: https://assets.publishing.service.gov.uk/media/656f51d30f12ef07a53e0295/UK-Rwanda_MEDP_-_English_-_Formatted__5_Dec_23__-_UK_VERSION.pdf (Accessed: 24 June 2024)
[3] Safety of Rwanda (Asylum and Immigration) Act 2024, UK Public General Acts, 2024 c. 8 [Online]. Available at: https://www.legislation.gov.uk/ukpga/2024/8 (Accessed: 24 June 2024)
[4] R (AAA and others) v Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023.
[5] BBC, What is the UK's plan to send asylum seekers to Rwanda? 13 June 2024 [Online]. Available at: https://www.bbc.com/news/explainers-61782866 (Accessed: 24 June 2024)
[6] Human Rights Act 1998, UK Public General Acts, 1998 c. 42 [Online]. Available at: https://www.legislation.gov.uk/ukpga/1998/42/contents (Accessed: 24 June 2024)
[7] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, United Nations, Treaty Series, vol. 213, p. 221.
[8] Convention relating to the Status of Refugees, Geneva, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[9] House of Commons Library, The UK-Rwanda Migration and Economic Development Partnership, Research Briefing [Online]. Available at: https://researchbriefings.files.parliament.uk/documents/CBP-9568/CBP-9568.pdf (Accessed: 24 June 2024)
[10] UNHCR UK, UK-Rwanda Asylum Partnership [Online]. Available at: https://www.unhcr.org/uk/what-we-do/uk-asylum-policy-and-illegal-migration-act/uk-rwanda-asylum-partnership (Accessed: 5 July 2024)
[11] Case of N.S.K. v. the United Kingdom (application no. 28774/22), ECtHR, communicated case.
[12] Case of Soering v. the United Kingdom (application no. 14038/88), ECtHR, judgement, Strasbourg, 07 July 1989.
[13] Case of Chahal v. the United Kingdom (application no. 22414/93), ECtHR GC, judgement, Strasbourg, 15 November 1996.
[14] Saadi v. Italy (application no.37201/06), ECtHR GC, judgement, Strasbourg, 28 February 2008.
[15] Case of Ilias and Ahmed v. Hungary (application no. 47287/15), ECtHR GC, judgement, Strasbourg, 21 November 2019.
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