The timeline of the UK and Rwanda Migration and Economic Development Partnership (hereinafter: Rwanda Asylum Plan)[1] has started in April 2022, when it was first proposed by former British prime minister Boris Johnson. In December 2023, the two governments subsequently signed the UK-Rwanda Asylum Partnership Treaty[2], which guarantees that anyone sent to Rwanda would not risk being returned to their home country, and at the same time, 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 into law by Parliament on 22 April 2024. It is noteworthy as an antecedent that in November 2023, the UK Supreme Court ruled[4] unanimously that the Rwanda Asylum Plan was unlawful since genuine refugees would be at risk of being returned to their home countries, where they could face ill-treatment. That is, after the UK Supreme Court ruled that the scheme was unlawful, the government introduced the bill to make clear in UK law that Rwanda is a safe country. The UK government has high hopes that the Rwanda Asylum Plan will deter migrants from arriving in the UK on small boats across the English Channel that is a top priority for incumbent prime minister, Rishi Sunak. According to recent data, as of 21 May 2024, almost 10 000 people had crossed the English Channel that is above the numbers for the same period in the previous four years.[5]
In terms of the Rwanda Asylum Plan, people whom the UK authorities identify as ‘illegal’ migrants or asylum seekers and who come from a safe country, can be relocated to Rwanda for processing their claims, asylum and resettlement. That is, asylum-seekers in the UK will be transferred to Rwanda before their claims for asylum are heard, so it will then be the responsibility of the national Rwandan asylum system to consider their need for international protection. Even those who are successful in claiming refugee or humanitarian status will not be permitted to return to the UK and will remain in Rwanda. Otherwise, they can apply to settle in Rwanda on other grounds or they can seek asylum in another ‘safe third country’. The Safety of Rwanda Act orders 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 (hereinafter: ECHR)[7] into domestic law. The Safety of Rwanda Act also compels 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 prevent 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 judgment of Parliament that the Republic of Rwanda is a safe country”. That is to say, the Safety of Rwanda Act excludes judicial deliberation from the assessment of individual cases by declaring Rwanda ipso jure safe.
The Rwanda Asylum Plan has given rise 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 is not compatible with international refugee law in multiple ways, as it will shift responsibility for making asylum decisions and protecting refugees, it will propose an asylum model that undermines global solidarity, and it will not contribute to burden- and responsibility-sharing. The UN Refugee Agency is also of the view that asylum seekers must be individually assessed as to the lawfulness and appropriateness of their transfer, they must be subject to procedural safeguards prior to transfer, and asylum seekers subject to transfer under a bilateral arrangement must be protected against refoulement and have access to fair and efficient procedures for the determination of refugee status and/or other forms of international protection. In addition to that the UNHCR notes that while 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 is still ‘nascent’, and externalizing asylum obligations poses serious risks for the safety of refugees.
The ECtHR has also dealt with the Rwanda Asylum Plan: the first flight leaving for Rwanda was scheduled for June 2022 but was cancelled shortly before take-off due to facing legal challenges, 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 respecting 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 might 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, but there has been no judgment yet.
As far as the obligations of the UK under international law are concerned, the UN Refugee Convention and the ECHR should be highlighted. These conventions have qualified the principle of non-refoulement to a centrepiece 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 provides that “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. Indeed, the prohibition of expulsion or return means that where a state is not prepared to grant asylum for a person who is in need for international protection, it must adopt a fair procedure and offer efficient guarantees 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 seems quite uncontroversial at a first sight, problematic grey zones might appear. For instance, Art. 33(1) prohibits a return to the border of the state from which the asylum seeker fleeing, but not to any other state, which has led to the emergence of the ‘first country of arrival’ and ‘safe third country’ rules. That is, State Parties to the UN Refugee Convention shall comply with Art. 33, at the same time, 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, there is another side of the principle of non-refoulement stemming from human rights law. As for 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 European Court of Human Rights (hereinafter: ECtHR) seems rather settled from this angle. 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, since he would there be faced with the possibility of being sentenced to death and experiencing the ‘death row phenomenon’, i.e., waiting for his capital punishment for an indefinite period of time. In the same vein, in Chahal v. the UK[13] the ECtHR prohibited the deportation of a Sikh separatist to India because of the risk of violations of Art. 3, in the form of torture or inhuman or degrading treatment or punishment. In Saadi v. Italy[14] the ECtHR reiterated the absolute nature of non-refoulement when it ruled that it would be incorrect to require a higher standard of proof where the applicant was considered to represent a serious danger to the community or even a threat to national security. In this case, the ECtHR also 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 and had disregarded country reports and other evidence submitted by the applicants and imposed an unfair and excessive burden of proof to the applicants. Based on these relevant cases, the most significant conclusions regarding non-refoulement are as follows: (i) under the ECHR, the principle of non-refoulement creates an absolute prohibition that means 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 when it comes to asylum claims, and individual assessment is inevitable to avoid chain-refoulement.
As for concluding remarks, we should emphasize that deterring migrants from arriving in any country across the high seas while endangering their lives is of great importance, however, due Rwanda’s poor human rights record and initial asylum system, the Rwanda Asylum Plan seems to be rather problematic and the UNHCR’s concerns can neither be simply put aside. Nevertheless, regarding the principle of non-refoulement, it is not determined under the respecting treaty framework, neither the UN Refugee Convention nor the ECHR, who is entitled to decide upon whether a country is safe or not. The UK recognised this lacuna and tried to conclude other additional measures to avoid chain-refoulement as well as sending asylum seekers to their home countries. But the question remains to be unanswered: are these measures genuine and sufficient to guarantee basic human rights for asylum seekers deriving from the principle of non-refoulement?
References
[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, judgment, Strasbourg, 07 July 1989.
[13] Case of Chahal v. the United Kingdom (application no. 22414/93), ECtHR GC, judgment, Strasbourg, 15 November 1996.
[14] Saadi v. Italy (application no.37201/06), ECtHR GC, judgment, Strasbourg, 28 February 2008.
[15] Case of Ilias and Ahmed v. Hungary (application no. 47287/15), ECtHR GC, judgment, Strasbourg, 21 November 2019.
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