The UK’s Safety of Rwanda Bill is a reminder that democracies are not immune from attacks on the rule of law

The UK government’s new bill, unveiled alongside a new treaty with Rwanda, is extraordinary – for all the wrong reasons.

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The immigration minister Robert Jenrick has resigned on the basis that the government’s new Safety of Rwanda (Asylum and Immigration) Bill does not go far enough to stop irregular migration to the UK – something he calls ‘a national emergency’.

Yet the short bill contains many problematic clauses with long-term significance and precedent-setting potential. 

The UK’s international law obligations

The bill indicates the government’s willingness to violate international law. It states (unnecessarily) that parliament is sovereign, and continues by requiring that a claim that Rwanda is not safe cannot be heard in our courts. 

The home secretary explicitly states on the face of the bill that he is unable to confirm it complies with the European Convention on Human Rights, and thus with the human rights standards it expects of other states.

The bill also directs UK courts to disapply aspects of domestic law and prevents judges from considering relevant international law that the UK has agreed to (clause 2(5)).

An Act of Parliament cannot alter obligations which have been agreed on the international plane

But an Act of Parliament cannot alter obligations which have been agreed on the international plane. The UK’s international law obligations, requiring it to avoid the sending back of anyone to face persecution, torture or ill treatment, remain in place.

These are agreements which the UK has entered into voluntarily. And traditionally, the UK has gone to great lengths to ensure its domestic law is compliant with its international law obligations.
 
Interestingly, while the bill makes clear that the UK itself is prepared to violate its own international obligations, the policy behind it is based on the assumption that Rwanda will comply with its own international obligations. 

Disabling the courts

The bill raises fundamental concerns relating to access to justice and the separation of powers, and invites a fight with the UK judiciary. 

The bill directs the UK courts and other decision makers to ‘conclusively treat the Republic of Rwanda as a safe country’– irrespective of the factual evidence before it and regardless of the situation on the ground in Rwanda, whether now or in the future (clause 2(1)).

As such it attempts to use the law to substitute the Supreme Court’s factual assessment that Rwanda is unsafe based on the information before it. 

The bill seeks to disable the courts in future from factually probing the evidence in the way the Supreme Court did on the question of Rwanda’s safety.

The Supreme Court decided in November that if people were sent to Rwanda there was a real risk of their ill-treatment by reason of their possible removal to countries where they would suffer persecution (refoulement).

That was because of evidence of Rwanda’s history of refoulement in the past and the weakness of its asylum and judicial system, including compelling evidence from the UN High Commission for Refugees.

The Court was clear that ‘significant changes’ needed to be made to Rwanda’s asylum procedures, stating ‘The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring’ (paragraph 104 of the judgment).

The new treaty that the UK and Rwanda have signed has the potential to improve the situation on the ground… but it will take significant time

The new treaty that the UK and Rwanda have signed has the potential to improve the situation on the ground, and puts Rwanda’s obligations on a legally binding footing, including the obligation not to deport relocated persons from Rwanda. 

But it will take significant time, money and energy to implement it and set up the international infrastructure, cooperation, staff recruitment and monitoring envisaged in the treaty and to meet the Supreme Court’s concerns in the key part of its judgment at paragraph 105.

It is hard to see how the structural changes and capacity building needed to eliminate the risk of refoulement identified by the court could happen any time soon – and certainly not for flights in the spring.

The assessment of whether the treatment of asylum seekers can at that time meet the international standards that the UK has freely signed up to should ultimately be for the courts. 

The role of the European Court of Human Rights

The bill invites an unnecessary fight with the European Court of Human Rights.

The bill (broadly) eliminates access to justice before the domestic courts and thus leaves claimants with no option but to go directly to the Strasbourg court. This relates to any claims that Rwanda may remove someone to a third country in breach of its international law obligations, or that it will not give a fair and proper consideration of an asylum claim.

This is likely to force a heated debate on the role of the Strasbourg court. Some might also argue that this is why such an external judicial check was envisaged in the Good Friday Agreement to ensure peace in Northern Ireland. 

Article 2nd half

The bill empowers ministers to ignore so-called rule 39 interim measures from the European Court of Human Rights in Strasbourg (as did the Illegal Migration Act before it, which aimed to ‘prevent and deter unlawful migration’).

The Strasbourg court granted such a measure in June 2022 on an exceptional and temporary basis owing to the imminent risk of irreparable harm to the applicant.

This was to allow the case to be considered fully by the UK’s own courts before the applicant could be removed to Kigali for their claims to be heard there under Rwandan law.

For any state to seek to disobey an order given by an international court as part of an international mechanism it has voluntary agreed to is a serious matter

For any state to seek to disobey an order given by an international court as part of an international mechanism it has voluntary agreed to is a serious matter.

Crossing the Rubicon

There are no quick fixes to the huge challenge of irregular migration. But the answers lie outside this bill, starting with speeding up the processing of existing claims and multilateral cooperation. 

At a Chatham House event last week, Professor Robert Spano, former President of the European Court of Human Rights, said proposed legislation such as this puts at risk the UK’s reputation as ‘one of the leading lights in the world in the international legal order’.

He continued, ‘There are so many countries that do not have that experience and are waiting for any possible tool to be able to distance themselves from this legal order, that if this country [in this] Rubicon moment takes that plunge, it’s really going to be the unravelling of the system that we hold so dear.’

Much damage has already been done to the UK’s hitherto strong leadership in promoting the rule of law. This bill now requires deep scrutiny from both chambers of parliament, and the wider world. We should expect further challenges in the courts.