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)).
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, 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.
