Introduction
This blog examines the Rwanda saga and the constitutional dilemma created by the policy and passing of the Safety of Rwanda (Asylum and Immigration) Act 2024 (“the Rwanda Act”), together with its human rights implications. Once again, the application of the European Convention on Human Rights (“ECHR”) has enraged the UK Government and increased its desire to depart from the jurisprudence of the European Court of Human Rights (“ECtHR”). This blog considers whether the controversial £600 million Rwanda affair calls for reform of the Human Rights Act 1998 (“HRA”) alongside withdrawal from the ECHR, or indeed the repeal of the new Act and the policy behind it.
What is the Rwanda Affair?
In 2022, the UK and Rwanda settled a Migration and Economic Development Partnership (MEDP) (“the Policy”) for consideration of £240 million payable in tranches to remove asylum seekers illegally entering the UK to Rwanda. Moreover, an individual’s asylum claim is automatically inadmissible if they have illegally entered the UK once s.2 of the Illegal Migration Act2023 comes into force. Subsequently, as part of the “stop the boats” policy, the UK Government announced that illegal migrants entering the UK to seek asylum (currently c50, 000) would be removed to Rwanda, regardless of any breach of their Convention rights. The move attracted significant public condemnation, which was challenged before the ECtHR in the case of NSK v United Kingdom (Application no. 28774/22) where an Iraqi national was granted an interim measure to stop his removal to Rwanda, and thus halting the first flights to Rwanda. This aggravated the UK Government’s inclination to leave the Council of Europe.
The UK-Rwanda Treaty (“the Treaty”) and the Rwanda Actwere then designed to counter the UK Supreme Court’s (“UKSC”) decision in November 2023 in R (on the application of AAA (Syria)) v Secretary of the State for the Home Department [2023] UKSC 42, which held that Rwanda was an unsafe country for the purposes of Article 3 ECHR (prohibition from torture and inhuman and degrading treatment) and the UK’s other international obligations (such as the Refugee Convention). In arriving at its decision, the UKSC considered the evidence provided by the United Nations High Commissioner for Refugees (“UNHCR”), which adduced Rwanda’s practical deficiencies, such as its practice of refoulment in the context of its mistreatment with Israelis, despite similar arrangements made with Israel in good faith to satisfy the assurances made in the MEDP and its dismissive attitude towards asylum seekers (para 104 of the judgment). The evidence also suggested that Rwanda’s practical operation in its asylum procedures required significant changes for Rwanda to demonstrate its good faith towards asylum seekers. Considering that evidence, the UKSC held that if sent to Rwanda asylum seekers were highly likely to face a real risk of ill-treatment by reason of refoulment, contrary to Article 3 ECHR, and Article 33(1) of the Refugee Convention which the UK is a party to. Although the UK did not plan to remove refugees directly to their country of origin where they faced persecution, they might be indirectly in breach of Article 33(1) of the Refugee Convention should the refugees indirectly return to the home country where they were highly likely to face inhuman and degrading treatment via a third country (such as Rwanda).
It is argued that the new treaty that bound Rwanda and the UK did not clearly address flaws identified in the UKSC’s ruling and thus did not align with Article 3 of the ECHR. The UK-Rwanda Treaty fails practically to make Rwanda a safe country, nor does it offer asylum seekers protection from relocation to their country of origin where they are highly likely to face persecution (contrary to Article 3 ECHR). It is pertinent to note that Article 3 of the ECHR is an absolute right of individuals which no member states can derogate from under any circumstances. Therefore, the Rwanda Treaty undermines the ruling of the UKSC and the UK is on the brink of losing its hard-earned international reputation for upholding human rights. Nevertheless, the UK Government ratified the Treaty alongside passing the Rwanda Act through Parliament, passed after several rounds of ‘ping-pong’ in the Commons and the Lords.
In a parliamentary debate, the Secretary of State for the Home Department (James Cleverly) has argued that
the Rwanda legislation sends an unambiguous message: that if you enter the United Kingdom illegally, you cannot stay…… and that people will not be able to use our asylum laws, human rights laws, or judicial review to block their legitimate removal.
James Cleverly
In January 2024, the UNHCR’s assessment in Rwanda concluded that no significant improvements in asylum adjudication had taken place. Therefore, the Rwanda Act is accused of misrepresentation, by deeming Rwanda safe. If Rwanda is indeed safe, one might question the need for this legislation outright, as the government could satisfy the courts of its compliance with the ECHR and other international law. Nevertheless, the Prime Minister (Rishi Sunak) has indicated that the first flight is likely to take off in a few weeks.
Whilst the issue undoubtedly raises human rights’ concerns, it also raises fundamental constitutional compatibility issues such as separation of powers, rule of law and abuse of parliamentary sovereignty. This is because the Rwanda Act arguably removes the court’s fundamental role of interpretation, since the Act, under s.2, compels the courts to deem Rwanda safe, despite the evidence being overwhelmingly to the contrary. Lord Carter of Haslemere asserts: ‘’as others have suggested, the Supreme Court might strike down the Act as unconstitutional, despite being an uncodified constitution’’. Further, Lord Steyn in R (on the application of Jackson) v Attorney General [2005] UKHL 56, suggested that it is not hypothetical for English courts to uphold the rule of law over parliamentary sovereignty. The Rwanda Act demonstrates the extent of sovereignty the UK Parliament wields, particularly post-Brexit, which calls for constitutional, rather than parliamentary sovereignty (i.e. a codified constitution) to legally restrain Parliament from passing draconian laws, and thereby conferring the power to impartial judges to strike down or invalidate an Act of Parliament. On the other hand, parliamentary sovereignty is the cornerstone of the UK constitution, and thus it may be argued that a codified constitution is likely to make the UK constitution rigid and cease Parliament’s power to make and unmake law on any subject matter. Additionally, a codified constitution is likely to confer power on unelected judges to strike down and invalidate an Act of a democratically elected Parliament, which will arguably render the UK constitution unrepresentative of society.
How does the Act breach human rights?
Although s.3 of the Rwanda Act disapplies key provisions of the HRA (such as the duty of public authorities not to act incompatibly with ECHR rights (s.6 HRA) and stops the domestic courts from ‘taking account’ of ECtHR case law (s.2 HRA)), it retains the power, under s.4 of the courts to declare legislation incompatible. It can be argued that Section 4 of HRA is akin to a tiger without its formidable teeth as the courts cannot invalidate primary legislation. However, as Lord Carter suggests, the urge to uphold the rule of law may create unprecedented history by declaring the Rwanda Act (primary legislation) ‘unconstitutional’.
While asylum seekers’ fear of an unsafe Rwanda stems from its terrifying history (such as Rwanda Genocide), they are helpless as according to s.2(3) of the Rwanda Act, the English courts have no jurisprudence on appeal against Rwanda’s safety. Therefore, the claims against the UK are likely to be brought before the ECtHR (largely on the grounds of prohibition from torture and inhuman and degrading treatment with the risk of facing refoulment should they be removed to Rwanda (Article 3), and right to fair trial (Article 6), by depriving them of their right under s.2(3) of the Act to review, or appeal against a decision of the Secretary of State or an immigration officer relating to their removal to Rwanda). This may cause friction between the UK and the Council of Europe. Further, s.2(4) of the Rwanda Act conveniently ignores the ECHR and the Refugee Convention, and s.5(2) of the Act confers absolute discretion on government ministers to disregard the interim measures of the ECtHR (Rule 39, ECtHR).
However, s.5 is unlikely to change UK’s position at the international level and the UK will remain subject to the jurisdiction of the ECtHR unless it decides to set itself free from international interference. This requirement under Rule 39, combined with ECtHR’s interim measure in 2022 to stop flights to Rwanda, fuels the Government’s views on withdrawing from the Council of Europe and reforming the HRA in order to attain less interference from the ECtHR. Further, a recent plan by the UK Home Office to detain the first batch of illegal migrants exacerbates the entire affair by potentially breaching fundamental rights against torture and inhuman treatment, contrary to Article 3, ECHR, and arguably depriving them of their right to liberty contrary to Article 5 ECHR.
Interestingly, the UKSC declared the Rwanda Policy unlawful, but not the whole policy of removing asylum-seekers to a safe third country (at para 149). Although it is essential to address the issue of illegal migration (which threatens social and economic stability), it is argued that the UK Government has gone too far in accomplishing this agenda by undermining fundamental rights of individuals, and its other international obligations. The Government has laid too much importance on political and economic values, while jeopardising its hard-earned international reputation for upholding the rule of law and protection of human rights.
Conclusion
The Rwanda Act is in pressing need for repeal in order to restore the UK’s fundamental constitutional principles and maintain its international human rights obligations, arguably calling for the adoption a codified constitution to restrain parliamentary (government) sovereignty. This law arguably raises the possibility of the UKSC taking an unprecedented action by declaring the Rwanda Act ‘unconstitutional’ in order to uphold the rule of law over parliamentary sovereignty. Further, the UK cannot possibly sustain its constitutional and international reputation without a solid human rights machinery such as the HRA, nor relieve itself from international standards (such as that imposed by the Council of Europe), as this may have severe constitutional consequences, including shattering its own human rights mechanism. It will be intriguing to see the ensuing constitutional implications such as repetitive challenges before the ECtHR from this saga, and where the UK’s machinery of rights ultimately lands.