On November 15, 2023. the Supreme Court of the United Kingdom (U.K.) upheld a judgment from the Court of Appeal that the government’s policy seeking to remove to Rwanda asylum seekers whose claims are determined to be inadmissible and to have their claims heard by the Rwandan authorities was incompatible with the European Convention on Human Rights, incorporated into the domestic law of the United Kingdom by the Human Rights Act 1998.
The Rwanda Policy
The Rwanda policy was announced by then Prime Minister Boris Johnson in April 2022 and was set out in paragraphs 345A–345D of the Immigration Rules (paragraphs 345A–345C have since been deleted). These rules provide the home secretary with the power to treat an asylum claim as inadmissible if the claimant had the opportunity to apply for asylum in a safe third country and failed to do so. The result of an asylum claim being treated as inadmissible is that the claimant may be removed from the U.K. to any safe third country if the removal does not violate the principle of non-refoulement, which provides that a person seeking asylum must not be returned to their country of origin if this would place them at risk of harm and the third country agrees to accept the asylum claimant.
In April 2022 the U.K. and Rwanda entered into the Migration and Economic Development Partnership, set out in a Memorandum of Understanding (MOU), which is not legally binding in international law. In the partnership, Rwanda made assurances that it was a safe third country for asylum seekers to be removed to. The policy has been subject to legal challenges since its inception. In June 2023 the Court of Appeal ruled that the policy was unlawful as there were insufficient safeguards to protect the human rights of the asylum seekers. Specifically, the Court of Appeal stated that there were risks that the Rwandan authorities could not properly determine asylum claims, which meant that the principle of non-refoulement risked being violated. It ruled that until this issue could be corrected, sending asylum seekers to Rwanda under the partnership would mean that the actions of the public authorities of the U.K. would be unlawful due to being incompatible with the European Convention on Human Rights.
The Supreme Court Judgment
The government appealed to the Supreme Court, and the Supreme Court agreed with the Court of Appeal, upholding its conclusion that the Rwanda policy risks violating the principle of non-refoulement. The court concluded that the “Court of Appeal was entitled, on the evidence before it, to consider that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement in the event that they were removed to Rwanda.” It based this conclusion on Rwanda’s poor human rights record, notably the operation of Rwanda’s asylum system, including defects in how it processes asylum claims along with its history of refoulement and its noncompliance with assurances given under a similar arrangement with Israel. (Supreme Court judgment, at 95–100.) This decision means that the current government policy involving this country in its current state cannot be used. The ruling does not stop the government entering into agreements with other countries or from working with authorities in Rwanda to build its capacity to eliminate the risks noted by the court.
Government Response to the Judgment
In response to the judgment, Prime Minister Rishi Sunak announced that he will introduce emergency legislation to stop the policy from being blocked and continue to work on a memorandum of understanding with Rwanda aimed at resolving the courts’ human rights concerns by providing a guarantee that anyone relocated from the U.K. to Rwanda will be protected against their removal from Rwanda along with clarity that if a court orders a person to return to the U.K., this will be effected. The prime minister further stated that if the European Court of Justice issues an adverse ruling against the laws and policy and
… intervene[s] against the express wishes of Parliament[,] … I am prepared to do what necessary to get flights off. I will not take the easy way out. Because I fundamentally do not believe that anyone thinks the founding aim of the European Convention on Human Rights … was to stop a sovereign Parliament removing illegal migrants … to a country deemed to be safe in Parliamentary statute and binding international law.
Clare Feikert-Ahalt, Law Library of Congress
November 29, 2023
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