Notes

Yesterday, the Supreme Court found the Rwanda agreement unlawful.
The Prime Minister issued a statement indicating what he will do to address this.


In April 2022 the UK and Rwanda entered into a Memorandum of Understanding for the provision
0:41
of an Asylum Partnership Arrangement. It provided that some of the asylum seekers
0:48
arriving in the UK would be sent to Rwanda where their claims would processed through the Rwandan
0:54
asylum system. Under this arrangement, those sent will not be returned to the
1:00
UK even if they are subsequently recognised as refugees. The evidence suggests that the
1:07
UK paid £140 million to Rwanda in April 2022 in connection with this agreement.
1:16
Since then the policy has been the subject of legal challenges both domestically and
1:21
before the European Court of Human Rights. To date no-one has been sent to Rwanda.
1:29
The legal process prompted a political backlash against the European Convention of Human Rights.
1:35
This erupted in 2022 following an interim application made to
1:41
the European Court of Human Rights.
1:43
Interim measures are temporary measures granted by the European Court of Human Rights on an
1:49
exceptional basis where applicants face a real risk of serious and irreversible harm.
1:57
The 2022 interim measure related to a flight scheduled to leave the UK on the
2:03
14th June 2022. One of the asylum seekers that would have been on that flight, KN,
2:12
had arrived in the UK on 17th May 2022 and claimed asylum. A doctor concluded that KN
2:19
may have been the victim of torture. KN was, however, issued with an order stating that
2:26
he should be sent to Rwanda. KN sought to challenge this, and the European Court of
2:32
Human Rights issued an interim measure preventing his removal until his case had been decided by UK
2:39
courts. So the European Court of Human Rights did not determine the merits of the issue.
2:45
Over the last year the legality of the Rwanda policy has been challenged
2:50
in our domestic courts and yesterday the UK Supreme Court unanimously found it unlawful.
2:59
Whilst the case has been making its way through our courts there have been various
3:03
suggestions by politicians that if the policy is found to be unlawful that they
3:08
will do ‘whatever it takes’ to address that. This has been understood to mean that they
3:15
would seek to withdraw from the ECHR. The Prime Minister reiterated that yesterday.
3:23
It is therefore important to observe that the SC in determining that the
3:29
Rwanda policy was unlawful did not rely heavily upon the European Convention
3:35
on Human Rights and in fact did not decide whether the policy violated Article 3 ECHR.
3:44
In order to understand the legal question that the Court considered it is necessary
3:50
to first set out the legal framework. It provides that in certain circumstances the
3:56
Home Secretary can transfer asylum seekers to any safe third country
4:02
which agrees to accept them. It also provides that a country only qualifies
4:08
as a safe third country if the principle of “non-refoulement” is respected there.
4:15
The principle of non-refoulement appears in several forms – essentially
4:19
it requires that asylum seekers are not returned, directly or indirectly,
4:24
to a country where their life or freedom would be threatened on account of their race, religion,
4:30
nationality, membership of a particular social group or political opinion,
4:35
or they would be at real risk of torture or inhuman or degrading treatment.
4:40
The HS argued that the arrangements made with Rwanda, and the assurances given by Rwanda,
4:47
meant that Rwanda was a safe third country for these purposes.
4:53
The claimants argued that it was not a safe third country, as there is a risk of refoulement.
5:00
Consequently, the question in the legal proceedings was whether there
5:04
were substantial grounds for believing that the
5:07
removal to Rwanda would expose asylum seekers to a real risk of refoulement.
5:14
The case made its way up through three courts.
5:18
The first - the Divisional Court – in February - held that some of the removal decisions were
5:24
procedurally flawed, but rejected the wider challenge to the policy.
5:29
This was then overturned by the Court of Appeal. It held that there are substantial
5:35
grounds for believing that there are real risks that asylum claims will not be properly
5:40
determined in Rwanda AND consequently that there is a real risk of refoulement.
5:48
This was unanimously upheld by the Supreme Court.
5:52
The Supremem Court considered three questions in coming to that conclusion.
5:57
The first question was whether the Divisional
6:00
Court had applied the wrong test when considering the risk of refoulement
6:06
The Supreme Court confirmed that the correct legal test is whether there
6:10
are substantial grounds for believing that removal would expose asylum seekers
6:16
to a real risk of ill-treatment as a consequence of refoulement.
6:21
Crucially it confirmed that this is a question for
6:25
the court which it must answer based on its assessment of the evidence before it.
6:31
This was important as there were several passages in the Divisional Court judgment
6:37
which suggested that it saw its function as one of reviewing the Secretary of State’s
6:44
assessment to determine whether it was a tenable one, rather than making its own assessment.
6:51
The second question - whether the Court of Appeal was entitled to
6:55
interfere with the Divisional Court’s conclusion
6:59
The Supreme Court found that the Court of Appeal was entitled to do so as the
7:03
Divisional Court had erred in its treatment of the evidence.
7:07
Essentially by failing to engage with the evidence of the UNHCR, the UN’s Refugee Agency.
7:15
The Supreme Court held that in determining whether there was a risk of refoulement the
7:20
courts must consider the evidence on how the asylum system operates in practice.
7:27
Vital evidence was provided by the UN which should have been given particular weight given
7:32
its remit and unrivalled practical experience of working in the Rwandan asylum system.
7:40
Consequently, the Divisional Court had erred and
7:43
the Court of Appeal was entitled to interfere with its conclusion.
7:49
The third question – was whether the Court of Appeal was entitled to conclude
7:54
that there were substantial grounds for thinking that asylum seekers would face a
7:59
real risk of ill- treatment by reason of refoulement following removal to Rwanda
8:06
The Supreme Court held that the Court of Appeal was right to conclude this.
8:11
It reasoned that
8:12
First, the general human rights situation in Rwanda;
8:16
Second, the operation of Rwanda’s asylum system, including its history of refoulement;
8:21
And, third, Rwanda’s non-compliance with
8:24
assurances it had given under an asylum arrangement with Israel
8:29
All provided substantial grounds for believing that there is a real risk of refoulement.
8:35
In respect of the general human rights system in
8:38
Rwanda – the Supreme Court emphasised amongst other evidence the following:
8:44
Judicial findings by a British court in 2017 that Rwanda - “has instigated
8:50
political killings which had led British police to warn Rwandan nationals living in
8:56
Britain of credible plans to kill them on the part of that state”
9:01
The fact that in January 2021 (so just a year prior to the Rwanda Agreement) the
9:07
United Kingdom government had criticised Rwanda for “extrajudicial killings,
9:12
deaths in custody, enforced disappearances and torture”.
9:18
The fact that advice provided by officials during the process of selecting a partner
9:22
country for the removal had stated that Rwanda has a poor human rights record.
9:28
Finally, there was evidence that in 2018 the Rwandan police
9:32
had fired live ammunition at refugees protesting over cuts to food rations.
9:39
Examining the operation of Rwanda asylum system the Supreme Court observed:
9:45
First - that whilst a right of appeal has existed since 2018,
9:49
there has never been an appeal in practice.
9:52
Second - hat there is evidence suggesting a lack
9:55
of judicial independence and lack of independence in the legal profession
10:00
Third - that evidence provided by the UN indicates that 100%
10:05
of nationals from known conflict zones have had their applications rejected.
10:11
And finally – that there was evidence of the practice of refoulement in Rwanda
10:17
A final important part of the evidence was the failed Israel/Rwanda asylum agreement.
10:24
The Secretary of State argued that the failure of this scheme was irrelevant.
10:29
This was rejected by the Supreme Court. It found that it was relevant that Rwanda
10:34
had previously entered into an agreement undertaking to
10:38
comply with non-refoulement and had apparently failed to do so.
10:45
Overall the Home Secretary sought to argue that past and current inadequacies in the asylum system
10:52
in Rwanda were not reliable indicators of how the UK Agreement would operate.
10:58
But this was rejected by the Supreme Court.
11:02
It held that determinations of risk must be based on what has happened in
11:07
the past, and in the light of the situation as it currently exists,
11:12
as well as in the light of what may be promised for the future.
11:17
So where does this leave the Rwanda Agreement and where does this leave human rights law?
11:23
Rishi Sunak announced yesterday that he will pass ‘emergency legislation’ asserting that Rwanda is
11:30
a ‘safe country’. He will therefore seek to fast track legislation asking Parliament to
11:36
deem Rwanda a safe country for these purposes. It is likely this will be highly contested.
11:43
He also stated that the UK Government will enter into a new Treaty with Rwanda,
11:48
and that this provides the assurance the Supreme Court is asking for.
11:54
Yet whilst this will amend the status of the agreement from a
11:57
Memorandum to a legally binding Treaty it does not address the problems that
12:02
the Supreme Court identified in its unanimous judgement.
12:07
The SC made it clear that it did not doubt the good faith
12:11
of the Rwandan Government – but - and here it is worth reiterating what the
12:15
SC said - that structural changes and capacity-building are needed.
12:22
The body of evidence cited by the Supreme Court suggests that those
12:27
structural changes are deep. There are multiple problems and they include a lack
12:33
of independence in the judicial system and the legal profession.
12:37
The scale of such change therefore appears
12:40
irreconcilable with the speed at which the Prime Minister wishes to advance.
12:46
Finally, it is important to note that Rishi Sunak also stated yesterday that he will not
12:52
allow foreign courts to block flights to Rwanda, and that he is prepared to change
12:57
our laws and revisit ‘international relationships’ to remove obstacles.
13:03
In particular, he stated that if the European Court of Human Rights
13:07
intervenes that he we do what is necessary. Thus withdrawal
13:13
from the European Court of Human Rights will be back on the agenda.
13:17
It is, however, worth observing that he referred to ‘international relationships’ – in the plural.
13:25
Indeed, as the Supreme Court judgment highlights the relevant international relationships are not
13:31
limited to the European Convention on Human Rights. They include the Refugee Convention,
13:37
the International Covenant on Civil and Political Rights and the Convention Against Torture.
13:43
There is also - as the Supreme Court observed
13:46
the question of non-refoulement as part of customary international law.
13:52
The significance of non-refoulment being a principle of customary
13:55
international law is that it is binding upon all states,
13:59
regardless of whether they are party to any treaties which give it effect.
14:05
The changes that the Government thus seeks are not easy, they are not cosmetic,
14:09
and they would not be without international consequences.
14:13
There is therefore a lot to consider, and a General Election is looming.