RWA0003 Amnesty International

Introduction:

1. Amnesty International UK welcomes the Committee’s inquiry into the UK-Rwanda Memorandum of Understanding (“the Arrangement”). We have taken note of the questions specified in the Committee’s Call for Evidence. Our submission is organised into sections under discrete subheadings that broadly accord with several (not all) of those specified questions.

2. In summary, the Arrangement is not in accordance with the UK’s international law obligations. It directly undermines the 1951 Refugee Convention relating to the Status of Refugees and its 1967 Protocol (“the Refugee Convention”). It is neither consistent with that Convention’s purpose, underlying principles nor specific obligations enumerated in the Articles of the Refugee Convention. Insofar as UK domestic law seeks to uphold the UK’s international obligations, the Arrangement conflicts with that law.

3. We have given careful consideration to the text of the Arrangement – which itself contains significant contradictions between statements in its Preamble and its content and purpose – and to the response of the Home Office Permanent Secretary to our letter summarising our concerns and seeking clarity as to the Arrangement.[1] We are not satisfied the Arrangement provides any effective assurances or safeguards for anyone transported from the UK to Rwanda under it against a range of serious risks to their human rights. This conclusion is quite apart from the Arrangement being by its very nature inconsistent with the Refugee Convention.

Implications of the express non-binding nature of the Arrangement; and assessment of assurances and safeguards stated in it:

4. There are several statements concerning the non-binding nature of the Arrangement. Paragraph 1.6 states that it is “not binding in International law.” Paragraph 2.2 states that “commitments” in the Arrangement “do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.” As regards the Parties to the Arrangement, paragraph 22.1 states that they “will make all reasonable efforts to resolve between them all disputes concerning this Arrangement. Neither Participant will have recourse to a dispute resolution body outside of this.”

5. On its face, therefore, the Arrangement – and any assurance stated under it – is unenforceable by anyone. That includes anyone who is relocated under the Arrangement, any interested party affected by that transportation, any national or international body with a wider interest for the rights of people who may be subject to such transportation, or the parties themselves. The implications of this are that transportation to Rwanda of any person by the UK will, or is intended to, entirely distance the latter from any care or responsibility towards that person. The UK cannot absolve itself in this way from its obligations to people who seek asylum on its territory. Nonetheless, the intention is to leave transported persons solely reliant upon the Rwandan Government to fulfil any assurance given about their treatment and upon the Rwandan State to guarantee their rights more generally.

6. We expressly raised the non-binding nature of the Arrangement with the Home Office Permanent Secretary in asking what effective remedy there will be for any transported person if Rwanda fails to meet its obligations towards that person (see Question 6 in the letter).[2] We elaborated on that question as follows:

“It appears to us that the Memorandum sets out to exclude any domestic or international court or other independent body from jurisdiction to either review or enforce the Memorandum and any standards that do or ought to apply to treatment under it. Is that correct? If it is not correct, please explain what judicial or other effective remedy will be available to the UK Government or to an individual transported to Rwanda under the Memorandum for any breach of it or the standards that either explicitly or implicitly must apply by reason e.g. of international human rights law?

7. The response to our letter makes a series of statements, none of which provides any answer to the question of effective remedy.[3] We note that the response is dated 10 June 2022. That was eight weeks after the publication of the Arrangement and seven weeks after our letter was sent (by email to the Home Office). It was the very day on which the High Court had issued its Order concerning interim relief sought in respect of the first planned transportation of people seeking asylum in the UK to Rwanda.

8. The response states:

“Together with Rwanda we have worked incredibly hard on this MoU…”

We do not demur from that statement. However, we invite the Committee to conclude that the effort made by the UK Government has simply been directed to securing its own assurances against any effective responsibility towards anyone who is transported to Rwanda. By contrast, its efforts have not been directed to securing real guarantees for such a person that she, he or they will be treated in accordance with any assurances in the Arrangement or their rights under international law. If that were otherwise, we do not understand why the response to our letter, and our specific question concerning effective remedy, would not contain even some summary explanation as to how those assurances and rights would be secured. We have also taken note of the letter of Tom Pursglove, Home Office Minister, to the Home Affairs Committee of 15 June 2022.[4] That was two days after the Court of Appeal ruling on an appeal against the Order of the High Court referred to above. The Minister’s letter responded to a question from the Committee on the matter of effective remedy. The response was as silent on that matter as was the response we received to our own letter.

9. We regret we have no confidence whatsoever that the assurances mentioned in the Arrangement would be fulfilled were anyone to be transported to Rwanda under it. Rwanda is already host to a large refugee and asylum-seeking population. As UNHCR has confirmed:

“[Rwanda’s] national asylum system is still nascent. In UNHCR’s assessment, there is a serious risk that the burden of processing the asylum claims of new arrivals from the UK could further overstretch the capacity of the Rwandan national asylum system, thereby undermining its ability to provide protection for all those who seek asylum.”

10. Moreover, as reaffirmed by a recent BBC investigation, the experience of refugees similarly transported to Rwanda under a relatively recent arrangement between Israel and Rwanda was a total abrogation of their rights with dire human rights consequences, not to mention an equally appalling boon to people smugglers, human traffickers and other criminal exploitation.[5] In our letter to the Home Office Permanent Secretary, we expressly asked about any evaluation of that arrangement between Israel and Rwanda.[6] The response makes clear that no such evaluation has been conducted and the assessment, to which the response provides a link, makes no mention of that arrangement.[7]

Consistency of the Arrangement with international law:

11. The Arrangement is not consistent with international law. We restrict consideration in this submission to specific concerns regarding the Refugee Convention and some brief consideration of the 1950 European Convention on Human Rights (“the Human Rights Convention”).

12. The Refugee Convention is broadly underpinned by a principle requiring countries to share responsibility for providing its protection. That broad principle is implicitly recognised in the Preamble, which draws specific attention to the risk of disproportionate responsibility falling upon some countries and calls for international cooperation. Rwanda already has a refugee population of comparable size to the UK.[8] It has manifestly far less resource or capacity to meet its obligations to that population. It is in a region of significant conflict, instability and population displacement.[9] It is also a country with significant human rights concerns that need to be addressed.[10] The Arrangement for transporting people seeking asylum in the UK to Rwanda is, therefore, wholly incompatible with any notion of responsibility-sharing.

13. The specific provisions of the Refugee Convention are further based on and advance principles of non-refoulement, non-penalisation and non-discrimination. A further implicit principle is that the rights, to which the Refugee Convention entitles refugees, should be delivered as efficiently as is reasonably possible.

14. As regards non-penalisation, Article 31 establishes an express prohibition against penalisation of refugees who cross borders in breach of national immigration rules for the purpose of seeking asylum. A policy of transporting people seeking asylum to another country because they have arrived or entered without prior permission (whether under UK immigration rules or otherwise) conflicts with the prohibition of penalisation.[11] Such a policy arbitrarily and impermissibly discriminates between refugees on grounds that are irrelevant to their rights and the obligation owed to them under the Refugee Convention.

15. The Arrangement purports in its Preamble to recognise principles of responsibility-sharing, non-penalisation and efficient administration of people’s asylum claims:

“Reaffirming the commitment… to enhance international protection of refugees by promoting responsibility sharing by ensuring that refugees are not subject to penalties on account of their illegal entry or presence, and ensuring the expeditious determination of claims to refugee status and asylum…”

We raised specific questions in our letter to the Home Office Permanent Secretary concerning this.[12] The response offers nothing more than a denial that transportation constitutes a penalty and bare assertions that the Arrangement is not merely consistent with but positively advances both responsibility-sharing and efficient administration.[13] With respect, none of this is credible. That would be so even leaving aside the clear statements by UNHCR that Rwanda’s asylum system remains “nascent” and transportation under the Arrangement threatens to overstretch that system.[14]

16. Introducing administrative processes for transporting people thousands of miles from the country in which they have made their asylum claims to another country for their claims to then be assessed cannot ordinarily aid efficiency. All the more so, where there is such stark disparity between the capacity of the two countries to consider and act on people’s asylum claims. Where that transportation threatens the capacity of the receiving country to meet its obligations towards the relatively large refugee population it already hosts, it is impossible to regard that as either efficient or sharing responsibility.

17. As regards the matter of penalisation, it is the UK Government’s express intention that the Arrangement will deter other people from seeking asylum in the UK.[15] That implicitly entails the understanding that transportation of someone is in some significant way unwelcome and disadvantageous to them; and that transportation is directly linked to an act of the transported person (arriving or entering the UK without prior permission) that others are to be deterred from repeating or attempting. That is a penalty.

18. All of the foregoing, creates or exacerbates a serious risk that the Arrangement leads directly or indirectly to refoulement – because Rwanda is either unable or unwilling to fulfil its obligations under the Refugee Convention.[16]

19. In addition to other breaches of its Refugee Convention obligations, the UK Government has breached its duty to cooperate with UNHCR by making and seeking to implement this Arrangement.[17] It is clear, including from UNHCR’s public statements, that this Arrangement is the very antithesis of such cooperation. The Arrangement has not merely been made in conflict with UNHCR’s advice and concerns regarding the people who may be transported under it. Its implementation also undermines UNHCR’s mandated concerns for the population of refugees who are Rwanda’s responsibility by reason of their having sought asylum in that country (rather than the UK).

20. UNHCR has more fully set out various ways by which the Arrangement conflicts with “the spirit and the letter” of the Refugee Convention.[18]

21. As regards the Human Rights Convention, it is clear that any transportation of a refugee that constitutes refoulement (whether directly or indirectly) would contravene Article 3 of that Convention (the prohibition on torture, inhuman or degrading treatment or punishment). We also consider that it cannot be consistent with the right to respect for private and family life (Article 8) of any person exercising or seeking to exercise their rights under the Refugee Convention in the UK to transport that person to Rwanda under the Arrangement. That will be especially likely where the person has family or other particular connections to the UK and is without any connection to Rwanda. However, the right to seek and enjoy asylum is intrinsically bound up with the freedom of refugees to rebuild their lives (including family and social relations). It is difficult, therefore, to see how transportation thousands of miles to an uncertain future in a place the person does not know can be either necessary, legitimate or otherwise proportionate when it is so clearly in conflict with the obligations owed to that person under, and the wider purposes of, the Refugee Convention.

22. We have intentionally not addressed in this section the discrete characteristics or vulnerabilities of individual people, who may be transported under the Arrangement, and the risks that may be associated with these characteristics and vulnerabilities.[19] Any consideration of these would need to consider various risks including that someone is unable to establish their refugee status in Rwanda, someone’s welfare is harmed by their transportation to Rwanda or someone is otherwise harmed, including by treatment that is inhuman or degrading, in Rwanda.

23. The reasons we have decided not to address discrete characteristics and vulnerabilities are briefly as follows. The Arrangement is generally incompatible with the UK’s international obligations. The relevant characteristics and vulnerabilities are numerous and addressing even a reasonable number of these would risk obscuring that general incompatibility. Our submission should not, therefore, be taken to indicate any absence of concern on our part that the Arrangement may pose a profound risk to many people by reason of such characteristics and vulnerabilities over and above the general matters we have addressed in this section.

Consistency of the Arrangement with UK domestic law:

24. The Arrangement is not consistent with UK domestic law insofar as that law seeks to uphold the UK’s international obligations.

25. Section 2 of the Asylum and Immigration Appeals Act 1993, concerning the primacy of the Refugee Convention, mandates that:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”

26. Whether that or other domestic legal safeguards are sufficient to prevent transportation under the Arrangement in breach of the UK’s Refugee Convention obligations remains to be tested in the higher courts.

27. Section 6(1) of the Human Rights Act 1998, concerning specified rights stipulated in the Human Rights Convention, mandates that:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

28. Whether that or other domestic legal safeguards are sufficient to prevent transportation under the Arrangement in breach of the UK’s Human Rights Convention obligations remains to be tested in the higher courts, and possibly the European Court of Human Rights.

Evaluation and monitoring of the Arrangement’s impact:

29. In our letter to the Home Office Permanent Secretary, we made enquiries concerning monitoring of the Arrangement.[20] The response provides no details.[21] It states that:

“More details about this will be set out in due course.”

However, we reiterate that the response is dated 10 June 2022. That was the day of the High Court’s Order concerning interim relief in relation to the first intended transportations under the Arrangement. It is striking that there was either no transparency or no information concerning monitoring even at such a very late hour in relation to that transportation. In addition to our observations in the section above concerning the non-binding nature of the Arrangement, this provides no confidence that there is any real concern on the part of the UK Government to effectively monitor the impact of the Arrangement upon people transported under it.

Concluding observations:

30. We are gravely concerned that this Arrangement breaches the UK’s international law obligations and is more widely undermining of the Refugee Convention. That is consistent with much of current Home Office policy and much that has recently been commenced of the Nationality and Borders Act 2022. We have consistently warned about this.[22] We have also warned that stated aims of the UK Government – such as to tackle people smuggling and other exploitation, fix the UK’s asylum system and provide safety to people fleeing persecution – are each being contradicted and undermined by that very same policy, including this Arrangement.[23] Indeed, it is hard to credit that several of these stated aims are truly the ambition of the UK Government.