RWA0012 Dr Rossella Pulvirenti and Dr Kay Lalor (Manchester Metropolitan University)
Rossella’s work focuses on victims and witnesses of international and transnational crimes. Some of those individuals are asylum seekers who cannot be returned to their countries of origin because they fear to be persecuted. In January 2022, Rossella addressed the Parliamentary Sub-Committee on Women and Equalities on the topic of equalities and asylum seekers and was asked to provide further written information to the Committee following her oral evidence. Outside academia, she has also worked at the Nottingham and Nottinghamshire Refugee Forum and the European Court of Human Rights in Strasbourg.
Kay’s work explores international human rights law with specific focus on the development of LGBTQI rights as a mode of regulating and governing sexuality. Her work is particularly concerned with how wider geopolitical power imbalances are reproduced by dominant narratives of LGBTQI rights protections. Outside academia, she has worked directly with LGBTQI and feminist activists based in over 20 countries to co-create strategies and toolkits for promoting and protecting LGBTQI rights under conditions of marginalisation and inequality.
- Our evidence addresses Points 5 and 6 of the Call of Evidence and, more specifically, whether the MoU is consistent with the UK domestic law and the UK’s obligation under international human rights law.
- In order to assist Parliament’s scrutiny of MoU, we have considered the Points 5 and 6 through the following key questions:
- Does the MoU raise any concerns with regard to the Rule of Law and the British Constitutional Framework? (Discussed in Section One below)
- Is the MoU fully compliant with the 1951 Refugee Convention, European Convention on Human Rights (and the Human Rights Act) and Council of Europe Convention on Action against Trafficking in Human Beings (and the Modern Slavery Act)? (Section Two)
- What does the Equality Impact Assessment of the Memorandum of Understanding reveal about the Government’s understanding of its legal responsibility to protect marginalised groups subject to the reallocation policy? (Section Three)
- Our evidence finds that there are significant issues that arise with respect to the principle of the Rule of Law particularly in relation to the lack of Parliamentary scrutiny of the MoU with Rwanda (Paragraphs 8-11).
- We find that the policy places the UK in violation of its obligations under the 1951 Refugee Convention because it imposes penalties on asylum seekers upon their illegal entry in the UK. Also, it breaches the principle of non-refoulement to territories where refugees’ life or freedom would be threatened and, finally, it does not guarantee the enjoyment of the civil and socio-economic rights as established by the 1951 Refugee Convention (Paragraphs 12-16).
- Additionally, the MoU contravenes the European Convention on Human Rights thus raising the possibility of challenges under the Human Rights Act 1998. Not only does ECtHR jurisprudence establish that Memoranda of Understanding are not sufficient as general diplomatic assurances against ill treatment to reduce the risk of refoulement, but this MoU does not absolve the UK from its obligations against non-refoulement under both Article 3 (prohibition from torture and inhuman or degrading treatments) and Article 6 (flagrant denial of liberty or justice) (Paragraphs 17-22).
- The MoU violates both the Council of Europe Convention on Action against Trafficking in Human Beings and the Modern Slavery Act because it does set any obligation for the UK to identify victims of modern slavery. Furthermore, it deprives victims of modern slavery of any additional protection linked to their status within the UK and hinders the ability of the UK’s authorities to conduct any investigation and prosecution against the alleged smugglers (Paragraphs 23-28).
- Finally, we find that there are numerous issues with respect to the rights and equality of groups with protected characteristics, that are not fully considered in the Equality Impact Assessment that will likely lead to the violation of the rights of those with protected characteristics under the Equality Act 2010 (Paragraphs 29-39).
Section One: The Rule of Law and British constitutional framework
- From a Rule of Law perspective, we identify at least two issues a) insufficient opportunities for Parliamentary scrutiny of the elements of the MoU and the wider Rwanda Relocation Policy; and b) the non-justiciability and non-legally binding nature of the MoU. The MoU is the wrong format for this type of agreement and is open to abuse and to legal challenge. These issues could in part be rectified by bringing the domestic elements of the MoU further into force via primary legislation and by formalising the MoU with Rwanda into a treaty that encompasses adequate legal safeguards.
- The adoption of a Memorandum of Understanding with Rwanda rather than a treaty means that the agreement has not been subject to sufficient Parliamentary scrutiny. Our reading of the MoU and of associated documents found vague terminology, legal lacunas and unclear interpretations of the UK’s human rights obligations. In the absence of Parliamentary scrutiny, it is very likely that these issues will be examined by the courts in order to provide the necessary clarity. This will cost time, money, and resources that might better be directed elsewhere. The Australian policy of offshoring asylum seekers to Papua New Guinea is an indication of the time and resources the policy can consume.
- The opacity of the MoU means that there is a real risk of arbitrary application of its terms and/or uncertainty as to whom the policy will apply. There are multiple examples of this lack of clarity. We list two below as exemplars:
- The Objectives in Section 2.1. of the Memorandum states that “this Arrangement is to create a mechanism for the relocation of asylum seekers whose claims are not being considered by the United Kingdom, to Rwanda, which will process their claims and settle or remove (as appropriate)”. Discussion of the policy in the press by Ministers has tended to obfuscate rather than clarify who will be eligible for consideration under this Agreement and clarity is needed as to the criteria by which an application will be selected for consideration in the UK or not.
- In Section 4.1. on ‘Assurances’, it is stated that both the UK and Rwanda will ensure that “this Arrangement will be met in respect of all Relocated Individuals”. Again however, clarity is required as to what ‘in respect of’ constitutes in this situation: must the British government ensure that a human rights threshold is achieved, a domestic legal threshold or some other legal measure? Is the British government obligated ensure that Rwanda secures parity of human rights protection?
- A second Rule of Law issue arises in Section 2.2. of the MoU which states that this Memorandum does 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”. The MoU, as a non-legally binding and not enforceable document, limits the capacity of those subject to removal to challenge decisions before British courts. These two factors in combination present a significant challenge to fundamental principles of the British Constitution including rule of law, principles of procedural fairness, effective remedy and natural justice.
Section Two: Consistency of the MoU with international and domestic human rights law
- The MoU is in flagrant violation of the international human rights law obligations of the UK under the 1951 Refugee Convention, Convention Against Torture, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and European Convention on Human Rights (and Human Rights Act) because the transfers do not relieve the UK of its international obligations. Once asylum seekers reach the British shores, they are within the UK’s jurisdiction until they land in Rwanda (as made clear by Section 6 of the MoU). This triggers the international and domestic human rights obligations of the UK towards those individuals. Although the MoU is intended as a non-binding instrument, the MoU shifts the burden of the responsibility of protecting the rights of those individuals from the UK to Rwanda.
- First, the right to seek asylum is an absolute right and cannot be restricted any circumstance. Section 2.1. of the MoU violates Article 31 of the 1951 Refugee Convention which contains a prohibition on the imposition of penalties on asylum seekers because of their illegal entry in the territory of a state. The Home Secretary, Priti Patel, clarified that this regime applies to all asylum seekers who are irregularly entering the UK. Many asylum seekers travel irregularly and outsourcing the asylum claim of an asylum seeker to Rwanda constitutes a penalty under Article 31(1) of the 1951 Refugee Convention and contravenes the subsequent obligations contained in Article 31(2).
- Second, the MoU violates Article 33 of the 1951 Refugee Convention which prohibits the expulsion or return of a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulment is not only enshrined in the 1951 Refugee Convention but it is also customary law and jus cogens and is further safeguarded by several other human rights instruments of which the UK is part. These are the Convention Against Torture, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights (see below).
- In addition, the MoU is silent on the specific rights granted to refugees in Rwanda. Section 9.1. of the MOU establishes that each Relocated Individual will be treated in accordance with "international and Rwandan human rights law, and including, but not limited to ensuring their protection from inhuman and degrading treatment and refoulement”. Given that only non-refoulement is expressly mentioned, it seems a rather narrow approach compared to the wide array of fundamental civil and socio-economic rights enjoyed by refugees under the 1951 Refugee Convention. These rights include, for instance, the right to property (Article 13), artistic rights and industrial property (Article 14), right of association (Article 15), right to access to court (Article 16), right to engage in wage-earning employment (Article 17), right to housing (Article 21), right to public education (Article 22), right to public relief (Article 23) and right to social security (Article 24).
- It is our view that the MoU is not fully compliant with the 1951 Refugee Convention and many other international human rights instruments with regards to non-refoulement. The Government should ensure that each Relocated Individual will be offer both in the UK and in Rwanda the same level of protection afforded by the 1951 Refugee Convention and other international human rights instruments.
European Convention on Human Rights
- First, it must be noted that in ECtHR jurisprudence Memoranda of Understanding are not sufficient as general diplomatic assurances against ill treatment to reduce the risk of refoulement. The ECHR requires case by case assurances rather than general agreements and the MoU will not meet this threshold.  Thus, it is likely that seeking case by case assurances will require time, money, litigation and effort.
- As with the Refugee Convention and the other human rights instruments mentioned above, the principle of non-refoulement is enshrined in the ECHR. State responsibility is engaged “where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country”.’
- The ECtHR has confirmed that this includes indirect removal to an intermediate country “does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention”. The same decision confirmed that multilateral agreements did not absolve the UK from its responsibilities under the ECHR.
- The Government’s Equality Impact Assessment of the Rwanda Removal Policy (discussed further below) identifies and acknowledges particular groups who might be at risk of treatment in violation of Article 3 should they be removed to Rwanda. The UNHCR has also raised concerns that asylum-seekers relocated from the UK to Rwanda may not be treated in accordance with accepted international standards. However, because the MoU is not legally enforceable, should asylum seekers be subject to ill treatment in Rwanda (whether they are identified as at risk in the Equality Impact Assessment or not), the UK will have no enforceable means of meeting its obligations under the ECHR to prevent ill treatment.
- Further caselaw of the ECtHR has extended the scope of non-refoulement to protect individuals from flagrant denial of liberty and justice. This means that the UK will find itself in violation of its non-refoulement obligations should the Rwandan asylum system fail to treat asylum seekers justly. As UNHCR has identified a number of issues with the Rwandan asylum system, both in its July 2020 submissions to the Universal Periodic Review and to Rwandan and UK authorities, there is a real risk of this eventuality.
- In accordance with this analysis. it is imperative that the MoU must be compliant with the ECHR and its caselaw. The ECHR is given effect in the Human Rights Act 1998, thus non-compliance with the UK’s obligations under the ECHR will likely lead to challenges under the HRA.
Modern Slavery under international and domestic frameworks
- The MoU is incompatible with the Council of Europe Convention on Action against Trafficking in Human Beings and the Modern Slavery Act because it contains no obligations for the UK to protect, respect and fulfil the right to freedom from slavery. Indeed, only Section 14 of the MoU establishes that Rwanda should have regards to any special needs that may arise as a result of their being a victim of modern slavery and human trafficking and will take all necessary steps to ensure these needs are accommodated.
- First, the UK has an obligation to identify victims of modern slavery under both Article 10 of the ECAT and the National Referral Mechanism (NRM) as a framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support. More specifically, the former provision sets that victims of modern slavery “shall not be removed from [the State’s] territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2”. The MoU breaches this obligation.
- Second, this deprives victims of modern slavery of any additional protection linked to their status. For instance, they might be denied medical or other assistance to victims lawfully resident within the State’s territory (Article 12(3) ECAT) and the right to have access to the labour market, to vocational training and education (Article 12(4) ECAT). Additionally, they will not be able to enjoy a period of recovery and reflection of at least 30 days to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities (Article 13 ECAT), the right to have access to a renewable residence permit (Article 14 ECAT), the right to compensation and legal redress (Article 15 ECAT).
- Third, the transfer of the potential victim of modern slavery to Rwanda is likely to violate the obligations to investigate and prosecute the perpetrators of modern slavery under Chapter V of the ECAT and under Article 4 ECHR. This was reiterated by the Supreme Court in MS (Pakistan) v Secretary of State for the Home Department  UKSC 9. It stated that the UK has an obligation to launch an effective investigation into the breach of article 4 of the ECHR (Prohibition of slavery and forced labour) and the investigation could not take place if the Appellant was going to be removed to Pakistan. thus, it prohibited the UK to remove the victim of modern slavery from its territory.
- Those obligations are mirrored at the national level in the 2015 Modern Slavery Act and the National Referral Mechanism (NRF), set up by the Government to identify and support victims of trafficking in the UK following to the ECAT’s ratification. Thus, the MoU also infringes those provision since the MoU does not contain any provision which obliges the UK to take care of the victims of modern slavery before sending them to Rwanda.
- Thus, we urge the Government to, at minimum, include specific safeguards to the Memorandum of Understanding in line with international and domestic standards in favour of the victims of modern slavery to address these issues. More preferable, would be a binding instrument such as a treaty with Rwanda that fully incorporated these safeguards, with adequate legal recourse.
Section Three: Equality and the Equality Impact Assessment
- The MoU raises several challenges with regards to the international and domestic equality legislation, including Article 1A(2) of the 1951 Refugee Convention, Article 14 of the ECHR and the 2010 Equality Act. To illustrate these challenges, this section draws upon the Equality Impact Assessment of the Rwanda policy.
- The Equality Impact Assessment acknowledges that the policy will disproportionately impact particular groups on the basis of age, race, sex, and religion or belief. This is justified as being a proportionate means of achieving a legitimate aim. It should be noted that there is no evidence presented that the policy will achieve the stated aim of deterring travel to the UK via small boats in the English Channel, via trucks crossing the Channel, or that the policy will disrupt the smuggling operations that facilitate such crossings. Indeed, research has shown that a similar deal made by Israel with Rwanda in 2013 led to refugees being detained, beaten in prison, and ultimately paying smugglers to escape Rwanda and make a new journey to safety. Thus, it is equally possible to argue that the policy has the potential both to lead to further ill treatment of those with protected characteristics, and also to further fuel smuggling operations.
- Also related to evidence, within the documentation from the Country Policy and Information Team’s assessment, little reference is made to the reports and assessments of UN Human Rights bodies, some of which contradict or add a further perspective to the Country Information reports.
- For example, the findings of the Country Impact Team from its interviews are that: “General treatment [of disabled people is] good, no discrimination, still some issues but there is political will (shown in laws, establishment of institutions like NCHR & National Council for Peoples with Disability) to ensure issues are revealed and addressed”. This does not fully align with the UN Committee on the Rights of Persons with Disabilities 2019 Concluding Observations to Rwanda, which registered concern about domestic legislation that reflected a medicalised rather than a human rights based model of disability and that contained pejorative terms for people with disabilities. It also noted the slow pace of the adoption of a national disability policy and the lack of inclusion of the voices of those with disabilities in the formulation of laws and policies. Such discrepancies would need to be addressed to justify the Equality Impact Assessment’s finding of generally low risk of indirect discrimination (and we would add the risk of the violation of fundamental human rights) across a range of protected characteristics.
- Similarly, issues arise in the Equality Impact Assessment’s treatment of LGBT asylum seekers. First, the Assessment appears to place a great deal of emphasis on the lack of criminalisation of LGBT people and communities. However, a lack of criminalisation does not guarantee an absence of ill treatment. Not only does Rwanda not offer the specific guarantees of protection and non-discrimination that international bodies have found necessary for the full protection of LGBT people, Human Rights Watch has reported the arbitrary detention of LGBT people in Rwanda prior to the CHOGM summit in 2022. Thus, in opposition to the established UK precedent of HJ (Iran) and HT (Cameroon) the Equality Impact Assessment is insufficiently attentive to the protected rights of LGBT people to express their identities in public places.
- Moreover, the Equality Impact Assessment notes that: “The visibility of gender as opposed to sexuality issues places transgender women at greater risk of ill-treatment". Implicit in this comment is a kind of discretion test: transgender women are more likely to subject to harm because they may be more visible and thus less able to be discreet. However, HJ (Iran) and HT (Cameroon) firmly rejects this kind of discretion test: the safety of LGBT persons removed to Rwanda should not depend on their capacity to appear heterosexual and cisgender in public places.
- Finally, the Sexual Orientation and Gender Identity Claims of Asylum (SOGICA) project based at Sussex University has found that LGBT asylum seekers face a widespread culture of disbelief and significant difficulties in providing evidence that satisfies decision makers that they are LGBT. Decision makers have been known to fall back on stereotypes, for example immigration judges have rejected asylum claims on the basis that asylum seekers do not have a “gay demeanour”.
- Despite assurances that “A person’s sexual orientation and gender reassignment status will be closely taken into account on a case-by-case basis to decide if that an individual is eligible under the policy and may therefore be relocated to Rwanda”, the established “culture of disbelief” in the UK, could mean that those who are LGBT but do not fit the decision maker’s expectations or stereotypes are disbelieved. This is particularly likely given that there is no obligation upon the UK within the Memorandum of Understanding to provide legal advice to asylum seekers during the screening process in the UK. It would also mean that the LGBT asylum seeker would not be subject to the case-by-case consideration promised in the Equality Impact Assessment.
- Thus, significant doubts must be raised about the UK’s capacity to properly assess and protect LGBT asylum seekers when they arrive in the UK and are considered for the Rwanda reallocation scheme. Further doubts arise as to what would happen if an LGBT person (or a person with another protected characteristic) was reallocated to Rwanda and faced ill treatment. The Memorandum of Understanding speaks of the establishment of a Monitoring Committee and section 11.1 briefly discusses the possibility of return to the UK should the UK be legally obligated to facilitate such a return. However, the guarantees of monitoring, protection and of why return might be possible are extremely vague.
- It is our view that the Equality Impact Assessment has focused overly on legislative conditions in Rwanda, occasionally excluding criticism of this legislation by UN bodies. It has not engaged with the current realities of asylum seekers with protected characteristics in the UK asylum and immigration system and how these realities would translate to the treatment of asylum seekers facing removal to Rwanda. A more careful engagement with these realities would reveal significant legal and practical problems that we anticipate could arise.
- With respect to the problems identified in this section, we note that Canada has recently published guidelines on immigration and gender (which would constitute both the protected characteristics of sex and gender identity under the Equality Act). These guidelines, along with evidence submitted to the Women and Equalities Committee, and recommendations from the SOGICA project indicate the time, sensitivity and care that is required in considering asylum claims of those with protected characteristics. The UK would not be able to implement best practices – or indeed in some cases, meet its basic human rights obligations – if it were to outsource its asylum seekers to a third country
 Senior Lecturer, Manchester Law School, Manchester Metropolitan University
 Reader in Human Rights Law, Manchester Law School, Manchester Metropolitan University
 Human Rights Watch ‘Australia: 8 Years of Abusive Offshore Asylum Processing’ (15 July 2021) https://www.hrw.org/news/2021/07/15/australia-8-years-abusive-offshore-asylum-processing
 Priti Patel, ‘Oral Statement on Rwanda (15 June 2022) https://www.gov.uk/government/speeches/oral-statement-on-rwandaNULL
 Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran and David Harris, International Human Rights Law (OUP) 2022, Chapter 5.
 In Saadi v Italy, for instance, the ECtHR argued that the individual ‘real risk’ of ill-treatment could not be eliminated by a generic note on the fact that Tunisian laws respected the rights of prisoners, and that Tunisia had acceded to the relevant international treaties and conventions Saadi v Italy, App no. 37201/06 (28 February 2008). See also See e.g., Mukhitdinov v Russia, App no 20999/14 (19 October 2015), § 49; Khalikov v Russia, App no. 66373/13 (6 July 2015), § 53; Rustamov v Russia, App. no. 11209/10 (3 July 2012), § 131; Nizomkhon Dzhurayev v Russia, App. no. 31890/11 (3 October 2013), § 132; Baysakov and Others v Ukraine, App no 54131/08 (18 February 2010), §§ 51-52 ; Yuldashev v Russia, App no 1248/09 (8 July 2010), § 85; Sultanov v Russia, App no 15303/09 (4 November 2010), § 73; Gaforov v Russia, App no 25404/09 (21 October 2010), §§ 132, 138; Khaydarov v Russia, App. no. 21055/09 (20 May 2010), §§ 105, 111, 115; Soldatenko v Ukraine, App no 2440/07 (23 October 2008), § 73; Ismailov v Russia, App no 2947/06 (24 April 2008), § 127.
 Soering v UK App No 14038/88 (7 July 1989), § 91
 T.I. v. United Kingdom, Admissibility Decision of 7 March 2000, Appl. No. 43844/98, 15
 UNHCR ‘UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum-
Seekers under the UK-Rwanda arrangement’ https://www.unhcr.org/publications/legal/62a317d34/unhcr-analysis-of-the-legality-and-appropriateness-of-the-transfer-of-asylum.html
 Rossella Pulvirenti, “Undesirable and Unreturnable Individuals: Rethinking the International Criminal Court’s Human Rights Obligations towards Detained Witnesses” (2022) 35 Leiden Journal of International Law 433; Omar Othman (Abu Qatada) v. The United Kingdom, Decision of 9 May 2012,  ECHR 1. Othman (Abu Qatatda)
 See UN Human Rights Committee ‘Concluding observations on the fourth periodic report of Rwanda’ (2 May 2016) UN Doc CCPR/C/RWA/CO/4 
 Siliadin v France (2006) 43 EHRR 6,; Rantsev v Cyprus and Russia (2010) 51 EHRR 1; Chowdury v Greece (Application No 2184/15) and in J v Austria (Application No 58216/13), § 32-33.
 MS (Pakistan) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 9
 Home Office Impact Assessment: Migration and Economic Development Partnership with Rwanda (9 May 2022) https://www.gov.uk/government/publications/migration-and-economic-development-partnership-with-rwanda
 See UNHCR, “Destination Anywhere” (June 2019), available at https://www.unhcr.org/uk/5daf2cef4, at p. 31, para. 3.6.
 Shahar Shoham, Liat Bolzman and Lior Birger ‘Moving under Threats: The Treacherous Journeys of Refugees who ‘Voluntary’ Departed from Israel to Rwanda and Uganda and Reached Europe’ (University of Oxford, Border Criminologies)
Moving under Threats: The Treacherous Journeys of Refugees who ‘Voluntary’ Departed from Israel to Rwanda and Uganda and Reached Europe | Oxford Law Blogs
 Home Office ‘Country policy and information note: Rwanda, interview notes (Annex A), May 2022
 UN Committee on the Rights of Persons with Disabilities ‘Concluding observations on the initial report of Rwanda’ (3 May 2019) UN Doc CRPD/C/RWA/CO/1. Further comments on the removal of disability based discrimination were made by the Review of the Working Group on the Universal Period Review for Rwanda in March 2021, see UN Doc A/HRC/47/14
 Peter Tatchell ‘Don’t fall for the myth that it’s 50 years since we decriminalised homosexuality’ The Guardian, 23 May 2017 https://www.theguardian.com/commentisfree/2017/may/23/fifty-years-gay-liberation-uk-barely-four-1967-act
 See the Yogyakarta Principles at https://yogyakartaprinciples.org/ and the reporting of the UN Special Rapporteur on Sexual Orientation and Gender Identity at https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity
  UKSC 31  1 A.C. 596
 See SOGICA Project at https://www.sogica.org/en/
 Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board - Immigration and Refugee Board of Canada (18 July 2022) https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx
 See generally https://committees.parliament.uk/work/1510/equality-and-the-uk-asylum-process/publications/written-evidence/?page=1
 SOGICA Project ‘Final Recommendations https://www.sogica.org/en/