RWA0018 The Law Society of England and Wales

1. The Law Society of England and Wales is responding to this House of Lords International Agreements Committee’s Call for Evidence in its representative capacity as the independent professional body for 200,000 solicitors in England and Wales. Our role is to be the voice of solicitors, to drive excellence in the profession and to safeguard the rule of law.
    
2. This response outlines our views on the Government’s use of the Memorandum of Understanding (MoU) between the UK and Rwanda for the provision of an Asylum Partnership Arrangement. The Law Society has sought to address in this response questions 1, 3, 4, 6 and 8 from the call for evidence.
   
   Q1. What are the implications of signing an agreement that asserts that it is not binding on either Party in international law? Is the MoU an appropriate vehicle for this agreement?

3. The implications of signing an agreement that is not binding on either Party in international law is that there are no enforcement mechanisms available to implement its provisions. The Law Society believes a type of agreement regulating a matter that has significant rule of law implications should not have been implemented as a MoU as (I) this is not legally binding and so cannot ensure the rights of those affected are protected, and (II) it is not subject to parliamentary scrutiny.

I. Not a legally binding document

4. The MoU is not a legally binding document, in that it does not create any legal obligations between the parties who have signed the agreement. This is emphasised in Article 1.6 of the UK-Rwanda MoU itself, which states that “[the] Arrangement will not be binding in International law”.  As a result, there are no enforcement mechanisms that could be used to implement its provisions and no consequences for violating the MoU. The Law Society is concerned about the setting of a precedent of signing similar MoUs with other countries effectively allowing them to escape their international legal obligations.

5. The UNHCR has issued a guidance note on bilateral and/or multilateral transfer arrangements of asylum-seekers, which contains guidance on assessing the legality and/or appropriateness of transfer arrangements. Among these criteria it states that “[a]n arrangement between States for the transfer of asylum-seekers is best governed by a legally binding instrument, challengeable and enforceable in a court of law by the affected asylum-seekers.”[1] Given the UK’s obligations under the 1951 Refugee Convention, the International Covenant on Civil and Political Rights, and the European Convention of Human Rights (ECHR) it is difficult to conceive how a non-binding document could fulfil the relevant requirements.

6. If Rwanda violates the agreement, there is no way for the UK to enforce the MoU and/or to hold Rwanda accountable, except refraining from sending further people to Rwanda under the agreement, i.e., ceasing to implement the policy. This would mean that if an individual’s human rights are breached in Rwanda, there is nothing that can be done by the UK to enforce the agreement and the individual cannot seek redress or justice in the UK courts.
    
7. In addition to the consequences for individuals, this has potential consequences for the UK’s international standing, which is underpinned by our reputation for upholding the rule of law. Violating our international obligations (for example, non-refoulement) because of this agreement would damage this reputation and hence our influence on the world stage.
   
   II. Lack of Parliamentary Oversight and Scrutiny
    
8. The Law Society is concerned with the Government’s use of a MoU to introduce such a significant change in the UK’s treatment of refugees due to the lack of any oversight and scrutiny by Parliament. As it has not been introduced as a treaty, it does not fall under the parliamentary scrutiny requirements of the Constitutional Reform and Governance Act 2010.[2]
    
9. The Act requires that a treaty must be laid down before Parliament at least 21 sitting days before ratification. As this arrangement has been introduced through an MoU, the domestic and international law requirements (including under the Vienna Convention of the Law of Treaties which largely embodies customary international law on treaties that binds all states) do not apply to it.

10. Despite the above, the nature of the MoU does not in any case prevent the UK’s court system reviewing the policy by way of judicial review, and challenges are to be heard in the High Court in September and October 2022. When the Government announced the policy, they explicitly said they were prepared for legal challenges.[3]

11. The Law Society has raised concerns over the last few years about the rhetoric used by the Government to describe such challenges and the lawyers who bring these challenges on behalf of their clients.
     
12. Most recently the Law Society raised concerns over rhetoric describing lawyers and legal challenges in relation to the current Rwanda asylum plan.[4]  Such challenges establish if a government is abiding by its own laws; in the Law Society’s view this is even more important where a policy has not been subject to parliamentary scrutiny and as such the legal challenge is the first opportunity to examine its lawfulness.

Q3. How do you assess the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals’ access to legal assistance, and data protection?

13. Article 4.1 of the MoU states that ‘The Participants assure one another that the understandings reached in this Arrangement will be met in respect of all Relocated Individuals.’ Whilst it is positive that these assurances include inspection and monitoring, a relocated individual’s access to legal assistance, and data protection, they are not legally binding. They are therefore unenforceable, and no consequences are prescribed in the event any assurance is not met.

14. Particularly in relation to asylum-processing arrangements, Article 9 of the MoU states that Rwanda is expected to ensure that it processes each claim for asylum in accordance with international and domestic law, including the 1951 Refugee Convention, and that it protects each individual’s human rights. This would include protections from inhuman and degrading treatment.

15. The United Nations High Commissioner for Refugees (UNHCR) raised a wide range of issues regarding the capacity of the Rwandan asylum system in its 2020 submission to the Universal Periodic Review. These included persons seeking asylum being denied access to asylum procedures; discrimination within the asylum process towards, for example, LGBT persons; concerns in relation to the impartiality of decision-making; lack of legal representation; lack of independence in the appeals process; the difficulty in appealing decisions as the rationale for negative decisions was not being provided; and insufficient access to interpreters.[5] 
     
16. The Government also had access to this information from the High Commissioner for Refugees directly. We are therefore concerned that the Government has proceeded without putting in place any legally binding safeguards or enforcement mechanisms to protect the rights and access to justice of those affected by the policy.

17. Similarly, the UN Special Rapporteur on Trafficking in Persons has raised concerns that there are insufficient safeguards to ensure that victims of trafficking or persons at risk of trafficking are identified, given assistance, and ensured international protection. The UN Special Rapporteur went on to state that individuals are at risk of further victimisation and trauma by being transferred to a third country, as we note in more detail in response to Q6 below.[6]

18. In the context of the prohibition on returning (or sending) any person to a country where they would be at risk of torture or ill-treatment (in violation of Article 3 ECHR), the ECHR has consistently held that “diplomatic assurances were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment” (Ismoilov v Russia App No 2947/06 [24 April 2008]). Rather, there is an obligation “to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment” (Othman (Abu Qatada) v United Kingdom App No 8139/09 [17 January 2012]).
     
19. If Rwanda does not meet its commitment under the MoU in this regard, it would appear the UK’s only option is to cease relocating people to Rwanda. This would be a political choice rather than a legal avenue. For the individuals who have been relocated, their primary route to protect their rights will therefore be by accessing the domestic law of Rwanda, which is a concern given the issues noted previously.

20. The MoU provides for the establishment of monitoring bodies. However, these have not yet been set up and there are currently insufficient details to determine whether they would provide effective oversight. However, even if these monitoring bodies did work to identify breaches of the MoU, as the MoU agreement is not enforceable, it is hard to see what could be done in this event. The Law Society would suggest putting in place safeguards including but not limited to a suspension clause that could be activated should the monitoring bodies find that Rwanda has breached any provision of the MoU and/or that the protection being provided is not up to international standards.

Q4. Given Article 5.1 of the MoU does not impose an obligation on the UK to provide legal assistance during the screening of asylum seekers before relocation to Rwanda, what mechanisms are there for legal advice to be provided to the individuals selected for relocation?

21. Access to justice is a fundamental right under domestic law as well as human rights law and international law.
     
22. There should be mechanisms for effective access to legal advice and assistance for asylum seekers to ensure that the relocation does not violate any of the UK’s international obligations (e.g., prohibition of torture, identifying victims of trafficking). Furthermore, every individual should be able to challenge a removal decision, and have their case processed fairly and transparently.
     
23. Most individuals selected for removal under the policy will be eligible for legal aid under existing rules, and so will be eligible for assistance from firms that hold a contract with the Legal Aid Agency to provide advice in the specific areas of asylum/immigration and public law.[7] For those who have been detained in a detention centre under immigration powers, they will be able to access legal representation through the Detained Duty Advice Scheme (DDAS).[8]
     
24. However, as there is no mechanism within the MoU for individuals to access legal representation if given a notice of removal under this policy; the only option would be for the individuals to seek legal advice on their own. This is likely to be challenging due to language barriers, lack of available information and extremely short timeframes of either 7 days (if detained) or 14 days (if non-detained) to respond from when they receive the Notice of Removal.
     
25. We echo concerns from the UNHCR that asylum seekers are likely to have little or no knowledge of the asylum system or conditions in Rwanda to make representations.[9] We believe this part of the MoU is inherently flawed and unfair and gives rise to a real risk that individuals may be removed to Rwanda without having had access to legal advice or effective representation.
     
26. Article 5.1 of the MoU states that “In order to expedite the process of relocation to Rwanda in a timely manner, the United Kingdom will be responsible for the initial screening of asylum seekers, before relocation to Rwanda occurs in accordance with this Arrangement.” We are concerned that the short timeframe for screening individuals is insufficient to ensure that unsuitable cases for removal are identified. Complex issues that may not at first be apparent may be missed, such as whether the person may be a victim of torture and/or trafficking, have disabilities or other protected characteristics which might make their removal to Rwanda unsafe.
     
27. We are concerned that failure to identify specific issues properly could be incompatible with our domestic law and international obligations under, for example, Articles 3 and 4 ECHR. Hence, it is crucial that these individuals have access to legal representation to ensure these issues are not neglected or missed.
    
    Q6. Is the MoU consistent with the UK’s obligations under international law, including (but not limited to) the 1951 Refugee Convention, the European Convention on Human Rights, and the Council of Europe Convention on Action against Trafficking in Human Beings? 
     
28. There are serious questions about whether the MoU complies with the UK’s obligations     under existing international law – for instance, if categories of people were in practice prevented from claiming asylum in the UK altogether, or if the Government were in effect to pre-judge claims for asylum for a particular group of people.
     
29. In relation to the 1951 Refugee Convention, the UNHCR has concluded that the migration partnership that the MoU establishes is incompatible as a whole “with the letter and spirit of the 1951 [Refugee] Convention”[10]. This is because the MoU is effectively shifting responsibility for identifying and meeting the international protection needs of refugees from the UK to Rwanda. Commenting on the issue of bilateral transfer arrangements, the UNHCR emphasised these must “advance international cooperation to uphold refugee protection, enhance responsibility sharing and be consistent with the widest possible exercise of the fundamental rights and freedoms of asylum seekers and refugees.”[11] According to the UNHCR, the UK-Rwanda MoU does not deliver on any of these and a key reason is that the MoU is not binding, enforceable or capable of legal challenge under international law, including by the individuals removed under it.
     
30. Beyond this, we believe that other specific issues regarding compatibility with Articles 31 and 33 of the Refugee Convention also arise. Article 31 prohibits penalties from being imposed on refugees for entering a country without permission for the purposes of seeking asylum. Removal of asylum seekers under the MoU is on the basis that their claims are inadmissible as a result of their irregular entry and their having passed through other countries on their journey to the UK. These criteria for inadmissibility are established by the Nationality and Borders Act 2022 where, during parliamentary debates, strong concerns were raised that such criteria would likely constitute a penalty, in contravention of Article 31 of the Refugee Convention. These concerns therefore apply to the MoU.
     
31. Article 33 of the Refugee Convention, as well as the European Convention on Human Rights, further prohibits refoulement – the returning of a refugee to a place where they would face persecution. This applies to both the country of origin and a third country. There are concerns – raised, for example, by the UN Special Rapporteur on Trafficking in Persons – that those removed could face persecution in Rwanda and that there is a risk of them being subsequently removed from Rwanda to their country of origin and facing persecution there.[12] Both eventualities could contravene the principle of non-refoulement.
     
32. There are also questions in relation to whether practices under the MoU are compliant with international obligations to investigate, identify and provide support to victims of torture[13], trafficking[14] or modern slavery.[15] As stated above, the lack of access to legal representation greatly increases the risk of such victims not being identified.

33. In addition, should people with particular vulnerabilities (such as disabilities) be removed without sufficient support being in place in Rwanda, this could amount to a violation of the Article 3 ECHR protection against inhuman and degrading treatment. It is also possible that the criteria used for removal could result in de facto discrimination, for example, on the basis of race or ethnicity.

Q8. How, in practice, should the impact of the MoU be evaluated, and against which measures?

34. The impact of the UK-Rwanda MoU may be evaluated taking into consideration several factors: 

• How does it further or contradict the UK’s obligations under international law?
• How does it further or contradict the UK’s obligations under domestic law, including human rights law?
• How does it affect the rights of refugees arriving in the UK, including the extent to which it protects them from or exposes them to further human rights violations and abuses? 
• How effectively are individuals subject to removal under the policy able to access legal advice and representation?
• How effectively are individuals subject to removal able to raise legal challenges to their treatment?
• How are the protection outcomes assured for those relocated, including in the short, medium, and long term? This would include ongoing monitoring of individuals relocated to Rwanda under the scheme.
• In the absence of Parliamentary accountability, what alternative mechanisms will be put in place by the UK Government to seek robust assurance over the delivery of the MoU, including provisions to hold the Rwandan Government to account for delivery or failure?
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35. A risk assessment should also be carried out in relation to the effects of the transfer on each refugee.

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