TOM HICKMAN KC, PROFESSOR OF PUBLIC LAW AT UNIVERSITY COLLEGE LONDON (UCL) – WRITTEN EVIDENCE (URA0001)

 

 

EVIDENCE TO THE INTERNATIONAL AGREEMENTS COMMITTEE

 

CONCERNING THE UK-RWANDA ASYLUM AGREEMENT

 

  1. This note responds to the Committee’s Call for Evidence and request to address the Government’s Policy Statement on the Safety of Rwanda (Asylum and Immigration Bill) dated 12 December 2023 (“Policy Statement”).

 

  1.         What is your overall assessment of whether the changes to the asylum partnership arrangements made by the new Agreement, including its legal form, are likely to meet the concerns raised by the Supreme Court?

 

  1. The status of the Supreme Court’s judgment and Parliament’s role in determining whether its concerns are met

 

  1. I begin with the obvious but nonetheless important observation that the Supreme Court did not simply express concerns about the ability of the Government of Rwanda (“GoR”) to ensure its agreement with our Government—then embodied in a memorandum of understanding (“MoU”)—would be complied with on the ground, it made (and upheld) findings of fact and law. It was charged by Parliament, under the Human Rights Act 1998, with deciding whether transferring asylum-seekers to Rwanda would breach the ECHR and it found that it would do so.  It also upheld the judgment of the Court of Appeal, which had reached the same conclusion.  

 

  1. The Committee wishes to follow rather than depart from the judgment of the Supreme Court. It also appears that this is the Government’s intention.  For the reasons I explain below, in my view this is the right approach on grounds of constitutional principle. However, if this is the approach to be adopted, very careful attention needs to be given to the reasoning of both the Supreme Court and the Court of Appeal (the judgment of which, as I have noted, was upheld), both in terms of the reasoning that forms the ratio decidendi as well as any obiter dicta (which this Committee would no doubt also wish to respect and follow).

 

  1. This is particularly important because the Government’s Policy Statement at times appears to seek to re-argue points that were argued before the Court of Appeal and Supreme Court, for instance those paragraphs that relate to the relevance of GoR’s agreement with Israel, the GoR’s human rights record and the paragraphs concerning the risk of a lack of independence of the Rwandan judiciary. Without careful attention to the evidence and arguments advanced before the domestic courts, it is not possible to identify the extent to which the position of the Government and the assessments that it relies upon have been considered and rejected by the Court of Appeal and Supreme Court. The Committee may wish to consider the extent to which points made in the Government’s Policy Statement, in particular those referred to above, reflect positions taken in the Government’s written evidence and submissions before the courts that were not accepted by our courts.

 

  1. It would in my view contravene constitutional principle, namely, the separation of powers, for Parliament not to follow the Supreme Court’s judgment. Whilst Parliament can and does sometimes overrule court judgments, this can raise separation of powers concerns, in particular where Parliament is not simply changing a legal rule for the future. In the present case, Parliament is not being asked to change the relevant legal rule that applies under article 3 of the ECHR (and many other international treaties). Parliament is being asked to say that the facts satisfy that rule’s requirement that persons not be exposed to torture, inhuman, cruel or degrading treatment, in circumstances where, just a few weeks ago, the Supreme Court held that the facts do not.

 

  1. In R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at paragraph 46, the Speaker of the House of Commons, though his Counsel, asked the Divisional Court to recognise that the separation of powers requires both the courts and Parliament to exercise restraint and to respect the proceedings and rulings of the other. On the one hand, it requires courts to abstain from interfering with proceedings in Parliament. On the other hand, it imposes a duty on Parliament to “respect” the “proceedings and decisions of the Courts”. This constitutional principle, or convention of restraint, is not legally enforceable in its application to Parliament but it is a principle of the highest importance nonetheless, which Parliament should observe.

 

  1. Of course, if the facts have changed such that Parliament is following rather than overruling the Supreme Court, the conflict with this principle would be less pronounced. However, even the process being conducted by Parliament in seeking to ascertain whether the situation has sufficiently changed to distinguish the Supreme Court’s judgment is questionable from a separation of powers perspective. This is because if the Government considers that the circumstances have now changed such that transfers to Rwanda can now safely commence, it can simply take a decision to this effect and, if challenged (as it inevitably would be), it can defend its position in court. There is no need for Parliament to legislate. If the Government has sufficient confidence that circumstances have changed that it is prepared to ask Parliament to rule that this is the case, why not return to the courts? Unless there is a pressing need for Parliament to seek to tread the constitutionally fraught path of trying to ascertain if the facts allow the Supreme Court’s judgment to be distinguished, it should require the Government to return to the courts.

 

  1. The courts are, I suggest, the appropriate place for the Government to argue that there has been a change of circumstances. Asking Parliament to determine this question places Parliament in very difficult position both constitutionally and in practical terms. It is a difficult position from a practical perspective because Parliament is not well equipped to forensically test the evidence whereas courts are designed to do this—through adversarial argument—and Parliament recognises this by asking the courts to decide such questions. It is also a difficult position for Parliament from a constitutional perspective because Parliament will not wish to contradict the ruling of the Supreme Court or be thought to be doing so.

 

  1. The position is all the more unsatisfactory because the Government’s intention is that asylum-seekers threatened with removal to Rwanda will be able to challenge the compatibility of the Safety of Rwanda (Asylum and Immigration) Act (if passed) by seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998 (explanatory notes at 41).Therefore the courts will be asked to decide whether there has been a change of circumstances, and Parliament’s judgement that there has been will be subject to judicial determination as to its correctness. The courts would be bound by Act of Parliament to engage in this exercise and determine this question, however reluctant they might (or might not) be to engage in it. There therefore seems to be no real point in Parliament deciding the question given that it is ultimately to be decided by the courts. The better approach is for Parliament to exercise “restraint” and recognise the issue should be determined in court without its intervention.

 

  1.                     What, then, is the reason for the Government asking Parliament to determine that Rwanda is safe? The Government’s reason is that it would frustrate the ability of asylum-seekers to prevent their removal to Rwanda by injunction. This is because a claim seeking a declaration of incompatibility—which, as noted above, would be allowed by the Bill—does not affect the validity of the legislation in question. Therefore at the same time as proceedings progressed seeking to determine the compatibility of the Act with Article 3 ECHR, the courts would have to apply the Act and therefore allow transfers to commence. Is this a good reason for Parliament to legislate? No. It is an objective that would contravene international law, since individuals with an arguable claim that their removal from a country that is a signatory to the ECHR would breach article 3 (as opposed to e.g. article 8) have a right under Article 13 to obtain a remedy with suspensive effect pending the determination of that issue.

 

  1.                     As the Grand Chamber of the Strasbourg Court stated in De Souza Ribeiro v France, App. No. 22687/07 at 82:

 

“in view of the importance the Court attaches to [Article 3] and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised, the effectiveness of the remedy for the purposes of Article 13 requires… that the person concerned should have access to a remedy with automatic suspensive effect” (emphasis supplied)

 

  1.                     In A.M. v The Netherlands, App. No. 29094/09, at 66, the principle that individuals alleging violations of Article 3 arising from removal, must be able to access a remedy with automatic suspensive effect was described as “a firmly embedded principle” in the court's case law. The Bill would prevent individuals obtaining a suspensive remedy from our courts relating to the risk that they would be returned to their home contrary. Therefore the legislation would breach Article 13. 

 

  1.                     This is a matter that may be of particular concern to this Committee because the Rwandan Government has very commendably made clear that the Agreement must be implemented by the Government and our Parliament in a manner that complies with international law.

 

  1.                     My conclusions are threefold:

 

(1)            It is welcome that both this Committee and the Government is seeking to apply and follow rather than depart from the judgments of our domestic courts. That is consistent with respect for the separation of powers. However, achieving this requires very careful attention to the arguments that were advanced before the domestic courts and the evidence they considered. The Committee may wish to consider whether some parts of the Government’s Policy Statement seek to re-argue points argued before the Court of Appeal and Supreme Court. 

 

(2)            Nonetheless, the question that Parliament is being asked and which this Committee is seeking to determine by its call for evidence, namely, whether the new Agreement with Rwanda means that it is now safe to transfer UK asylum-seekers to Rwanda, is one that Parliament may ultimately wish to decline to answer on the basis that it is more appropriately determined by the courts and there is no reason the matter cannot be brought back before the courts now. 

 

(3)            The Committee might also be concerned that implementing the Agreement in the manner proposed by the Government (i.e. the Bill in the form introduced to Parliament) would breach Article 13, ECHR by preventing individuals from obtaining a suspensive remedy from domestic courts if removed to Rwanda under the Agreement. Not only does Parliament seek to uphold international law, but the Rwandan Government has commendably made clear the importance of the Agreement being implemented in accordance with the ECHR and international law.

 

 

 

  1. What did the Supreme Court decide?

 

  1.                     The core finding of the Supreme Court was not that the terms of the previous MoU were not binding in law, or were insufficiently protective, but that the Rwandan government does not possess the practical ability to fulfil its assurances to the UK government, at least in the short term. That is not something that can be fixed by entering a binding treaty alone.

 

  1.                     The Court anticipated that structural changes might be made to the Rwandan asylum system, but as these had not been implemented and as this would need to be accompanied by effective training and capacity building, it found Rwanda to be unsafe.

 

  1.                     The Court found that there is a culture within Rwanda – across various agencies – of “at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention.” The Court explained that in order to remove a real risk of refoulement, there would need to be both “structural change” and “capacity building”. This “may not be straightforward” as it requires “an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring.” (R (AAA (Syria & Ors) v Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023, at 104).

 

  1.                     The Court also cautioned that increased monetary investment and monitoring are not themselves sufficient to remove the risk: “over time” it stated, this “may result in the introduction of improvements, but that will come too late to eliminate the risk of refoulement currently faced by asylum seekers removed to Rwanda” (at 93).

 

  1.                     The Court found that, “there is reason to apprehend that there is a real risk that the practices described above will not change, at least in the short term.” (at 93, emphasis added).

 

  1.                     The Court very deliberately referred to the inability of Rwanda to become safe “at least in the short term”.  The purpose of this statement was not to imply that Rwanda would be safe in the medium term. Its purpose was to make clear that because of the nature of the issues identified, Rwanda could not be considered safe for ECHR purposes in the short term.

 

  1.                     The Court did not, of course, consider the Agreement or any evidence following September 2022. However, as noted, it anticipated further structural changes as well as capacity-building and still made clear its view that Rwanda would not be safe for UK asylum-seekers in the short term.

 

  1. Does the new Agreement meet findings and reasoning of the judgments of the Supreme Court and Court of Appeal

 

  1.                     The difficulty with the government’s position that the treaty has rendered Rwanda safe is that the treaty – in itself – is not capable of addressing the issues that the Supreme Court identified as giving rise to a real risk of refoulement from Rwanda.

 

  1.                     The Government’s Policy Statement states that,

 

“These assurances and commitments provide clear evidence of GoR’s ability to fulfil its obligations generally and specifically to ensure that Relocated Individuals face no risk of refoulement.” (at 13)

 

  1.                     This, however, does not follow. The assurances themselves are not evidence of the GoR’s ability to fulfil them.

 

  1.                     More detailed consideration of the proposed measures is given in answer to the questions below.

 

 

 

 

 

 

 

  1.         How strong and effective are the protections for persons relocated to Rwanda set out in the Agreement?

 

Right of settlement in Rwanda

  1.                     The obligation in Article 10.3 of the Agreement not to return persons whose asylum claims are refused is a key element of the Government’s case. The government argued before the Supreme Court that the deficiencies in the Rwandan asylum system did not matter because Rwanda would not remove any persons transferred from the UK even if their asylum claims were refused. The government argued, presumably on the basis of its discussions with the Rwandan government, that the Rwandan government does not send persons to countries unless it has an agreement with the governments of those countries to receive such persons, and it does not have such agreements with countries from which UK asylum seekers emanate. Therefore, such persons would remain in Rwanda.

 

  1.                     The Supreme Court made two points in response: (i) it is unnecessary for Rwanda to have agreements in order to return persons to their home state, where they have a right to reside; and (ii) the “absence of such agreements has not prevented refoulement, direct or indirect, from occurring in practice as we have explained.” (at 94).

 

  1.                     Article 10.3 is intended to shore-up the argument that the government lost in the Supreme Court, by allowing it to say that there is now a promise by the Rwandan government, enforceable by the UK, that unsuccessful asylum seekers will be settled in Rwanda. But the argument faces formidable objections.

 

  1.                     The second reason given by the Supreme Court (see paragraph 27 above) for rejecting the argument first time around remains highly salient: if the Rwandan government previously considered that it could not return persons to their home countries without an agreement with such countries, but officials nonetheless expelled such persons from Rwanda, there is reason for thinking that officials might likewise expel UK-transferred persons contrary to the commitment of the Rwandan government in Article 10.3.

 

  1.                     Indeed, the Supreme Court’s finding that UK asylum seekers face a real risk of refoulment is by no means predicated solely on the fact that the Rwandan asylum system fails to correctly establish refugee status in many cases (and that persons wrongly refused asylum are thus at risk of return). The Supreme Court also referred to examples of arbitrary expulsion contrary to international law, such as the clandestine removal of numerous persons in breach of the agreement with Israel and evidence of recent cases of persons being “peremptorily rejected”, “forcibly expelled” and “threatened with refoulment” outside the asylum system (at 86 and 89). The lack of understanding and observance of international law norms by officials identified by the Supreme Court goes beyond persons assessing asylum applications.

 

  1.                     It is very significant that Article 10.3 itself expressly recognises the problem that it might not be observed on the ground. It states: “The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation does not occur…. which includes systems …for … regularly monitoring the location of, the Relocated Individuals.” This implicitly recognises the existence of a real risk of non-compliance, but the “effective system” and other “systems” recognised as necessary are yet to be agreed (let alone in place), operational and demonstrably effective. 

 

New structure for determining asylum claims

  1.                     Much of the focus of argument before the courts was on deficiencies in the Rwandan asylum system. This is therefore also the main, but by no means the exclusive, focus of the Supreme Court’s judgment. Structural change to the Rwandan asylum processing system was recognised as a necessary part of what would need to be put in place to render Rwanda safe for UK asylum seekers. The treaty seeks to achieve this by providing for the creation of a new First Instance Body and Appeal Body. These might prove to be effective, or the system might continue to operate much as it has operated in the past.

 

  1.                     The First Instance Body might, for instance, be staffed by the same government officials who currently make asylum determinations. While the treaty specifies they must be “appropriately trained” (Annex B, 3.3), the Court of Appeal explained that it had not been shown that, “officials would be trained adequately to make sound, reasoned, decisions” and the training, “is not sufficient to equip [officials] to perform their functions properly”.[1] A requirement for the provision of legal assistance (Annex B, Pt 5) is welcome, but again dependent on the effectiveness of its implementation in practice. Similarly, a requirement in the first three months for the Body to take into account the opinion of a seconded expert is welcome, but it is unclear what if any contribution it will make.

 

  1.                     The Government’s Policy Statement refers to the provision of 4 days’ training in November 2023 by Home Office experts to 76 persons. This is welcome and the Committee is likely to wish to look in detail as to what this involved and who precisely received this training.

 

  1.                     The Appeal Body must be co-chaired by a Rwandan judge and a judge drawn from another Commonwealth country. They must select other judges with a “mix of nationalities”.  However, the Body could be drawn predominantly from the Rwandan judiciary—as long as, overall, there are some judges with different nationalities to Rwanda—and individual appeal panels could be constituted in whole or with a majority of Rwandan judges. It also remains subject to the ordinary Rwandan courts.

 

  1.                     The points made by the Supreme Court about the current right of appeal to the Rwandan courts therefore seem equally applicable to the Appeal Body: “the system is …untested” and there is “a risk of a lack of independence in politically sensitive cases” (at 83–84).

 

  1.                     The Government’s Policy Statement refers to a decision of the Rwandan High Court overturning a decision to refuse asylum which was handed down on 23 February 2023. The judgment itself has not been made available. The details are obviously highly important and precisely the sort of evidence that should be considered by our courts. 

 

  1.                     The Government’s Policy Statement makes clear that the changes to the asylum system required by the Agreement will require new legislation in Rwanda which will be passed by the Government of Rwanda “in coming months” (at 20). It is unclear whether primary legislation will be required or when the new law will take effect. Our courts would not generally speculate or pronounce upon on the content of legislation that is not yet enacted, whether it is to be enacted in this country or another country. One thing seems clear, however, the structural changes required by the Agreement are not yet in place either in law or on the ground.

 

Monitoring

  1.                     The treaty provisions concerning a Monitoring Committee of independent persons and Joint Committee of senior officials largely replicate those that were proposed under the MoU and the courts did not consider that they removed the real risk of refoulment. They do include certain welcome enhancements.

 

  1.                     The key point made by our courts is that such arrangements cannot stop refoulment happening in the first place, but at best can detect failings and contribute to improvements. That point appears to remain salient.

 

  1.                     The government of Rwanda also appears to have been unwilling to give these bodies enforcement powers. The Joint Committee can make “non-binding recommendations” (Article 16.2), while the Monitoring Committee can “advise” and “suggest improvements” (Article 15.3). It is therefore for the Rwandan government to decide whether or not to accept the views of these bodies.

 

Recall

  1.                     Article 11 includes an obligation for Rwanda to facilitate the return of persons transferred by the UK at the request of the UK government. A similar provision was contained in Article 11 of the MoU by which the Rwandan government promised to facilitate returns should the UK government be legally obliged to repatriate individuals. The fact that this is now legally binding may be of some significance to whether interim measures are necessary pending any further court decision.

 

  1.                     One of the main differences between the domestic courts in refusing interim relief and the Strasbourg Court in granting it was a difference as to their level of confidence in Article 11 of the MoU. However, things have now moved on. In the light of the Supreme Court’s judgment finding that UK asylum seekers face a real risk if returned to Rwanda, the ability to repatriate individuals is unlikely to be so important, given that individuals can only be repatriated if they remain in Rwanda.       

 

 

 

Conclusions

  1.                     The new Agreement is clearly a better arrangement than that which existed before the Supreme Court’s judgment and it lays the basis for structural changes which might meet the concerns of domestic courts in time. However, the dominant reasoning of our domestic courts was not about the terms of the MoU but the effectiveness of implementation on the ground. As things stand, it appears that the structural changes to the Rwandan system require as a next step a new Rwandan law which is potentially months away, then there will need to be appropriate appointments made and systems put in place and demonstratively effective training, not only of those persons working within the asylum-processing system but across agencies that pose a risk of refoulement of asylum-seekers.

 

  1.                     In these circumstances, the Committee is likely to want to have much more detailed information on issues such as:

 

 

 

 

 

 

 

 

  1.         What is your view of the enforcement mechanisms in the Agreement including the dispute settlement procedure, the enhanced independent Monitoring Committee, and the provision for lodging individual complaints? Do you consider that there are any essential supplementary conditions for this to be an effective process?

 

  1.                     See above for general comments on the monitoring arrangements.

 

  1.                     Article 15.9 provides for the Monitoring Committee to develop a complaints procedure but this is not yet in place. It will depend on asylum-seekers having proper information about such a process in their own language and confidence that a complaint will not adversely affect them. As noted above, the fact that the Monitoring Committee has only advisory powers may mean that asylum-seekers are less likely to utilise this mechanism.

 

  1.         The Agreement establishes a new asylum appeal body with co-presidents and judges of mixed nationality. What are your views on the design of this body and how it might function in practice?

 

  1.                     I have addressed this above.

 

  1.         Although offshore processing is not new, are there precedents for requiring that claims must be for asylum in a third country?

 

  1.                     No response.

 

  1.         Are there any other aspects of the Agreement which you would like to draw to the attention of the International Agreements Committee?

 

  1.                     The term of the Agreement is until 13 April 2027 at which point it terminates unless renewed by both parties (there is a limited provision for extension due to court action). The question therefore arises, what happens after April 2027 to persons transferred by the UK Government before this time?

 

  1.                     Unless the parties agree to continue to be bound by the Agreement, the obligations to continue respecting the rights of transferred persons comes to an end and are no longer enforceable (Vienna Convention on the Law of Treaties, Article 70).

 

  1.                     Article 21 of the Agreement provides that the parties shall continue to comply with their obligations under “relevant domestic laws, international law and this Agreement once it ceases to have effect”. This is not as clear as it could have been: if the Agreement has ceased to have effect, compliance the Agreement after April 2027 is not enforceable.  The Agreement could easily have been clarified to state that the treaty continues in effect in relation to those transferred under its terms. This could still be confirmed in a side-agreement.

 

Note

 

  1.                     It is understood that the Government will be publishing an additional evidence pack. This response has been prepared prior to that pack being published.

 

 

 

18 December 2023

 

 

[1] [2023] EWCA Civ 745 at 99 and 259.