DR ROSSELLA PULVIRENTI[1] AND DR KAY LALOR[2] – WRITTEN EVIDENCE (URA0003)

Summary

1. Our evidence addresses Points 1, 2, 3, and 6 of the Call for Evidence. We conclude that:

a)    The form and substance of the Agreement are insufficient to address the Supreme Court’s concerns.

1. The Agreement may be void under international law as it violates jus cogens and has not been entered into in good faith.
2. The substance of the Agreement cannot, in the short term, facilitate the kind of structural change to the Rwandan asylum system that would be necessary to address the Supreme Court’s concerns.

b)   The protections for persons relocated to Rwanda must be read through the context of the Safety of Rwanda (Asylum and Immigration) Bill 2023, which weakens key mechanisms for ensuring that fundamental rights are upheld. As such the Agreement cannot be said to offer sufficiently robust protections to those subject to relocation.

c)    The enforcement mechanisms in the Agreement are insufficient. They rely on structural and long-term changes to the Rwandan asylum system that are not yet in place. The Monitoring Committee lacks enforcement powers, which limits its ability to act to prevent harm.

d)   The Agreement places the UK in violation of its fundamental international obligations. It does serious damage to the UK’s reputation as a state which upholds human rights and the rule of law.

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?

2. Our overall assessment is that the changes to the asylum partnership are insufficient to address both the form and the substance of the concerns raised by the Supreme Court.

3. With respect to the form of the Agreement, we have identified issues with the validity of the Agreement and good faith requirements of entering into a treaty.

4. With respect to the substance of the Agreement, we argue that it is insufficient to fully address the concerns raised by the Supreme Court. 

The Legal Form of a Treaty

5. The Agreement with Rwanda has the legal form of a treaty. Unlike the previous Memorandum of Understanding (MoU), the Agreement creates legally binding obligations, which can be enforced before national and international courts.

The Validity of the Agreement with Rwanda

6. Our evidence argues that the Agreement may be void and without legal force. This is established by Article 63 of the 1969 Vienna Convention on the Law of Treaties, according to which “[a] treaty is void if, at the time of its conclusion, it conflicts with peremptory norm of general international law” (just cogens). Not only the UK is signatory to the Vienna Convention, but the latter is now considered to be customary law.[3]

7. The Agreement exposes individual seeking asylum to the risk of being subject to torture and inhuman and degrading treatment.[4] Additionally, it places some individuals seeking asylum at risk of being re-trafficked because, according to the US Department of State 2023 Trafficking in Persons Report, the Rwandan Government “does not fully meet the minimum standards for the elimination of trafficking”.[5]

8. Both case law and scholarship establish that non-refoulement and prohibition of slavery are jus cogens, from which no derogation is permitted. [6]

9. The failure of the Agreement to comply with jus cogens peremptory norms of international law means that the Agreement can be considered to have no legal effect. Additionally, if any act has been nevertheless performed by either Rwanda or the UK in compliance with this Agreement (which should be considered void), Article 71(1)(a) of the Vienna Convention establishes that the other party may be required to “eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law”.

The Agreement is not performed in Good Faith

10.         Our understanding is that the UK is not entering this Agreement with the necessary good faith required by Article 26 of the Vienna Convention. This would undermine the UK’s compliance with the Agreement.

11.         We suggest that the UK is not acting in good faith for three key reasons:

a)    The Agreement, read together with the Safety of Rwanda (Asylum and Immigration) Bill (‘Bill’ hereinafter), is created to circumvent the principles of rule of law and separation of powers and to frustrate the powers of both Parliament and the Judiciary. First, the Government is using the principle of Parliamentary Sovereignty to override any pre-existing international rules and to give effect to Government policy, as clarified by s. 1(4) of the Bill, which states that “(a) the Parliament of the United Kingdom is sovereign, and 5 (b) the validity of an Act is unaffected by international law”. Second, the Agreement, read together with the Bill, prevents judges from supervising the lawfulness of the action of the executive because judges must consider Rwanda to be a safe country (s.2 of the Bill), disapply the HRA (s. 3 of the Bill) and exclude the application of interim measures under s. 5 of the Bill.

b)   The Government does not appear to be acting in good faith because it has created an ad hoc legal fiction on the safety of Rwanda. S. 2 of the Bill imposes a statutory obligation upon the Home Secretary, immigration officers, courts, and tribunals to consider Rwanda as a safe country and, thus, departs from the fact-finding of the Supreme Court.

c)    The Government is aware that the Agreement is in violation of previous international legal obligations (see s. 1(5)(b)), including the European Convention on Human Rights (ECHR); the 1951 Refugee Convention, and its 1967 Optional Protocol;  the 1966 UN International Covenant on Civil and Political Rights; the 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Council of Europe Convention on Action against Trafficking in Human Beings and the Modern Slavery Act the 1954; the  Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness and the UN Convention on the Rights of the Child. Moreover, in the Bill, these international obligations explicitly prevent courts and tribunals from considering international legal obligations (s. 2(5)(d)). 

The Specific Concerns Raised by the Supreme Court

12.         The Supreme Court focused particularly on the long-term structural issues with the Rwandan Asylum System and upon Rwanda’s non-compliance with its agreement with Israel. The Agreement does not fully address either of these concerns.

Long Term and Structural Issues with the Rwandan Asylum System – The Agreement as a short-term solution to long term problems

13.         The existence of long term and structural issues within Rwanda’s national asylum system were central to the Supreme Court’s findings in AAA v Secretary of State for the Home Department. In particular, the court noted both that significant changes would be needed to Rwanda’s asylum procedures “as they operate in practice” and that “[t]he necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.[7]

14.         The proposed agreement with Rwanda attempts to address the structural shortfalls identified by the Supreme Court. However, it does not account for the fact that structural changes take time to institute. A treaty cannot guarantee that such changes will be instantly instituted or will be accessible to those who have need of those changes. It is possible that in the long term, these fundamental changes could develop into a robust system of asylum protection, but this process is not guaranteed. In the short term, we are sceptical that the treaty will be able to quickly bring about the requirement structural and fundamental reforms.

Possible Rwandan non-compliance with the Agreement

15.         The Supreme Court also highlighted the possibility of Rwanda’s non-compliance with a previous agreement with Israel to process the claims of people seeking asylum who had been removed to Rwanda from Israel, resulting in ill-treatment and refoulement of people seeking asylum.[8]

16.         The Policy Statement for the Bill attempts to address these concerns. The Government’s argument appears to be that the UK’s agreement with Rwanda is both more transparent and more stringently monitored than the agreement with Israel as such the two agreements are so different as to be incomparable.

17.         In many respects this appears to be the same argument that was rejected by the Supreme Court:

99. In the decisions challenged in these proceedings, the Secretary of State asserted that the Israel/Rwanda agreement was irrelevant. The Secretary of State has not sought in these proceedings to adduce evidence contradicting or qualifying UNHCR’s account, which is consistent with the information that ministers had received from FCDO officials and with the review carried out on behalf of the IAGCI. However, it was submitted on behalf of the Secretary of State that the Israel/Rwanda agreement was a different arrangement from the MEDP, entered into some years earlier, and could shed no light on whether the government of Rwanda could be relied on to comply with its assurances under the MEDP. 

100. We do not agree that it is irrelevant. Although the terms of the agreement may well have been different from the MEDP, and it ceased to operate five years ago, it is nonetheless a recent agreement for the transfer of asylum seekers for processing in Rwanda, under which the Rwandan government undertook to comply with the principle of non-refoulement. Its apparent failure to fulfil that undertaking is relevant to an assessment of the risk of refoulement under the arrangements entered into with the government of the United Kingdom [Italics added].[9]

Confirming the agreement with Rwanda through a treaty rather than a MoU, with enhanced monitoring mechanisms changes the legal basis of the agreement but does not obviate past evidence of non-compliance with asylum partnership agreements.

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

18.         It is necessary here to read the UK-Rwanda Treaty alongside the Bill. The Bill does several things that limit the protections offered by the Agreement.

19.         First the Bill disapplies ss. 2, 3 and 6 to 9 of the Human Rights Act (HRA) 1998. The Secretary of State was unable to state under s. 19(1)(b) of the HRA 1998 that the Bill was compatible with Convention rights. This is particularly worrying as relocation agreements do not absolve the UK of its responsibilities towards people seeking asylum under the ECHR. The conclusion that can be drawn here is that the Agreement and the Bill do not offer protections to people seeking asylum in violation of the UK’s Convention obligations. 

20.         Second, s. 2(1) Bill requires that “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”. This requirement directly contradicts the findings of the Supreme Court in AAA v Secretary of State for the Home Department. The statement that Rwanda must be treated as safe does not render Rwanda safe for relocated people. 

21.         As such the Bill removes a key fact-finding function of the courts and denies those facing relocation the full protection of the legal system. The Bill thus significantly weakens available protections for persons relocated to Rwanda by removing an essential safeguard prior to relocation. There is no mechanism in the Agreement that directly replaces this essential safeguard.

22.         The requirement that Rwanda be considered safe does not prevent decision makers and courts from considering whether Rwanda is safe for particular individuals “based on compelling evidence relating specifically to the person’s particular circumstances.”[10] This might allow slightly enhanced protections for particularly vulnerable individuals or for individuals who would be rendered vulnerable in Rwanda as a result of particular characteristics – such as sexual orientation, gender identity, disability or age – to argue against their refusal to Rwanda. [11]

23.         However, this would likely require that the vulnerable individual disclose all details of their vulnerability in their screening interview. Our own research with organisations supporting people seeking asylum demonstrates that individuals who have been traumatised will often need a significant period of time to talk about their trauma, with some taking years to disclose the full extent of what they have experienced.[12] This raises a real risk of a vulnerable, traumatised person or a person who is rendered vulnerable because of particular characteristics being removed to Rwanda without consideration of individual circumstances in s. 4 of the Bill, and without a clear avenue for redress once removed to Rwanda. 

24.         In general, the Agreement’s consideration of vulnerability and the heightened protections owed to those who are vulnerable because of circumstance or identity is lacking. There is an agreement in Article 19 resettle a portion of Rwanda’s most vulnerable refugees in the UK. However, there is no definition of what constitutes vulnerability, or of the intersectional and situational nature of vulnerability. Moreover, in the previous agreement with Rwanda, the government seemed unwilling to outline how it would identify individuals as particularly vulnerable and therefore not a suitable candidate for relocation.[13] This is significant weakness of the protections offered by the Agreement.

25.         Finally, in attempting to address the Supreme Court’s concerns about possible refoulment of people seeking asylum, the Agreement creates a form of indirect refoulement. S. (1)(3)(a) states that that “any person removed to the Republic of Rwanda under the 15 provisions of the Treaty (a “relocated individual”) will not be removed from Rwanda except to the United Kingdom”. This provision is not workable and will create a legal limbo for people seeking asylum. Under the Illegal Migration Act 2023 it appears that those returned to the UK from Rwanda would not be able to have their claims for refugee status considered in the UK. Thus, having been returned from Rwanda, if there was no “safe third country” for this person to be relocated to, a situation appears to arise in which a person could not be removed, could not be returned, and could not have their claim considered.

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?

26.         Although the Agreement attempts to shift the burden of responsibility for protecting the rights of people seeking asylum to Rwanda, it 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) of the ECHR.

27.         In the Policy Statement that accompanies the agreement, there is considerable reference to the enhanced powers of the Monitoring Committee as a means of addressing the Supreme Court’s findings that the Monitoring Committee and Joint Committee would necessarily act retrospectively.[14] We suggest that these provisions are insufficient.

28.         First, as we suggest in paragraphs 13-15 of this evidence, the fundamental and structural changes that would be required to the Rwandan asylum system in order to address the concerns of the Supreme Court will take time, effort and resource to implement. It is possible that over time, the work of the Monitoring Committee will assist in enhancing the Rwandan asylum system, but as we suggest above, this will be a long rather than a short, or even a medium-term development, and in the meantime risk of rights violations remain.

29.         Second, and more crucially, the Monitoring Committee has insufficient enforcement powers. Their powers are to meet, observe, monitor and report. They cannot issue enforceable demands for immediate changes if they find serious and systematic evidence of ill treatment. Instead, it appears that they must report to the Joint Committee, who can initiate the Dispute Resolution procedure under Article 22 of the Agreement. This could potentially leave individuals in a situation where they continue to be subject to ill treatment while the dispute resolution progresses.

30.         This gap in enforcement powers exposes a serious weakness of the Agreement. The Agreement is an attempt by the UK to fulfil its international obligations to people seeking asylum. However, the UK is using Rwanda’s domestic administrative legal system for processing asylum to attempt to meet these obligations. Rwanda, like the UK, is a sovereign state and the UK has no right to interfere with Rwanda’s domestic legal and political processes. As such, the international mechanisms developed in the Agreement, namely the Monitoring Committee, the Joint Committee and Article 22 of the Agreement, will necessarily be slower and weaker than the protections that the UK could and should offer by processing asylum claims within UK territory, where it would not be limited by the sovereign equality of states or Rwanda’s domestic processes.

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

31.         We would emphasise that it is damaging to the UK’s reputation when Agreements such as this appear to reject well-established principles of international law (under s. 1(4) of the Bill) and the right any individual to claim asylum, prohibition of non-refoulement, prohibition from torture and freedom from slavery (under s. 5 (b) the Bill). In our own research with people seeking asylum, we found that people envisioned the UK as a place where rights were respected and protected, often in contrast to the places from which they were fleeing. They were shocked and horrified to find that the UK did not live up to its international reputation.[15]

32.         The Agreement could expose the UK Government to responsibility for the violation of international law.  The Agreement does not stop people from bringing a case to the European Court of Human Rights. Our research shows the extensive obligations under the Convention that are required in relation to the protection of people seeking asylum, which includes enhanced obligations towards vulnerable individuals.[16] We do not currently believe that those obligations are being met.

33.         Finally, it should be noted that that prohibition of torture (in the form of non-refoulement) and prohibition from slavery are generally considered crimes of universal jurisdiction which can be prosecuted in any court.[17] As such the Treaty, together with the Bill could arguably expose the leaders of the Home Office, who proposed the Bill; the Prime Minister, who is the Head of the Government; and the Cabinet Secretary, who is the head of the Civil Service, to international criminal charges in any country around the world. While this scenario is unlikely to unfold, it is an arguable legal possibility, and we include it here to emphasise the seriousness of the UK’s failure to protect people seeking asylum.

20 December 2023