THE JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS (JCWI) – WRITTEN EVIDENCE (URA0007)

The Joint Council for the Welfare of Immigrants (JCWI) evidence for the International Agreements Committee Inquiry into the UK-Rwanda Agreement for the Provision of an Asylum Partnership

1. The Joint Council for the Welfare of Immigrants (JCWI) is an independent charity established in 1967. Our mission is to promote justice, fairness and equality in British immigration and asylum law and policy. We do this through policy research and advocacy, and legal representation relating to all areas of immigration and asylum. We welcome the opportunity to submit evidence to this Inquiry, in particular because we have had clients who had been issued notices of intent for removal to Rwanda under the previous Memorandum of Understanding and will likely be directly affected by the new Agreement. We wish to raise our concerns with the Agreement both on moral and human rights grounds, and the serious practical risks it will pose to individuals. We hope that our institutional expertise and the experiences of our clients will inform the Committee’s response to the Agreement.

Question one: 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. JCWI’s overall assessment is that the new Agreement does not and cannot adequately address the concerns raised by the Supreme Court, as expressed in its 15 November 2023 judgment[1]. In its judgment, the Supreme Court was unanimous and unequivocal in its finding that Rwanda is not a safe country for the purposes of the partnership due to structural and systemic failures and lack of safeguards in Rwanda’s asylum system and overall human rights protections, particularly as relates to the risk of refoulement. Our view is that the provisions in the new Agreement cannot and will not effectively address these concerns.

3. The Supreme Court’s three principal concerns are: ‘the general human rights situation in Rwanda; the adequacy of Rwanda’s asylum system, including its history of refoulement; and Rwanda’s non-compliance with assurances given under the arrangement which it entered into with Israel’ [74]. The Court further notes that ‘structural changes and capacity-building’ will be needed to eliminate the risks [105]. While the Government’s policy statement[2] claims that these concerns will be addressed, our assessment is that the new Agreement will not adequately deliver the structural changes and capacity-building needed by the time of the new Agreement’s planned entry into force in January 2024.

4. On the human rights situation in Rwanda, there has been no evidence that the situation has changed drastically since the period the Supreme Court considered in its judgment. The Court’s findings were based on numerous credible evidence including expert reports that demonstrate Rwanda’s track record of ignoring or breaching international human rights obligations. These issues are wide-ranging and systemic, and would require significant and sustained effort over time to improve. There is no evidence that such effort can be realistically accomplished by the time of the new Agreement’s planned entry into force.

5. On failures in Rwanda’s asylum system, there is similarly no evidence that significant and sustained improvements have been achieved. The Supreme Court concluded in its ruling:

‘the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place.’ [105]

Some of the failures the Court highlighted include lack of independent legal advice, lack of judicial independence, and of particular concern, the worryingly high rate of rejection of Yemenis, Afghans and Syrians who by contrast receive high rates of acceptance under the UK system. These point to a deeply problematic divergence between the UK and Rwanda’s asylum systems, and the evidence shows we cannot be confident that asylum seekers will receive a fair hearing, decision, or appeal in Rwanda.

6. The only assurance that the UK Government provides against those well-documented failures are its own words in the policy statement, as well as the proposals in outlined in the new Agreement. However, it’s important to note that the proposals are merely that – words and promises without proven guarantee of effective implementation. The UK Government states in its policy statement that there have been steps taken, such as a basic training for Rwandan officials from 20-24 November 2023. It is completely unrealistic to believe that short trainings will lead to immediate adequate safeguards and the overhaul of Rwanda’s asylum system and processes that are needed. In fact, the Supreme Court explicitly states: ‘Having regard also to the Rwandan government’s misunderstanding of its obligations under the Refugee Convention, 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’ [93].

7. On concerns relating to Rwanda’s violation of its similar prior agreement with Israel, the UK Government states it does not consider ‘the agreement Israel had with Rwanda to be comparable to the MEDP’. While it is strictly correct that they are different agreements, the UK Government fails to address the underlying problem which is the lack of guarantee that Rwanda will adhere to its obligations given its documented history of violating international agreements. While the change in legal form, from a Memorandum of Understanding to a treaty, technically places a higher level of obligation on the Government of Rwanda and provides more avenues of recourse should Rwanda fail to meet its obligations, the form of the Agreement does not solve the underlying problems. Even if disputes or failures to comply can be addressed through a complaints mechanism, arbitration by the Joint Committee, or international court or tribunal down the line, by then it would be far too late for the individuals whose lives would already be irreparably and irreversibly harmed. Given the lives at stake, this is not a risk the UK Government should take.

8. Our assessment is that even if the provisions in the new Agreement were to be implemented, and that is under an extremely generous assumption about the Government of Rwanda’s capacity to do so, there remains a very high risk of refoulement as well as other human rights violations in Rwanda. Given the present and ongoing serious risk to life and human rights of asylum seekers in Rwanda, if the UK Government goes ahead with this partnership, the UK would stand to breach several international conventions and customary law, as outlined in the Supreme Court judgment.

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

9. JCWI’s assessment is that regardless of the intentions of the Agreement, there remains present wide-ranging, structural, and serious risks to the life, wellbeing, and human rights of individuals should they be relocated to Rwanda that the Agreement cannot feasibly address, as outlined in our responses to the previous question. As we stated above, there remains a very high risk of refoulement as well as other human rights violations in Rwanda. The UK Government has not provided credible evidence that the risks raised by the Supreme Court can be adequately mitigated. The provisions in the Agreement are theoretical and untested, and there is no proven guarantee that they will strongly or effectively protect individuals sent to Rwanda.

Question three: 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?

10.                     On this we echo the Supreme Court’s assessment. Regarding enhanced monitoring, as the Supreme Court noted in its ruling: ‘The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place.’ [105] Similarly, even if failures can be addressed through a complaints mechanism, arbitration by the Joint Committee, or international court or tribunal down the line, by then it would be far too late for the individuals whose lives would already be irreparably and irreversibly harmed. Our view is that, even in the best case scenario, these mechanisms would only be able to address harms after they have occurred, and that is far from adequate in situations where a person’s life and human rights have been violated. The overriding concern remains, which is that there have not been and likely cannot be strong enough safeguards under the Rwandan system to prevent these harms from occurring in the first place.

Question four: 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?

11.                     On this we again agree with the Supreme Court’s assessment regarding Rwanda’s appeals processes. Although the Supreme Court’s comments referred to appeals to the High Court, the point still stands as regards a new appeals body in Rwanda, which is that it is: ‘completely untested, and there are grounds for concern as to its likely effectiveness.’ [105] We remind the Committee of the Supreme Court’s findings that there are deep, structural flaws within Rwanda’s judicial system and implementation of the rule of law, which would require extensive improvements.

12.                     Simply creating a new body with mixed nationality judges would do little to improve the foundational problems that the Supreme Court found, which is that given the documented lack of understanding about Rwanda’s international commitments including under the Refugee Convention, lack of judicial independence, lack of independent legal advice available to individuals, there is no guarantee that people seeking asylum will receive a fair hearing, decision, and appeal in Rwanda even under this new Agreement.

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

13.                     In principle, we believe that people seeking asylum themselves are best placed to know where they will be safest given their individual circumstances. Individuals should have the right to claim asylum in any country or territory they choose. Our legal casework shows that people who do claim asylum in the UK have strong reasons for doing so. Based on our clients’ accounts, these include: the UK having a reputation for respect for human rights; the English language which many asylum seekers speak, particularly those coming from former British colonies; and having family or community ties in the UK which is crucial for people who need support going through the gruelling asylum process. These are all strong reasons for claiming asylum in the UK specifically, and not in a third country. If individuals believe the UK is where they will find save haven from war, violence or persecution, then they should be able to claim asylum in the UK, and the UK has the responsibility to consider that claim in the UK.

14.                     It should not be up to State governments to pass asylum seekers around as though they are commodities. Unfortunately, we have seen attempts by States to take that approach, such as in the previous Dublin agreement. A European Parliament’s Committee on Civil Liberties, Justice and Home Affairs 2020 report on the implementation of the Dublin III Regulation pointed to structural flaws and the grave human impact on individuals of the arrangement, including: ‘The ineffectiveness of the Dublin Regulation primarily affects migrants who have already been traumatised in their home countries or during their journey to Europe. The months, even years, of administrative toing and froing, of insecurity, constitute a new trauma and enable human traffickers to maintain a hold on migrants, through prostitution or forced labour networks. The failure of the Dublin system and the CEAS has given rise to numerous violations of fundamental rights.’[3] We believe any form of third-country arrangements, whether Dublin or this present Rwanda Agreement, fundamentally undermines individuals’ right to seek asylum. For the global refugee protection system to work, we must be led by individuals themselves, and States must then fulfil their responsibility to protect those in need.

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

15.                     While we have outlined our various concerns with the Agreement, we would also like to raise the fact that the life, wellbeing, and human rights of individuals are already harmed even before the Agreement can be implemented, including due to the impact of the previous Memorandum of Understanding, removal notices issued for flights planned in the summer of 2022, and the news of this Agreement being signed. We have seen from the experiences of our clients that even the thought of being removed to Rwanda has caused extremely high levels of anxiety and distress, and we would like to call the Committee’s attention to these harmful impacts.

16.                     Individuals are living under a constant threat of their asylum claim not being heard in the UK and that they will be permanently relocated to Rwanda where they will likely have no family or community ties, and where their life and human rights will be at risk. This is mentally torturous in itself. One client who was issued a removal notice under the previous agreement told us: ‘The reason I came to England was that I knew I will be safe in the UK, and also, I was trapped by the smugglers. […] When I received the news [that I would be sent to Rwanda], it felt like death again to me’. It is cruel and inhumane for us to be treating people who are in dire need of safety and protection like this.

17.                     Moreover, while we have explained our concerns with the specific Agreement, we would like to raise the far more fundamental concern which is that this Agreement – or any other similar arrangement – stands to breach the UK’s international obligation and moral duty to consider asylum claims in the UK. Our legal casework and evidence show that in fact many individuals have valid reasons to claim asylum in the UK – as opposed to in another country – but would have that right unjustly taken away. As an example, one of our clients is a disabled Kurdish man from Iraq who was trafficked into the UK through Calais. After he arrived in the UK, the Home Office sought to remove him to Rwanda on 28 June 2022. He was taken off the flight following legal representations. Given the likely short time-frame that individuals will have before being sent to Rwanda, under the new Agreement our client would not have had the time to gather the crucial evidence of his disability and past torture that will support his human rights claim to stay in the UK, and instead would be sent away to Rwanda where his life may be at risk.

18.                     We strongly oppose any effort by the UK to offshore or otherwise displace its asylum responsibilities. It is imperative for the global asylum system to function, and for refugees across the world to find safe haven, that every State take responsibility to consider asylum claims and provide support to those granted protection. The UK must not shirk this responsibility, whether through partnerships with Rwanda or any other State. We urge the Committee to support the fundamental right to seek asylum in the UK, and reject this Agreement.

Aria Danaparamita, Advocacy Director at the Joint Council for the Welfare of Immigrants (JCWI)

22 December 2023