THEODORE KONSTADINIDES, PROFESSOR OF LAW AT UNIVERSITY OF ESSEX AND REBECCA AMOR, PHD RESEARCHER AND ASSISTANT LECTURER AT UNIVERSITY OF ESSEX – WRITTEN EVIDENCE (URA00012)

 

 

​​House of Lords International Agreements Committee

 

  1. The authors are academics at the Essex Law School, University of Essex.  This evidence is submitted in a personal capacity.

 

Summary

  1. In this written evidence we address some of the questions raised by the Committee. Specifically, we examine if the new Agreement addresses the issues highlighted by the Supreme Court. We evaluate the adequacy of safeguards for individuals transferred to Rwanda as stipulated in the Agreement. Additionally, we discuss the dispute resolution processes, and the provision for individuals to lodge complaints with the newly established asylum appeal body. Furthermore, we explore relevant precedents concerning offshore processing and its implications.
     
  2. This summary will highlight some of our recommendations to Parliament.
     
  3. Parliament should consider whether simply entering into a legally binding agreement is sufficient to remedy the major and systemic issues identified by the UK Supreme Court. It should also assess whether the modifications proposed by the Treaty require time to be effectively evaluated.
     
  4. We recommend that the framework outlined in the new Agreement should be established and rigorously tested before implementing the Agreement, rather than implementing it first and then testing the structures envisaged by the new Agreement.
     
  5. Considering the current risk to the principle of non-refoulement, we contend that more evidence is necessary to demonstrate the extent of Rwanda's reforms aimed at enhancing its human rights practices, including changes in treatment and cultural attitudes. Such evidence should comprise concrete, empirical data that clearly illustrates the practical and identifiable improvements brought about by these reforms.
     
  6. We also contend that more evidence is necessary to evaluate the degree to which Rwanda has put into practice and verified the safeguards essential for guaranteeing the independence of its judiciary and legal profession, particularly in handling politically sensitive cases.
     
  7. We argue that it is imperative to gain more clarity about the Government’s plan to implement the new Agreement in the UK, as well as to acquire detailed information about Rwanda’s domestic implementation legislation.
     
  8. Furthermore, it is necessary to scrutinise the new Agreement in the broader context of the additional supporting laws and operational procedures Rwanda has or must put in place. This is to ensure that the requirements of the Agreement can be effectively implemented in Rwanda in a manner consistent with the UN Human Rights Convention, or as needed to meet Parliament's own criteria for what constitutes a safe country.
     
  9.                     Given that the Agreement establishes a novel framework accompanied by new institutions to manage complaints, appeals, and dispute resolution between the UK and Rwanda, the success of this partnership and the overall asylum relocation policy hinges on extensive preparation and capacity building. We argue that this is a time-intensive process that cannot be accomplished within just a few months.
     
  10.                     Parliament faces several challenges and considerations in implementing the mechanisms of the Agreement. Key areas include assessing the independence and expertise of the Monitoring and Joint Committees, and ensuring their roles are clear and their actions transparent and accountable. For the new Appeal Body, selecting and training non-Rwandan judges in Rwandan law is vital for maintaining standards, though differences in legal systems, languages, and cultures among judges present communication and consistency challenges. Last, in managing future UK-Rwanda disputes, the Agreement favours diplomatic resolution with arbitration as a last resort, emphasising negotiation and dialogue. However, the success of this approach will depend on both parties' adherence to and respect for the agreed procedures and arbitration results.

 

  1.                     It is essential for Parliament to secure detailed information from the Government regarding the future of existing structures and the management of disputes that might arise after the termination of the Agreement. This includes addressing potential conflicts between the UK and Rwanda, as well as individual complaints.
     
  2.                     We suggest that Parliament learn from the outcomes, both successful and unsuccessful, of similar offshore transfer policies implemented in other European countries or within the Commonwealth. This could involve exchanging best practices and insights.
     

Overall assessment of whether the changes to the asylum partnership arrangements made by the new Agreement are likely to meet the concerns raised by the Supreme Court

  1.                     We are not confident that the changes to the asylum partnership arrangements made by the new Agreement are likely to meet the concerns raised by the Supreme Court at least in the short foreseeable future.
     
  2.                     The UK Supreme Court’s ruling in AAA & Others v Home Secretary raised serious concerns about Rwanda’s current status as a safe country for asylum seekers. The Supreme Court, in its decision on 15 November 2023, clearly stated that Rwanda, at that time, did not qualify as a safe country.

 

  1.                     For the sake of clarity:

A safe country is defined as being a place to which a person may be removed in compliance with all of the UK’s international obligations that are relevant to the treatment of persons removed there, and in particular where a removed individual will not be removed or sent to another country in contravention of any international law, and in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligations under international law.

(See inter alia the Safety of Rwanda (Asylum and Immigration) Bill ECHR Memorandum)

  1.                     Taking this definition as a reference point, let us turn briefly to the Supreme Court’s ruling that underscored significant and systemic flaws in Rwanda’s procedures and institutions for processing asylum claims (substantial grounds). The judgment was based on a factual matter of vital importance: the current risk of inhuman and degrading treatment which is determinant to whether Rwanda is a safe country. The Supreme Court emphasised that the current risk is high.

 

  1.                     Parliament should thus reflect on the concerns raised by the Supreme Court, particularly in relation to the timing of the new Agreement. Essentially, the immediate question is not solely about the sufficiency of the guarantees provided by the Agreement, but rather if the signing of a new treaty, as occurred on 5 December 2023, can adequately ensure Rwanda’s safety.

 

  1.                     As the Bar Council stressed recently:

 

‘the fact that Rwanda may have taken on new treaty obligations does not necessarily mean that the risk will be removed, and certainly does not mean that those risks have already been removed….The UK’s obligation under international law is to ensure that asylum seekers are only ever sent to countries that are actually safe (both now and in the future).’

 

  1.                     Therefore, additional to the content of the Agreement, which is of course vital for the future success of the scheme including the protection of the rights of the people sent to Rwanda and the effective resolution of any disputes, Parliament shall also consider the Supreme Court’s evaluation of Rwanda's present commitment and ability to fulfil its responsibilities, particularly concerning the safe and fair handling of asylum claims.

 

  1.                     The Supreme Court, in AAA, drew a distinction between Rwandan law and practice. Guided by the United Nations High Commissioner for Refugees (UNHCR), the Supreme Court noted that Rwandan law, as written, complies with international standards, and so was not an area of concern. However, it was in the practical and operational application of Rwandan law that UNHCR identified inadequacies. From this perspective, the Supreme Court highlighted numerous concerns, which can be regarded as significant red flags.

 

Indicatively in paragraph 93 of the judgment the Supreme Court stressed that:

[…] the defects in past and current practice […] are important factors in assessing future risk.

AND 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.

And then in para 103 the Supreme Court highlighted that:

[…] “risk” is judged in the light of what has happened in the past, and in the light of the situation as it currently exists, as well as in the light of what may be promised for the future.

Finally in para 104 the Supreme Court emphasised again that:

The 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.

Indeed, the Court noted at paragraph 84 that the Rwandan officials in negotiating the terms of the Migration and Economic Development Partnership ‘indicated that the contemplated arrangements might not be straightforward to implement in practice’.

  1.                     Let us explore in more detail the specific nature of these concerns.
     
  2.                     In particular, the UK Supreme Court highlighted serious concerns about Rwanda’s poor human rights record which are deeply systemic. It mentioned that in 2021, the UK government itself criticised Rwanda for extrajudicial killings, deaths in custody, enforced disappearances and torture. The Supreme Court also pointed to the Directorate General of Immigration in Rwanda, noting a pervasive culture that either shows a lack of understanding or, in more severe cases, a deliberate disregard for Rwanda’s obligations under the Refugee Convention. Additionally, the Supreme Court pointed to evidence from the UN indicating a bias against asylum seekers from the Middle East and Afghanistan within the Rwandan asylum system. Last, the Supreme Court made remarks about “the risk that judges and lawyers will not act independently of the Rwandan government in politically sensitive cases, and a completely untested right of appeal to the Rwandan High Court.”
     
  3.                     The Supreme Court’s conclusions are not unique in this context. The Supreme Court’s conclusions align with those of the European Court of Human Rights in the NSK case on 14 June 2022. This judgment emphasised that the decision to deem Rwanda a safe third country was either irrational or based on inadequate investigation, raising ‘serious triable issues’. The evidence provided by the UNHCR helped the Strasbourg Court to issue an urgent interim measure, pending the Supreme Court’s initial review of these issues.
     
  4.                     Considering the points mentioned, it is improbable that modifications to the asylum partnership arrangements brought about by a new Agreement will address the concerns highlighted by the Supreme Court in the immediate or short term.
     
  5.                     Related to the current deficiencies in Rwanda's asylum system, Parliament should focus on three key interconnected issues regarding the practical implementation of the UK-Rwanda Treaty. These issues are crucial for the evaluation and application of the new treaty or any future bilateral treaty of this kind.

i)    Diplomatic Assurances and Protection of Asylum Seekers

ii)   Adherence to international & national legal obligations

iii)   Respect for the Right to Effective Judicial Protection

 

  1.                     i) Diplomatic Assurances and Protection of Asylum Seekers: It is important here to note the distinction between the decision-makers in Rwanda who are making the assurances on the one hand, and, on the other hand, the individuals who are required to comply with the new processes and procedures to be implemented under the new Agreement.
     
  2.                     Parliament should scrutinise the credibility of the diplomatic assurances provided by Rwanda concerning the protection of asylum seekers transferred under the new Agreement. In light of the Supreme Court’s judgment in AAA, it is crucial to evaluate whether Rwanda’s renewed assurances are reliable and whether they align with the fundamental principle of non-refoulement. The Supreme Court emphasised the need for a practical and factual evaluation of Rwanda’s asylum procedures to ensure that they offer sufficient guarantees against the risk of refoulement. New empirical evidence is therefore essential before moving forward with the implementation of the Treaty.
     
  3.                     The new treaty is not therefore best placed to adequately address systemic or generalised deficiencies in Rwanda as well as addressing risks of Rwanda breaching the fundamental rights of relocated asylum seekers. Parliament needs at the first instance to be satisfied that the Rwandan authorities have already put in place and expedited effective measures to protect asylum seekers from ill-treatment and improper determination of their asylum claims. In any event, we propose that the structures envisaged by the new Agreement should be first put in place and tested prior to the implementation of the Agreement rather than the other way round.
     
  4.                     ii) Adherence to international & national legal obligations: The second issue relates to how the new Agreement aligns with international law principles, particularly the principle of non-refoulement. The Supreme Court highlighted the importance of this principle, which is a cornerstone of international human rights, refugee, and customary law, and is also embedded in various international treaties ratified by the UK (such as the 1951 Refugee Convention, the 1984 Convention against Torture, and the European Convention on Human Rights (ECHR)). This principle has been incorporated into UK domestic law through statutes like the Asylum and Immigration Appeals Act (1993), the Nationality, Immigration and Asylum Act (2002), and the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
     
  5.                     Parliament must assess whether the new Agreement adheres to these international and national legal obligations, ensuring that asylum seekers receive a proper evaluation of their claims and have their rights respected.
     
  6.                     Article 3(1) of the new Agreement requires decisions to be made on a non-discriminatory basis without regard to nationality. This addresses the findings of the UNHCR reports that Rwanda rejected all asylum claims from Afghan, Syrian, and Yemeni nationals between 2020 and 2022, a stark contrast to the UK, where a significant percentage of such claims were granted. This high rejection rate in Rwanda is attributed to the belief that people from the Middle East and Afghanistan should seek asylum in their own regions.
     
  7.                     Additionally, Article 10(3) of the new treaty addresses the non-refoulement concern stating that nobody may be removed from Rwanda, except to the UK, even if their asylum application is unsuccessful.
     
  8.                     Landmark Chambers has listed additional grounds that are not covered in the new Agreement. In a recent briefing, Alex Goodman KC, Miranda Butler and Joe Thomas explain:

 

There is nothing in the Treaty to provide guarantees that the issues identified by the Supreme Court concerning structural issues in Rwanda around its approach to human rights will be addressed. [...] Once a person has been relocated to Rwanda, that person is said to have the “rights and treatment” set out Part 1A of Annex A of the Treaty. The Treaty lists a series of practical rights concerning accommodation, food, education etc. However, there is nothing in the Treaty about Rwanda committing itself to asylum seekers enjoying the right of free speech, political freedoms, religious freedoms or any other rights under the UN Human Rights Convention or as required to fulfil Parliament’s own definition as to what is a safe country.

 

  1.                     Indeed, by way of example, the new Agreement confirms at Part 3 of Annex A that arrangements shall be made for a Relocated Individual to lodge any complaint relating to the ‘accommodation and the delivery of other support’ with the Government of Rwanda as they are responsible for handling those complaints. Delivery of other support would include references in the new Agreement to the provision of food or a food allowance in Part 1 of Annex A. It should be noted that refugees protesting cuts to food rations is a form of complaint, and a course of action which Refugees in Rwanda took in 2018. The Rwandan police fired live ammunition at those refugees, as noted by the Supreme Court in paragraph 76 of their judgment. Further, 12 refugees were killed during this incident as noted at paragraph 98 of the Report of the Office of the UN High Commissioner for Human Rights prepared for the 2021 Universal Periodic Review for Rwanda. In so protesting, these refugees had the right to life, freedom of expression, and freedom of association. In respect of Rwanda, these rights are contained in the International Covenant on Civil and Political Rights, which Rwanda ratified in 1975.
     
  2.                     It is also of some concern that this Agreement, whilst confirming that it is subject to international law, does not make specific reference to the UN Convention on the Rights of the Child given the particular vulnerabilities of children and their inclusion in what is already noted as being a ‘vulnerable’ category of individuals in Article 2(1) of the Agreement.
     
  3.                     The treatment of children under the Agreement raises some areas of concern. The definition of Relocated Individual states that it includes ‘any Child’. Child is defined as including any person under 18 and any person who the UK Court has ordered must be treated as a child. Article 3(4) of the Agreement rightly identifies that unaccompanied children shall not be relocated to Rwanda. However, in the same paragraph, the Agreement indicates that pending a decision by the UK Court on whether that individual is, or is to be treated as being, under 18, that individual will already have been relocated to Rwanda. Thus, upon determination of this issue in the UK Court, the Child would then be returned to the UK. This appears to provide for the situation where a Child has already been relocated to Rwanda and then either raises the question of their age or was initially sent to Rwanda in error.
     
  4.                     Some careful consideration needs to be given to the contradictions implicit in the approach here. The procedure and the extent of the UK’s obligations to clarify the age of any suspected child before relocating them to Rwanda needs to be clarified. It is important to note the rule of law principles of access to justice and the right to a fair trial, deeply entrenched in our legal system, and their relationship to situations in which the individual, the status of whom is being considered, should not be absent from the Court proceedings during that time. In this, despite the Agreement providing for the establishment of video conferencing, for example, in Rwanda to accommodate hearings before a UK Court, it is unlikely that such an approach could be said to be in the best interests of the child. It is therefore important to establish the approach to be taken in the event that there are grounds to believe that an individual may be under 18.
     
  5.                     As such, the new Agreement needs to be examined within the wider context of what other supporting laws and operational procedures would also be required in order to ensure that the requirements in the Agreement can operate in practice.

 

  1.                     iii) Right to Effective Judicial Protection: Beyond what the new Agreement envisages in relation to asylum appeals (which we will touch upon below), this also entails assessing the extent of authority of the Rwandan and UK courts to protect the rights of asylum seekers under the new Agreement. It is important to determine whether the Agreement allows for adequate judicial oversight and the ability for national courts to intervene effectively in cases where the rights of asylum seekers might be at risk. The Supreme Court’s decision in AAA highlighted the necessity for such judicial protection in the UK under section 6 of the Human Rights Act, which prohibits public authorities from acting in ways incompatible with ECHR rights.
     
  2.                     The newly introduced Safety of Rwanda Bill, termed as emergency legislation by the Prime Minister, plays a crucial role in shaping how the international agreement with Rwanda will be implemented within the UK, using domestic law. This legislation appears to compel decision-makers (including courts) to treat Rwanda as safe, potentially disregarding the actual conditions. It does this by partially overriding the UK’s international law obligations and seemingly affecting the rule of law and the separation of powers within the UK’s uncodified constitution. Although our inquiry focuses on the Agreement rather than the domestic implementing legislation, we acknowledge the problematic nature of this Bill especially with regard to effective judicial protection in the UK.
     
  3.                     It is noteworthy that the UK Government's eagerness to advance this legislation has not been reciprocated by Rwanda. Instead news reports suggest Rwanda may withdraw from the deal if the UK’s legislation contradicts international law. Currently, there seems to be no implementation legislation in Rwanda that implements the Agreement or addresses concerns regarding human rights safeguards, effective judicial protection etc. Even though Rwanda operates under a ‘monist’ system, where international law is generally considered part of national law without needing separate enactment, there may still be a need for legislative action for provisions that domestic courts do not automatically recognise as part of domestic law.

 

  1.                     We, therefore, recommend that Parliament request additional information from the Government concerning the current legal landscape in Rwanda. This information is crucial to demonstrate not only Rwanda’s institutional readiness to meet the UK’s high standards but also its overall legal preparedness. It will help assess the protection Rwanda can offer to relocated individuals and its capability to handle the implementation of the new appeal system proposed by the Agreement.

 

Comment on the transition from a Memorandum of Understanding to a Treaty

  1.                     The protection as set out in the Agreement appears robust at first glance. Signing an Agreement / a treaty to substitute the previous Memorandum of Understanding (MoU) is also a positive development. As noted in previously submitted evidence to the Committee, the term ‘Memorandum’ is used in international law to denote a less formal or binding international instrument. The MoU between the UK and Rwanda was not legally binding, as stated in its own wording (Article 2.2).              

For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do 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.

  1.                     This non-binding nature means there were no enforceable obligations or consequences for either party if they breached their assurances.
     
  2.                     Having said that, As remarked in previously submitted evidence to the Committee, an MoU is capable of generating some ‘effects’.
     
  3.                     For instance, the case of NSK (Iraq) v Home Secretary (2022/0090) offers insights regarding the reliability of assurances given in a MoU in assessing Rwanda’s compliance with the agreed arrangements.
     
  4.                     This case involved a judicial review application that contested the legality of transferring an asylum seeker to Rwanda under the Home Secretary's policy. The applicant sought an interim injunction to stop his removal to Rwanda until the lawfulness of the Home Secretary's policy was determined. However, the Court of Appeal denied this appeal, ruling in favour of the Home Secretary. The decision was based on the rationale that the importance of implementing her policy outweighed the potential issues the claimant might face in Rwanda. In reaching this conclusion, the judge examined evidence related to the MoU and note verbal between the UK and Rwandan Governments.
     
  5.                     The Supreme Court, in its assessment, acknowledged that the Court of Appeal had given considerable weight to the assurances made in the UK-Rwanda MoU based on the evidence it had reviewed, particularly when it refused permission for the appeal. However, the Supreme Court raised a critical question: if the Home Secretary’s policy were found to be unlawful, what would be the fate of the applicant in the NSK case? Would he be returned to the UK? To address this question, the Supreme Court referred to the provisions of Article 11 of the MoU, which provided specific assurances concerning such situations.

Following a request made by the United Kingdom, Rwanda will take all reasonable steps in accordance with international human rights standards to make a Relocated Individual available for return to the United Kingdom should the United Kingdom be legally obliged to facilitate that person’s return.

  1.                     To cut a long story short, the Supreme Court expected, therefore, Rwanda to comply with the MoU despite its non-binding status. It therefore refused on 14 June 2022 the applicant permission to appeal the case.
     
  2.                     This interpretation challenges the conventional view of MoUs as soft law instruments, suggesting that MoUs might possess some legal substance.
     
  3.                     Indeed, the MoU with Rwanda provided in Article 9.1.3 that if a relocated individual’s claim for asylum is refused, that person will have access to independent and impartial due process of appeal in accordance with Rwandan laws. Also in Article 29.3 the UK and Rwanda confirmed that they have a system in place through which individuals may seek redress or challenge a decision not to disclose information to the individual.
     
  4.                     However, due to its nature as a soft law instrument, the MoU left open questions about whether the promises and assurances in the MoU will be upheld. Hence, the European Court of Human Rights decided in June 2022 to grant an urgent interim measure in the case NSK v UK (application no.28774/22) until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial review proceedings. The European Court highlighted that there was an ‘absence of any legally enforceable mechanism for the applicant’s return to the UK in the event of a successful merits challenge before the domestic courts’.
     
  5.                     As Arabella Lang of the PLP put it: ‘If people are mistreated in Rwanda or do not have access to a fair immigration process, legally there is nothing the UK can do to put things right. There is no dispute resolution process and no recourse to international courts.’
     
  6.                     A treaty, on the other hand, governed by international law provides more robust legal protection for the rights of individuals involved, aligning with the UK’s international law obligations and allowing individuals to rely on these protections. A treaty leaves no doubt about whether failure to abide with its terms constitutes a violation of a legal obligation. Especially regarding the consequences of breaches, a treaty imposes legal obligations, with clear outcomes for breaches, and is subject to international law and state responsibility rules.

 

  1.                     Furthermore, from an internal constitutional point of view, a legally binding treaty necessitates parliamentary scrutiny under the Constitutional Reform and Governance Act 2010 (CRaG). This ensures a more transparent and accountable process, potentially leading to a more thorough and public examination of the agreement’s implications.

 

  1.                     But, as already mentioned, the problem remains: Parliament is currently being invited to approve a Treaty while at the same time considering the Safety of Rwanda Bill which appears to be incompatible not only with well-established understandings of the separation of powers between the legislature and the judiciary, but with a number of the UK's international obligations, including under the ECHR. This situation presents a complicated interplay between the treaty and the Bill, suggesting the possibility that the Bill might have retrospective effect if the treaty is ratified first.
     
  2.                     As such, provided that Rwanda meets the safe country criteria, converting the UK-Rwanda MoU into a legally binding treaty provides stronger, more enforceable protections for the rights of individuals affected by the asylum policy. It also aligns the agreement more closely with the UK’s international law obligations (provided that the UK is committed to honour them) and ensures more rigorous parliamentary scrutiny, enhancing transparency and accountability.

 

  1.                     Whether an MoU or a Treaty, Parliament shall place particular emphasis on legal compliance, effective assurances, and the need for careful consideration of legal and human rights implications, effective monitoring mechanisms, and the importance of genuine cooperation between the two states. Lord Anderson's ‘Deportation with Assurances’ report provides valuable insights that could be relevant to the UK-Rwanda asylum policy. His report acknowledges the extensive efforts made in the UK to establish a rights-compliant ‘deportations with assurances’ policy, with arrangements in place with countries like Algeria, Ethiopia, Jordan, Lebanon, and Morocco. However, the practical challenges highlighted in the report raise questions about the overall effectiveness of such policies.
     

Monitoring and Review Process under the Agreement

  1.                     The Agreement provides for a relatively robust monitoring and review process. For this to be effective, however, it is crucial for Rwanda to i) address and rectify the serious and systemic flaws in its procedures and institutions we highlighted earlier and ii) to set up and test the proposed monitoring and review process in practice, which is far from being straightforward.

 

  1.                     In particular, the Agreement outlines the formation and maintenance of a Monitoring Committee, to be kept operational throughout the term of the Agreement, including any extensions. This Committee, comprised of independent persons, is tasked with overseeing the entire relocation process.

 

  1.                     This encompasses the initial screening and decision-making procedures in both the UK and Rwanda. The Committee’s responsibilities extend to ensuring compliance with the Agreement, providing reports on the conditions and treatment of relocated asylum seekers, and suggesting potential areas for improvement. In fulfilling these duties, the Committee is granted full access to all necessary data and inspection resources and is responsible for managing a system that allows for confidential complaints from relocated individuals. Additionally, the Committee’s operations are required to comply with both UK and Rwandan domestic laws, including those relating to data protection.

 

  1.                     This structure, while positive, largely mirrors the provisions of paragraph 15 of the MoU. In the MoU, the UK and Rwanda agreed to establish a monitoring committee with a similar reporting mandate, focusing on the processing of asylum claims by Rwandan authorities. The new Agreement builds upon this with a more detailed framework, particularly in terms of the Committee’s autonomy in setting its terms of reference, the provision for enhanced initial monitoring, and the establishment of both a support team and a complaints system. An interesting difference between the Agreement and the MoU is that the MoU allowed for the Committee’s ability to make unannounced visits to various locations, a feature not explicitly stated in the Agreement.

 

  1.                     Both the Agreement and the MoU also establish a Joint Committee, composed of representatives from both Parties and co-chaired by a UK and Rwanda representative. This Committee, under the Agreement, is empowered to set its own terms of reference. These terms must be comprehensive, clearly defining the scope, powers, and responsibilities of the Committee, thereby enabling effective monitoring, review, and recommendation processes. This is vital, as the Joint Committee also records all complaints made by Relocated Individuals and their outcomes.

 

  1.                     While the overall structure and purpose of the Joint Committee remain consistent in both the Agreement and the MoU, the Agreement introduces more specific provisions regarding the frequency of meetings and the option for conducting them remotely. However, the efficacy of these meetings will rely not only on their frequency, but also on the quality of discussions, the level of detail in reviewing the implementation, and the responsiveness to the findings.

 

  1.                     Furthermore, the independence and expertise of the members of both the Monitoring Committee and the Joint Committee are crucial. Their ability to operate without bias or undue influence from either the UK or Rwanda can significantly impact the objectivity and effectiveness of their oversight. Additionally, the expertise of these members in international asylum and human rights law, as well as their understanding of the practical aspects of asylum processes, will be vital. Again, we wish to emphasise that the effectiveness of the policy depends on intense preparation and capacity building. This a time-consuming process and cannot be achieved in a few months.

 

  1.                     It is also of note that the monitoring committee is able to accept confidential complaints from Relocated Individuals. However, the new Agreement does not appear to provide detail on the process through which any decision of the committees can be judicially reviewed or challenged. The dispute resolution procedure under Article 22 appears to relate solely to a dispute between the parties, as opposed to an issue raised by an individual. The first instance and appeals procedure in Annex B appears to relate solely to decisions in respect of the substantive asylum claim, and not an action or decision taken by one of the committees established under the Agreement. As the committees are comprised of individuals from both States, it is essential to identify the legal processes to be used to review their decisions which do not fall under the other provisions of the Agreement. In particular, clarification is required on whether these decisions are to be reviewed pursuant to Rwandan or UK law whilst also bearing in mind the legal principles and impact of sovereignty of States.

 

  1.                     In conclusion, while the Agreement establishes a structured and seemingly robust monitoring and review process, its effectiveness will largely depend on the independence, expertise, and proactive engagement of the Committees. The comprehensiveness and clarity of their terms of reference, the transparency and accountability of the Parties, and the effective implementation of recommendations and feedback mechanisms.

 

The Appeal Process available to relocated individuals under the Agreement

  1.                     Article 4 of Annex B of the Agreement (and Article 9 of the previous MoU) addressed asylum appeals, each marked by its own scope and level of detail, with the Agreement again introducing a more comprehensive and structured process.

 

  1.                     The Agreement, under Article 4 of Annex B, establishes a detailed process for appeal of refusals of asylum or humanitarian protection claims. This includes provisions for written submissions, additional evidence, and transcription or recording of hearings, ensuring a meticulous record of proceedings. The hearings are tailored to consider each appellant's personal circumstances, such as cultural, gender, and vulnerability factors. It also provides for access to interpreters and legal representation, highlighting the fairness and thoroughness of the process. The decisions made in these appeals are rooted in evidence and adhere to the principles of the Refugee Convention and humanitarian protection law.

 

  1.                     In terms of composition, the Agreement details the structure and functioning of an Appeal Body, setting up a UK-Rwanda co-presidency and a diverse panel of judges. The integration of international judges, along with the consultation of independent legal experts in the first year, introduces a mix of Rwandan and international legal perspectives. This diversity, while enhancing the credibility and alignment with international standards, raises potential challenges in harmonising different legal principles and practices. We believe that ensuring a common understanding of the applicable legal frameworks among judges of varying backgrounds will be critical.
     
  2.                     Furthermore, training provided for non-Rwandan judges on Rwandan law and judicial practice, along with encouragement for judges to offer feedback, aims to maintain uniform standards. However, ensuring consistent application of this training across diverse legal backgrounds poses its own set of challenges. Differences in language and legal culture among judges from various nationalities might create barriers to effective communication and understanding. Managing potential biases or perceptions of undue influence, depending on the judges' nationalities and backgrounds, will also be crucial for maintaining the integrity of the appeals process.
     
  3.                     Coordinating a panel of judges from different countries, particularly for in-person hearings, introduces logistical and administrative complexities, potentially leading to delays. Moreover, ensuring that the decisions made by this body are accepted and implemented within the Rwandan legal system could present challenges, especially if these decisions conflict with national legal practices.

 

  1.                     In conclusion, the Agreement’s Annex B Article 4, with its detailed approach and inclusion of international judges and experts, underscores a commitment to a robust and legally thorough process. However, it also introduces several challenges related to integrating diverse legal systems, managing cultural and language differences, training consistency, potential biases, and logistical complexities. Addressing these effectively will require careful planning and management to ensure the effectiveness of the asylum appeals process.

 

Dispute Settlement between the UK and Rwanda under the Agreement

 

  1.                     The dispute settlement mechanism in the Agreement is characterised by a detailed and structured approach, delineating specific steps ranging from consultation between the UK and Rwanda to arbitration, complete with defined timelines and arbitration procedures. This mechanism adopts a gradual approach, initially engaging the Joint Committee for resolution, then escalating to political-level consultations, and ultimately proceeding to arbitration if needed. This method stands in contrast to the MoU, which solely focused on internal dispute resolution and expressly precluded the use of external dispute resolution bodies. This key difference suggests that the Agreement's mechanism is more formal and potentially more enforceable compared to the MoU.

 

  1.                     Under Article 22(3) of the Agreement, if a dispute remains unresolved between the UK and Rwanda at the political level within a 21-working-day period, it is referred to arbitration in accordance with the Permanent Court of Arbitration Rules 2012. This step introduces a formal and legal aspect to the dispute resolution process, potentially making it more authoritative and binding. The arbitration process is designed to involve three arbitrators: each Party nominates one, and a chairperson is selected through mutual agreement. If the Parties cannot agree on a chairperson, or if a Party fails to nominate an arbitrator, the Secretary-General of the Permanent Court of Arbitration intervenes, ensuring an impartial selection process for the arbitration tribunal.
     
  2.                     The option of arbitration as a last resort highlights a preference for resolving disputes between the UK and Rwanda through diplomatic and political means.This approach indicates an emphasis on negotiation and dialogue before engaging in legal arbitration. However, this process could potentially be lengthy, particularly during the political consultation phase. Additionally, the effectiveness of this dispute resolution mechanism heavily depends on the willingness and cooperation of the Parties to adhere to the agreed process and to respect the outcomes of the arbitration.

 

  1.                     To summarise, the dispute settlement mechanism in the Agreement offers a comprehensive approach to handling disputes compared to the MoU. However, its success is contingent upon the timely and collaborative engagement of the Parties involved in future disputes.

 

  1.                     A final point relates to Article 21 of the UK-Rwanda Agreement which does not align with a typical sunset clause. Rather than setting a fixed time limit (like Article 23), the clause implies that any relocations made up to the termination date will remain binding until the end of the process for each individual involved. Article 21 is therefore not a sunset clause but a reflection of a standard principle in treaty law, stating that obligations in force up to the termination of a treaty remain valid despite denunciation.
     
  2.                     Parliament should seek detailed explanations from the Government about whether the structures established by the Agreement, including those for dispute settlement, will stay operational until both parties have met all their obligations. It is unclear if disputes that arise after termination are covered under this framework and whether there will be a balanced approach to handling disputes between the UK and Rwanda and individual complaints. The duration of the arbitral tribunal’s (or other mechanisms’) jurisdiction will influence the continuation of any UK-Rwanda dispute resolution processes. However, further clarification from the Government is necessary in this regard. Additionally, clear guidance is needed on how individual complaints will be managed in such a scenario.

 

Beyond the Agreement: Jurisdiction and potential claims against the UK before the European Court of Human Rights

 

  1.                     In respect of international repercussions, it should be noted that any attempt to disapply the HRA 1998 does not remove the obligations of the UK at international level under the ECHR, which provides a right of individual application in respect of human rights standards for everyone within the jurisdiction of the State.

 

  1.                     Whilst jurisdiction is typically restricted to territorial boundaries, the European Court of Human Rights (ECtHR) has previously found that this is not a requirement, and jurisdictional control can extend beyond the State’s territory (Al-Skeini and others v United Kingdom, (App. 55721/07), 7 July 2011 [GC]). Extraterritorial jurisdiction has been found where there are exceptional circumstances, and in determining whether extraterritorial jurisdiction applies, the ECtHR will pay close attention to the particular facts of the case.

 

  1.                     In Al-Skeini and others v United Kingdom the ECtHR considered some of the factors which may give rise to a finding of extraterritorial jurisdiction. Such factors include:
    1. The acts of diplomatic or consular agents who exert authority and control over others when present on foreign territories under provisions of international law (paragraph 134).
    2. Where the Contracting State exercises all or some of the public powers ordinarily exercised by the hosting State in circumstances where it is with the consent, invitation or acquiescence of that State (paragraph 135). This includes situations where there is an agreement between the States that the Contracting State carry out executive or judicial functions, and in the case of breaches of the ECHR, the Contracting State may be liable for these where such breaches are attributable to the State (paragraph 135).
  2.                     In light of the above, the Agreement as drafted may lead to the argument that the Agreement creates an ongoing and continuous legal relationship between the Parties in such a manner that the UK retains jurisdictional control over Relocated Individuals. In particular:
    1. Article 11(1) provides that the UK can request that any Relocated Individual can be returned to them, and so is an indication of the UK’s continuing responsibilities to those individuals.
    2. Article 14 of the Agreement provides for the creation of an obligation on the UK, via the Joint Committee and Monitoring Committee, to inspect specific locations (such as accommodation) as well as confirming that the UK has an unfettered access to various documentation, including oral, visual, electronic of documentary forms of Records created by Rwanda in the processing of the Relocated Individuals and their related claims. Article 14 (2) also requires both the UK and Rwanda to deploy ‘a liaison officer in their respective diplomatic missions for better coordination of this Agreement’. This creates an avenue for representatives of the UK to monitor and ensure the implementation of the terms of the Agreement. Further, Article 22 provides for the dispute resolution procedure which can be engaged on grounds relating to the implementation of the Agreement.
    3. As already noted, Article 16 provides for the creation of a Joint Committee to be comprised of representatives of the UK and Rwanda. The Joint Committee is responsible for monitoring and reviewing the implementation and application of the Agreement. Whilst the recommendations they make may be non-binding on the other Party, this would not remove the UK’s responsibilities under the ECHR, and may indeed provide the avenue through which the UK will be made aware of any potential breaches of human rights standards.
    4. Article 19 provides that Rwanda and the UK ‘shall make arrangements for the United Kingdom to resettle a portion of Rwanda’s most vulnerable refugees in the United Kingdom’. It is worth noting that the Agreement is silent on the proportion to be resettled, and the matters which are to determine selection of those individuals. However, despite such uncertainty, as a matter of legal interpretation “shall” is a mandatory term. Article 5 does not provide detail on the extent of the initial screening, nor the issues to be addressed during that process, although the implication in Article 5(2) is that a distinction is drawn between mandatory information to be obtained (such as name, sex, date of birth etc) and discretionary information (such as special needs, health issues, whether they are a victim of trafficking etc). This approach, combined with the practical possibilities that health issues, special needs etc may only come to light over time, creates a possibility that the most vulnerable refugees will include those who were originally sent by the UK to Rwanda. In such a case, Article 5 provides a legal avenue under which the UK retains its obligations in the specific context of these individuals.
       
  3.                     It should also be noted that considerations of jurisdiction do not govern the actions of States who are not party to the ECHR and do not require Contracting States to impose any such Convention standards on those States. As such, the ECtHR will have no jurisdiction over Rwanda.
  4.                     It is a well-established principle of the ECtHR that Article 1 of the ECHR imposes both positive and negative obligations on Contracting States. Article 1 ECHR states the obligation of Contracting States to ‘secure to everyone within their jurisdiction the rights and freedoms in Section I’ of the ECHR. In light of the above, the Agreement does not absolve the UK of its international legal obligations under the ECHR and may even provide the grounds for establishing extraterritorial jurisdiction, especially considering the living instrument approach taken by the ECtHR. As such, the UK may be found to be under a duty of international law to respect, protect and fulfil the rights under the ECHR of any individual it relocates to Rwanda. In order to discharge this duty, the UK will need to ensure that it has processes and procedures in place that adequately provide for the implementation and monitoring of human rights in Rwanda.
  5.                     As such, the UK should give careful consideration to whether the current procedures, processes and infrastructures in place, provide sufficient safeguards for the UK to be able to monitor the whereabouts and treatment of the Relocated Individuals who are also to be guaranteed free movement under Article 10 and Annex B, Article 13 of the Agreement. This is especially the case in light of the oral evidence before the Committee on 18 December 2023, in which Lord Anderson highlighted the difficulties experienced in practice in maintaining monitoring and the inability of the Embassy in Algeria in 2009 to be able to locate any of the 9 individuals sent there. In carrying out their analysis, the UK should carefully consider whether those safeguards are sufficient to meet the obligations placed upon them under the ECHR.

 

Lessons from Australia’s offshore transfer policies
 

  1.                     We recommend that Parliament draws some lessons from the success or failure of comparable offshore transfer policies and the extent to which the Government has exchanged good practice from other jurisdictions. For instance, instead of pointing to other countries like Denmark who are in talks with Rwanda about putting in place a similar arrangement, there are important lessons one can draw from tested offshore transfers elsewhere including Australia’s Papua New Guinea and Nauru transfer schemes. Admittedly these schemes are based on a different legal framework (for instance it was the sending country that processed applications and not the receiving country which lacked the capacity to do so).

 

  1.                     In response to MP Debbie Abrahams’ question on 12 December 2023, regarding whether Australia’s offshoring of detention centres is considered a gold standard, the Home Secretary stated, ‘The hon. Lady raises the case of Australia. It had 55,000 illegal migrations by boats and that has trended pretty much down to zero—deterrence works.’

 

  1.                     However, Madeline Gleeson’s (University of New South Wales) evidence to the Home Affairs Committee in 2020 is illuminating regarding the physical and mental health issues experienced by relocated individuals offshore. Gleeson stresses that it is alarming that any country might consider emulating Australia's approach. She mentioned that this policy failed to meet its intended goals and noted that the number of people arriving by boat was previously 5,000-6,000 per year, which increased to 25,000 the year offshore processing was introduced. Gleeson also asserted that the legal and humanitarian issues the policy raises should be a significant concern, especially for countries that are signatories to international conventions such as the UK. She highlights that any state that views itself as a democratic society committed to basic decency should be particularly cautious. The real deterrent seems to be the knowledge that attempting the journey is futile but there is no concrete evidence (as it is the case with the Rwanda scheme) supporting the effectiveness of these measures, as they have not been individually scrutinised.

 

  1.                     In addition, further potential lessons may be drawn from the Australian experience in terms of domestic and international legal repercussions of implementing offshore processing of asylum claims.

 

  1.                     In relation to domestic repercussions, Australia faced a class action suit brought against them by the detainees in the offshore detention centres. In 2017, the suit was settled out of court in the sum of 70 million Australian dollars plus costs. Whilst there may be potential limitations under UK tort law to the extent to which a public authority can be held to owe a duty of care, such limitations do not apply to the Human Rights Act (HRA) 1998 which requires a public authority to act in a way which is compatible with human rights. Further, a claim under the HRA 1998 can result in an award of damages. Despite recent attempts of the Government in the Bill (discussed above) to disapply the HRA 1998 in the context of determining whether Rwanda is a safe country, this does not prevent the application of the HRA 1998 for those who are victims of breaches of the Convention Rights noted in Schedule 1 of the HRA 1998. This is of particular importance in light of the potential for a finding of extraterritorial jurisdiction noted above.
     
  2.                     Australia also faced an initial enquiry by the International Criminal Court (ICC), the outcome of which was published in an open letter. The ICC had been asked to assess the extent to which Australia was committing a crime against humanity, pursuant to Article 7 of the Rome Statute. Here, the ICC confirmed that in relation to the crime of deportation or forced transfer of a population under Article 7(1)(d) of the Rome Statute, the element of the crime of being ‘lawfully present’ in the area from which they were deported was not satisfied on the facts. In the Australian context, the individuals were being intercepted in international or territorial waters. The ICC in the open letter does not provide detail of its reasoning. However, the letter does confirm that the ICC made this determination having regard to national and international legal standards, including international human rights law, refugee law, and the principles in the UN Convention on the Law of the Sea. Under the new Agreement, however, the UK will be accepting and carrying out initial screening of asylum seekers on UK soil and so, factually, this situation is different.
     
  3.                     We are not experts in international criminal law, but given that the UK is a signatory to the Rome Statute, and Rwanda is not, it would be prudent for further clarification on the scope of international criminal law in this context to be obtained from both academics and practitioners in this field.
     
  4.                     As noted by Madeline Gleeson in the oral evidence given to the Home Affairs Committee on 11 November 2020, Asylum procedures which engage a ‘fair and efficient process’ will not act as a deterrent. Should Rwanda meet the expectations of the Government in terms of the practical and operational measures to be implemented as per the Agreement so as to ensure fair and efficient processing of claims, together with an environment which is financially and practically supportive whilst also respecting individual human rights, there is a possibility that more, not less, asylum claims will be made in the UK. If Rwanda is able to demonstrate a system that complies with human rights standards in the way expected of them by the UK Government, this may then become a selling point for people smugglers. The idea essentially being: go to the UK and there is a guarantee of obtaining permanent residence in Rwanda, with the safeguard that applicants cannot be returned to any country except the UK. As far as we are aware, there has been no empirical research carried out by the government which actually supports their proposition that this policy will in fact deter asylum seekers from coming to the UK. It would be prudent to have such research carried out prior to incurring any further costs in implementing a policy which has already cost significant sums.

 

 

Final comments

 

  1.                     As underscored by the Supreme Court in AAA the question of whether deficiencies in Rwanda’s asylum system can be rectified is not a matter that falls within the government’s special institutional expertise (para 58). As we discussed, there are a number of things that Parliament needs to consider. However, Parliamentary scrutiny occurs late in the treaty negotiation process, often leaving little time for meaningful examination. Under CRaG, treaties must be laid before Parliament for 21 sitting days, during which either House can object to their ratification. A minister has the discretion to extend the 21-day sitting period for treaty scrutiny, but Parliament does not have the authority to compel them to make such an extension. Additionally, the government’s explanatory memoranda are typically provided shortly before intended ratification, further limiting Parliament’s ability to scrutinise a treaty effectively. The absence of established procedures for treaty debates and votes remains a significant deficiency in our constitution which needs to be addressed going forward.

 

  1.                     Second, it would be beneficial to have more clarity on the Government’s plan of implementing the new Agreement. For example, the government might use the connection between the new Agreement and the Rwanda Safety Bill as grounds to claim that the legislation serves to implement the Agreement, even if this may not be the case.

 

  1.                     Third, it would be beneficial to have more clarity about the objectives of the Agreement and the financial implications for the UK. The Agreement declares at Article 2(1) that the objective is to deter criminal activity in people smuggling with the implicit related intention of reducing the number of asylum claims in the UK. However, the Agreement guarantees at Article 10(4) that Rwanda shall, regardless of the outcome of a Relocated Individual’s asylum or humanitarian claim, regularise their immigration status to ensure a right to remain ‘in the form of a permanent residence permit’. This is, as far as we are aware, the only route for individuals to be guaranteed a right to remain following an asylum application. Article 18 of the Agreement provides for the financial arrangements to be made between the UK and Rwanda under the Agreement and in support of the relocation of individuals. However, this Article does not provide detail on the length or extent of the financial arrangements under the Agreement. The issue that then arises is whether such right to remain is to be funded by the UK for a period of 5 years from the date of their arrival in accordance with Part I and II of Annex A.

 

  1.                     It is important, therefore, to note the risks inherent in both the failure and success of the Government’s policy. Ultimately, if everything as specified in the new Agreement does not go according to the UK Government’s plan, then they face potential legal proceedings both at national and international level. Alternatively, if the expectations placed on Rwanda are met, then the UK Government may find itself funding an even higher number of asylum seekers under this Agreement.
     
  2.                To conclude by revisiting our initial point, this submission has argued that the existence of the new Agreement does not address the concerns of the Supreme Court in assessing the practical and operational measures in Rwanda and how they relate to an analysis of whether Rwanda is a safe country. However, it would be prudent to address the situation that may occur in the event that Rwanda does indeed implement the required changes effectively.

 

 

 

28 December 2023