1. The author is an academic at the Essex Law School, University of Essex. This evidence is submitted in a personal capacity.

Does the requirement to conclusively treat Rwanda as a safe country comply with the UK’s human rights obligations, including in particular the prohibition of refoulement and the prohibition of inhuman or degrading treatment under Article 3 ECHR?

  1. I have reservations about the requirement to consider Rwanda a safe country as per the Safety of Rwanda (Asylum and Immigration) Bill, especially in terms of its immediate compliance with the international law prohibitions on refoulement and inhuman or degrading treatment. This Bill does not tackle the systemic or generalised deficiencies in Rwanda, nor does it address the potential risks for violations of the fundamental rights of asylum seekers relocated to Rwanda.


  1. The UK Supreme Court’s ruling in AAA & Others v Home Secretary on 15 November 2023, clearly stated that Rwanda, at that time, did not qualify as a safe country. The judgment was based on a factual matter: the current risk of refoulment, inhuman and degrading treatment which is determinant to whether Rwanda is a safe country. The Supreme Court, citing relevant expert evidence, emphasised that the current risk is indeed high. The issue at hand is not therefore merely about the adequacy of the guarantees in the new Agreement, or whether a Bill mandating Rwanda to be considered undoubtedly safe should be passed. It also concerns whether the new treaty signed on 5 December 2023, along with the enactment of legislation making provision about the removal of certain migrants to Rwanda, can genuinely guarantee Rwanda's safety.


  1. While Rwanda has taken on new commitments under the bilateral Treaty signed in December 2023 (which is a positive step), this does not automatically ensure that the risks are eliminated or that the concerns highlighted by the Supreme Court are being or can be immediately addressed. 


  1. As such, additional to the content of domestic legislation on the matter, 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 in the UK, Parliament shall also consider carefully 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. As the Supreme Court highlighted (in paragraph 93 of the judgment) ‘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.’ The Supreme Court also highlighted (in para 104 of its judgment) 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.’ The Supreme Court’s conclusions align with those of the European Court of Human Rights in the NSK v UK case on 14 June 2022 which emphasised that the decision to deem Rwanda a safe third country was either irrational or based on inadequate investigation, raising ‘serious triable issues’.


  1. The current Bill appears to be setting aside the Supreme Court’s judgment regarding the relevant assurances by emphasising that ‘this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country.’ It provides that Rwanda has agreed to fulfil a number of obligations including the improvement of the system for the processing of protection claims by relocated, which in my view accepts implicitly that this is not the case at present. My recommendations would be, therefore, that the structures envisaged by the new Agreement should be first put in place and tested prior to the implementation of the Agreement or any related legislation. This is crucial to demonstrate not only Rwanda’s institutional readiness to meet the UK’s standards but also its overall legal preparedness.

Does legislating, in clause 2, to prevent the courts considering any claim that Rwanda is not safe comply with the UK’s human rights obligations, including in particular Article 13 ECHR?

  1. Like the previous Memorandum of Understanding, the new Treaty laid before Parliament on 6 December 2023 leaves open questions about whether the relevant assurances undertaken by Rwanda will be upheld. Compliance with Article 13 ECHR is particularly crucial in this regard. The European Court of Human Rights decision in NSK v UK to grant an urgent interim measure 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’. 


  1. Clause 2 does very little to address the findings of the Strasbourg Court. On the contrary, it leaves decision-makers (including the Secretary of State, immigration officers and courts) no room for questioning the assurances made by Rwanda by stressing that everyone must conclusively treat Rwanda as a safe country even if it is not. Clause 2 (4) of the Bill significantly limits the scope of judicial review taking decisions on whether or not Rwanda is safe out of the hands of the courts. It explicitly mandates that courts must not consider any claims related to Rwanda’s non-refoulment international obligations, the fairness of its asylum processing, or any alleged breaches of the Asylum Partnership Agreement by Rwanda. This inclusion of an ouster clause effectively restricts judicial review on the grounds that Rwanda is an unsafe country, which in my view has profound implications for judicial independence.


  1. In its ECHR Memorandum regarding the Safety of Rwanda Bill, the Government asserts that while Article 13 of the ECHR is engaged, it will not be violated as individuals can contest a decision to remove them to Rwanda on the basis of personal circumstances. However, allowing courts to halt flights in rare cases of individual risk of mistreatment in Rwanda does not fully align with Article 13 ECHR, as it fails to consider the risk of being sent back to their home countries from Rwanda (onward refoulment).


  1. Even if the Government successfully passes this legislation through both Houses, and domestic courts are restricted from considering most legal challenges, the issue will likely shift to the Strasbourg Court. Nevertheless, the overall safety of Rwanda concerning the risk of asylum seekers being sent back from Rwanda to their home countries remains a matter that can be legally challenged domestically under Section 4 of the Human Rights Act (HRA). However, a declaration of incompatibility under the HRA does not offer a direct remedy for those affected, thereby making the involvement of the European Court a likely necessity.


  1. The European Court in this event will most likely follow its past jurisprudence including the judgment in Chalal v UK (1996) where it held that where deportation is likely to lead to a violation of Article 3 ECHR, the UK cannot lawfully sanction such deportation even if the individual may be a threat to national security. The prohibition provided by Article 3 ECHR against ill-treatment is equally absolute in relocation cases.

Does allowing for some claims based on compelling evidence relating to particular individual circumstances affect the Bill’s compliance with human rights?

Does the way in which the Bill deals with applications for interim remedies from domestic courts, including by allowing them only in narrow circumstances, comply with the UK’s human rights obligations?

  1. Indeed, The Bill contains some very modest safeguards (in Clause 4) but there is still potential to breach international law.  If Rwanda is arguably unsafe, as presently it is, then the Bill would breach Article 13 ECHR (right to an effective remedy) by excluding the courts from granting a remedy with suspensive effect pending determination of that question.

Is expressly stating that it is for Ministers to decide whether to comply with interim measures issued by the European Court of Human Rights, and prohibiting courts or tribunals from having regard to them, consistent with the UK’s obligations under the ECHR? Would deciding not to comply with interim measures put the UK in breach of the ECHR?

  1. The Bill takes real issue with the ECHR. Clause 3 disapplies much of the 1998 Human Rights Act 1998 (HRA). Judges will not, for example, be allowed to interpret the legislation so that it respects the ECHR (Clause 3(4)), and the Home Office will not have a legal obligation to respect the ECHR when making decisions about removing people to Rwanda (Clause 3(5)). Last but not least, Clause 5 requires judges to ignore any interim measures of the European Court of Human Rights and, instead, gives an absolute right to the Government to decide whether the UK will adhere to them. Such an express statement that it is for Ministers to decide whether to comply with interim measures issued by the European Court of Human Rights and prohibiting courts or tribunals from having regard to them, is inconsistent with the UK’s obligations under the ECHR. Crucially, the Safety of Rwanda Bill appears to be incompatible not only with the UK’s international obligations under the ECHR but also with well-established understandings of the separation of powers between the legislature and the judiciary.

Does the Bill have any significant implications for constitutional principles, such as the sovereignty of Parliament, the separation of powers between the courts and Parliament and the rule of law, and the way in which they affect the protection of human rights in the UK?

  1. The Bill stresses that the validity of the Act is unaffected by international law which includes all relevant treaties mentioned by the Supreme Court. The partial disapplication of aspects of the Human Rights Act 1998 and international law are important demonstrations of parliamentary sovereignty. Hence, situations may emerge in the future necessitating judicial interpretation of the general principle of parliamentary sovereignty.


  1. The UK constitution, while not limiting Parliament’s legislative authority, seeks to impose legal boundaries on governmental actions through the rule of law, given statutory recognition in the Constitutional Reform Act 2005 as a principle of the UK constitution. Paul Craig explains that the rule of law requires not only a legal justification for legislative and governmental actions, but also integrates a rights-centric component. This component dictates that certain rights either stem from or are safeguarded by the rule of law, making their violation an infringement of the rule itself. 


  1. Empirical research by Maurice Sunkin shows that judicial review is indispensable for ensuring that all administrative bodies adhere to legal limits, empowering claimants and fostering greater trust and confidence in the system. The courts’ role in upholding those limits is crucial for maintaining a strong constitutional balance, particularly in the protection of human rights. Cases like Privacy International bring to light the potential limitations on parliamentary sovereignty that arise from the rule of law. Yet, as Mark Elliott and Alison Young point out, questions still linger regarding the specific requirements of the rule of law, how it should be balanced with parliamentary sovereignty, and the exact wording needed to effectively exclude judicial review, if such exclusion is at all possible.


(9 January 2024)