THE LAW SOCIETY – WRITTEN EVIDENCE (URA0016)

 

 

Response to the House of Lords International Agreements Committee
 

UK-Rwanda asylum Agreement
 

1)   The Law Society of England and Wales is responding to this House of Lords International Agreements Committee’s Call for Evidence in its representative capacity as the independent professional body for 200,000 solicitors in England and Wales. Our role is to be the voice of solicitors, to drive excellence in the profession and to safeguard the rule of law.

 

2)   This response outlines our views on the Government’s Rwanda Treaty between the UK and Rwanda for the provision of an Asylum Partnership Arrangement. The Law Society has sought to address all questions in the Call for Evidence.

 

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

3)   Whilst the Law Society agrees that international agreements with such significant rule of law implications should be contained in a treaty (as opposed to a memorandum of understanding) so that the agreement is legally binding, Rwanda has been found by the Supreme Court not to be a safe country for asylum seekers. The signing of a treaty does not change this finding of fact.

 

Concerns raised by the Supreme Court

 

4)   The recent Supreme Court judgment in the legal challenges to the Rwanda asylum policy highlighted that many of the problems with the Rwandan asylum system are structural.[1] Whilst the safeguards and protections have been expanded and more detail has been provided in the treaty, the Supreme Court doubted whether practices could be changed in the “short term”.[2] The Law Society therefore has serious concerns that the Treaty and its additional measures do not sufficiently address the concerns of the Supreme Court.

 

5)   It is alarming that the UK Government should be seeking to use law to change fact through both this Treaty and the accompanying domestic legislation. Doing so significantly undermines the rule of law and the constitutional role of the courts.

 

 

Question 2: How strong and effective are the protections for persons relocated to Rwanda set out in the Agreement?

6)   Whilst it is positive that there are greater protections within the Treaty, such as setting out that relocated individuals cannot be sent back to any country other than the UK, the Supreme Court said that good faith, good intentions, and aspirations were not enough and “do not necessarily correspond to reality.” What matters is “whether they are achievable in practice.

 

7)   We echo the Supreme Court’s concerns. The comprehensive assessment of a substantial body of evidence conducted by the Supreme Court demonstrated previous failures of Rwanda to comply with both multilateral treaty obligations and international agreements on a significant scale. In light of this, there must also remain concerns that there may be similar failures in relation to this Treaty with the UK.

 

8)   The fact that Rwanda has taken on new treaty obligations does not mean that the risks and defects identified by the Supreme Court have already been removed or that they will be removed.

 

9)   We are further concerned that the Safety of Rwanda (Immigration and Asylum) Bill which accompanies the Treaty does not allow for review by the courts as to whether such safeguards are sufficient.

 

10)                       All the safeguards and monitoring mechanisms within the Treaty are untested and are not yet implemented. Implementation includes the setting up of the various bodies and monitoring mechanisms, recruiting and training of judges, ensuring availability of lawyers and interpreters, and so on. We are concerned about whether the UK and Rwandan governments will be able to operationalise this agreement in the short time frame envisaged by the UK Government. Further questions arise as to whether it will work in practice and ensure that individuals are sufficiently protected.

 

Question 3: 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?

11)                       As with the previous agreement, the Treaty establishes a Monitoring Committee and a Joint Committee. The Monitoring Committee will comprise persons independent of both parties, will meet more regularly than provided for under the previous MoU, and will develop a mechanism to allow relocated individuals and legal representatives to lodge confidential complaints directly with the Monitoring Committee of alleged failures to comply with the obligations in the agreement. The Joint Committee shall also provide a monitoring function, made up of representatives from the UK and Rwanda.

 

12)                       The dispute settlement procedure is untested and so it is unclear whether it will be effective in practice.

 

13)                       There is insufficient detail regarding how the individual complaints mechanism would function. In particular, it is not clear what the outcome will be where an individual complaint is found by the Monitoring Committee to be substantiated. Article 15(9) of the treaty states: “The Monitoring Committee shall have information about other complaints mechanisms inbuilt in both Parties’ institutions and shall, where appropriate, refer them back to those mechanisms for resolution.” However, no details are provided as to what these national complaints mechanisms are or what remedies they can provide, including whether this extends to access to courts. Therefore, it is not possible to determine whether this is capable of providing sufficient protection and access to justice.

 

14)                       In addition, it is unclear what the Monitoring Committee’s powers would be, should repeated and systemic failings be identified through its monitoring or inspection activities, or through a pattern of individual complaints. While the Monitoring Committee has the power to make recommendations to the Joint Committee, it is not explicit whether this includes the ability to recommend that the agreement be temporarily suspended (potentially to allow for further investigation) or even terminated.

 

15)                       In any case, the Law Society considers that these safeguards are not a substitute for ensuring that asylum claims are handled fairly and independently within the Rwandan asylum system and courts. They are also not a substitute for ensuring that individuals have adequate access to UK courts, which is severely limited by the Safety of Rwanda (Asylum and Immigration) Bill linked to this treaty.

 

16)                       Whilst it is positive that the treaty contains additional mechanisms intended to act as safeguards for identifying failures, the Supreme Court itself set out in its judgment that: 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.”[3] We echo these concerns.

 

 

Question 4: 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?

17)                       There is provision for a new mechanism for challenge by the Rwanda appeal body which includes oversight by one Rwandan and one other Commonwealth national co-president. The body will be composed of judges from a mix of nationalities who will adjudicate on any appeals arising from the First Instance Body. This will include Rwanda introducing a new asylum law.

 

18)                       These measures appear to be an attempt to address concerns around judicial independence in Rwanda. These concerns expressed by the Supreme Court were significant, and it cautioned against reliance on an untested appeals system.

 

19)                       Similarly, the system proposed would be new and untested. There has been no evidence provided of any actual changes that have been made. There is also no indication of how long it would take to operationalise the new processes envisaged in the Treaty and how to ensure they are robust enough to provide adequate protection. For example, it is unclear how the UK Government will recruit for this appeals body. Therefore, it remains to be seen how it would bear out in practice.

 

Question 5: Although offshore processing is not new, are there precedents for requiring that claims must be for asylum in a third country?

20)                       The immigration and asylum policies of other countries are not within the Law Society’s expertise. We are only aware of a similar arrangement to that of the current UK policy previously having been made between Israel and Rwanda, whereby certain asylum seekers in Israel were removed to Rwanda where they were eligible to make an asylum claim.

 

21)                       The Israel/Rwanda agreement was signed in 2013 and continued until 2018. Concerns regarding the failings in practice of this agreement were addressed by the UK Supreme Court in its recent judgment regarding the legal challenge to the Rwanda policy. These concerns included the failure of Rwanda to comply fully with the terms of the agreement and its failure to secure the safety of asylum seekers in practice, including from refoulement. The Supreme Court concluded that: “There is no dispute that persons who were relocated under the agreement suffered serious breaches of their rights under the Refugee Convention.[4]

 

Question 6: Are there any other aspects of the Agreement which you would like to draw to the attention of the International Agreements Committee?

New agreement in a Treaty

 

22)                       As the agreement has been re-introduced as a treaty, it is subject to the parliamentary scrutiny requirements of the Constitutional Reform and Governance Act 2010 (CRAG).[5] The Committee will be aware that this requires that a treaty must be laid before Parliament at least 21 sitting days before ratification. There is then limited scope for Parliament to reject the treaty.

 

23)                       Among the issues with the CRAG procedure are a lack of guarantees that parliamentary debates will be granted, and the short time frame provided for scrutiny. However, these are aspects that are within the Government’s power to ameliorate by ensuring sufficient time is made available on the parliamentary timetable for debates, or by extending the 21 sitting day period should it prove to be necessary.

 

24)                       Where there are issues of fundamental rights at stake, as with this treaty, it is essential that Parliament is able to fulfil its democratic role in providing detailed scrutiny. The Government should ensure that it is able to by providing the time needed.

 

Oversight of the Treaty

 

25)                       There is provision in the Treaty for a transfer of individuals not to take place if there is an order issued by a UK or Rwandan court expressly preventing the lawful operation or implementation of the transfer arrangements, or if the effect of such an order is such that the UK is of the view that the transfer of individuals cannot take place under the Agreement. It is unclear how such an order could be made given the ousting of judicial oversight of the UK courts within the accompanying Safety of Rwanda Bill and concerns raised regarding the independence and effectiveness of the judicial system in Rwanda by the Supreme Court. This provision may therefore be practically meaningless.

 

Legal representation and legal aid

 

26)                       It appears that, as before with the MoU, most individuals selected for removal under the policy will be eligible for legal aid in the UK under existing rules. However, there is already a growing capacity crisis in the asylum and immigration legal aid sector, and the demand for services looks set to increase substantially. Therefore, there is no guarantee that individuals will be able to access legal advice and legal aid even if they are eligible for it.

 

27)                       While it is welcomed that there is provision within the treaty for free legal advice from a legal professional in Rwanda at all stages of the asylum application and appeals processes, we echo the concerns of the Supreme Court decision which sets out that the risk of lack of independence is not confined to the judiciary: “In its comments on the draft CPIN report on asylum processing in Rwanda, mentioned in para 6 above, the FCDO commented, in relation to a statement that “independent legal support and advice is available”, that legal support was likely to be independent unless the matter became political. … The implication of the evidence is that the legal profession and the courts might not operate independently in such cases.[6] Therefore, the act of signing this Treaty does not in itself ensure effective legal representation will be available at each stage of the process.

 

Unworkability

 

28)                       The Law Society is concerned that the proposed process will be unworkable and ineffective in practice. The United Kingdom will be involved in the processing of asylum claims in Rwanda and those individuals refused by Rwanda will be returned to the UK. In theory, many individuals could be returned to the UK for a multitude of reasons. Under Article 19 of the Treaty the UK has also undertaken to accept and resettle “a portion of Rwanda’s most vulnerable refugees”. It is remarkable that, even on the policy’s own terms, there are such contradictions between its aims and outcomes.

 

29)                       The question also arises as to what then happens when these people are returned to the UK. They will likely be left in a state of limbo, as they will not be able to claim asylum in the UK but will be unable to be removed anywhere else as there are no other third country returns agreements.

 

29 December 2023

7

 


[1] AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023), para 102

[2] Ibid. para 93

[3] AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023), para 105

[4] AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023), para 95

[5] The Constitutional Reform and Governance Act 2010 https://www.legislation.gov.uk/ukpga/2010/25/contents

[6] Ibid para 83