WRITTEN EVIDENCE FROM DR OLAYINKA LEWIS AND FRANZISKA FLUHR

  (RWA0018)

 

 

Summary

  1. This submission primarily addresses issues from question 7 – Does the Bill give rise to any other significant human rights concerns?
  2. The Bill gives rise to several significant human rights concerns, as presented below. First, it addresses how the bill, by disapplying aspects of the Human Rights Act (HRA) breaches the fundamental legal principle that requires the observance of agreements between states.[1] Second, it will be shown how the Bill violates the principle of non-refoulement which is enshrined both in refugee and human rights law. Third, it addresses how the Bill seeks to sustain discriminatory practices against refugees and its disregard for their fundamental human rights.

 

Violation of human rights agreement between states.

 

  1. A foundational legal principle is one that requires the observance of agreements between states. It therefore follows that where parties or countries ratify a treaty, it is binding upon them and must be performed by them in good faith.[2] The preamble to Human Rights Act 1998 (HRA) gives effect to the rights and freedoms guaranteed under the European Convention on Human Rights (ECHR) (a convention aimed at protecting the human rights of all people within the states parties) and therefore aligns with the fundamental principle of law that requires adherence to terms of international agreements. The provisions of the Human Rights Act, which are based on the ECHR, underscores the significance of adherence to human rights treaty obligations, one rooted in both customary international law and specific treaty provisions.
  2. The exclusion of judgments, decisions, declaration or advisory opinions of the European Court of Human Rights,[3] seeks to remove a fundamental part of the HRA which is crucial to its determining whether a person’s human rights, as determined by the European Court of Human Rights, have been breached. It therefore removes an avenue for redress where an asylum seeker seeks to enforce their rights under the HRA or ECHR and therefore a violation of human rights agreements between states.
  3. Crucially, a country cannot use its domestic laws as a reason for non-observance of its international law obligations.[4] The principle outlined in Art. 27 of the Vienna Convention, emphasizes the supremacy of international law over national legislation when it comes to treaty obligations. Therefore, by
  4. Clause 3 of the Bill goes against the fundamental legal principle that requires the observance of agreements between states. Disapplying aspects of the HRA that protects a person’s right to access their human rights, is a disregard for a convention that aims to protect the human rights of asylum seekers and migrants within the UK.
  5. The Bill also gives rise to human rights concerns through non-adherence to provisions of other international agreements. The 1951 Convention Relating to the Status of Refugees (Refugee Convention) creates a regime of international protection for persons fleeing human rights abuses that result in a well-founded fear of persecution. Being a party to the Refugee Convention, the United Kingdom committed to aims of the Refugee Convention by providing protection to persons classed as refugees under art. 1 of the Refugee Convention. States have an obligation under the Refugee Convention, to grant asylum, in the sense of admission to residence and lasting protection, to person fleeing persecution.[5]
  6. The Bill indirectly seeks to aid other nations in breaching their own treaty obligations. As a member of the East African Community (EAC), Rwanda has an obligation to observe rights of asylum seekers and harmonise its law with other partner states in line with Art 124 (3) of the Treaty for the establishment of the East African Community (TEAC), which provides that member states should establish common mechanisms for the management of refugees. Art 7(2) TEAC provides that EAC member states are compelled to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice, and the maintenance of universally accepted standards of human rights. Rwanda is also a party to the OAU (Organisation of African Unity) Refugee Convention, another regional complement of the Refugee Convention which compels countries to observe general principles of refugee law. Therefore, by co-operating with the UK regarding its policy of offshoring asylum seekers, a policy which gives rise to significant human rights concerns, Rwanda may also be breaching its own treaty obligations.
  7. The Bill seeks to break a fundamental obligation under international law and therefore undermines the need for the UK to adhere to provisions of treaties it enters. A fundamental obligation that seems not to be clearly understood by politicians. It comes as no surprise that politicians often mention immigration enforcement, and deportation in particular, to assert state sovereignty.[6] 

 

Non-refoulement

  1. The UK has an obligation to uphold the principle of non-refoulement which is not only enshrined in treaty law but also forms part of customary international law.[7] The principle does not allow for exceptions or derogations under human rights law. This also means that there is no scope for balancing a person’s conduct against the risk of harm if they are returned.[8] The principle prohibits non-admittance of refugees by way of force, border closures, or barriers to access and proscribes the ejection from a state’s territory, whether by formal policy, acquiescence, or implemented through coercive repatriations.[9]
  2. In its judgement on 15 November 2023, the Supreme Court warned of the risk of refoulement when sending migrants to Rwanda because of deficiencies in Rwanda’s procedure for determining asylum claims.
  3. While it is argued that with the Partnership with the Government of Rwanda the risk of refoulement has been minimised, e.g., through a new appeal body, independent monitoring mechanism, and assurances that Rwanda will not remove any person relocated under the Migration Economic Development Partnership, severe challenges and risks of the refoulement of individuals persist.
  4. The access to the asylum process for vulnerable groups in Rwanda reveals that significant progress needs to be made to improve the lives of refugees in the country. For example, there are serious concerns about the safety of LGBTQ+ refugees in Rwanda and potential risks of discrimination. These concerns were voiced by the Home Office itself in its 2022 equality impact assessment.[10]
  5. The lack of safeguards for vulnerable groups like LGBTQ+ asylum seekers raises questions about is a breach of the fair and efficient asylum procedure policy set out by the UN.
  6. The Bill’s aim of preventing and deterring unlawful migration by unsafe and illegal routes by enabling the removal of persons to Rwanda is aimed specifically at persons from particular countries or particular social groups. This further gives rise to significant human rights concerns for the people affected.

 

Discrimination

  1. The Bill gives rise to serious concerns about discrimination against persons from certain countries.
  2. According to the UN Refugee Agency (UNHCR),[11] as of the end of 2022, more than half of refugees under its mandate originate from just three countries; Syria Arab Republic, Afghanistan and Ukraine. In addition, South Sudan, Bangladesh, Sudan, Democratic Republic of Congo, Somalia, Central African Republic and Eritrea, make up the 10 largest refugee crises worldwide.[12] All of these countries require permission to enter the UK[13] and are therefore unable to enter the UK through legal means, to seek asylum.
  3. By targeting persons from particular countries, who have no legal means of entering the UK, the Bill gives rise to discrimination on grounds of country of origin, as all persons arriving from any of the top 10 countries under the UNHCR mandate, except those who have arrived through safe legal routes,[14] mainly arrive through unsafe and illegal routes to seek asylum in the UK.
  4. By removing them to Rwanda, the UK penalises them for seeking asylum in the UK. This therefore give rise to serious concerns about the discriminatory approach, based on country of nationality, to seeking asylum in the UK.

 

Conclusions

 

  1. Besides the several specific human rights concerns laid out in this submission, the plan to send asylum seekers to a third country – be it Rwanda or any other third country – means that the UK would externalise its obligations under international refugee and human rights law. The UK has obligations towards individuals, be it migrants, victims of modern slavery and trafficking, or refugees. Off-shoring these obligations to a third state is incompatible with the UK’s own obligations.
  2. In 2018, the UK government affirmed at the United Nations General Assembly the Global Compact on Refugees. By doing so, the UK endorsed that it would enhance protection and assistance to refugees and ensure fairer and more predictable burden and responsibility sharing with those countries that host most refugees. The offshoring policy is diametrically opposed to burden and responsibility sharing.
  3. By disapplying crucial aspects of the HRA, violating the principle of non-refoulement and sustaining discriminatory practices against refugees, the Bill gives rise to significant human rights concerns regarding refugees and migrants generally.

 

(13 January 2024)

 

 

 

 

 

 

 

 

 

 

 

 

 


[1] Art. 26 and 27, Vienna Convention on the Law of Treaties 1969

[2] Art. 26, Vienna Convention on the Law of Treaties 1969

[3] S. 2 Human Rights Act 1998

[4] Art. 27, Vienna Convention on the Law of Treaties 1969

[5] Goodwin-Gill et al. The Refugee in International Law (4th ed. OUP 2021)

[6] Radziwinowiczowna, A and Lewis, O (2023) The new grounds for deportation of European Union citizens in the UK. International Migration. DOI https://doi.org/10.1111/imig.13126 accessed 11 January 2024

[7] See, e.g., Declaration of States Parties to the 1951 Convention and/or it 1967 Protocol relating to the Status of Refugees: HCR/MMSP/2001/09 (16 Jan 2002) Preamble, para 4; UN General Assembly resolution A/RES/57/187. See also UNHCR, ‘The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93’ (1994) <https://www.refworld.org/docid/437b6db64.html>; Sir Elihu Lauterprecht and Daniel Bethlehem, ‘2.1 The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) 162–163 <https://www.refworld.org/docid/470a33af0.html>

[8] Chahal v United Kingdom (1996) 23 EHRR 413 and affirmed by states in the Global Compact for Safe, Orderly and Regular Migration UNGA res. 73/195 (19 Dec. 2018) para. 37. The principle’s non-derogable character was inter alia affirmed by the General Assembly in Res/51/75 (12 February 1997) para 3; UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol’, para 11.

[9] Hathaway, The Rights of Refugees under International Law (2nd ed. CUP 2021)

[10] Home Office, Equality Impact Assessment Migration and Economic Development Partnership with Rwanda, 2022.

[11] UNHCR, Refugee Data Finder; unhcr.org/refugee-statistics/ Accessed 11 January 2024

[12] Concern Worldwide, The 10 Largest Refugee Crises to Know in 2024. The 10 largest refugee crises to know in 2023 | Concern Worldwide Accessed 11 January 2024.

[13] Immigration Rules Appendix Visitor: Visa national list. Immigration Rules - Immigration Rules Appendix Visitor: Visa national list - Guidance - GOV.UK (www.gov.uk) Accessed 12 January 2024

[14] Examples of current safe routes include the Syrian Vulnerable Persons Resettlement Scheme, the Afghan Citizens Resettlement Scheme, and the Ukraine Family Scheme.