The UK Rwanda Plan: A constitutional threat

Mohammad Alkhateeb

In the news

Suella Braverman’s dream, a possible nightmare for thousands of vulnerable persons. Some seek refuge, others possibly seeking to better their lives as economic migrants posing as asylum seekers. The now outgoing Labour government, as stated by former Prime Minister Keir Starmer, had declared the plan ‘dead and buried’. This piece revisits what could, indeed would have very likely been, had it not been for the most recent general elections which saw an incoming Labour Government.

A Supreme Court ruling had deemed the Rwanda plan unlawful, a battle of public opinion highlighting the controversial nature of the plan, the Safety of Rwanda (Asylum and Immigration) Act (SRA), spearheaded by Rishi Sunak and his government, had ‘finally passed’. The SRA came to being to push the scheme through in spite of the Supreme Court ruling.

The Rwanda plan is, indeed, dead and buried. Yet, little attention has been afforded to the means by which the Conservative government had attempted to persevere with its implementation. The UK’s constitutional structure had been all but threatened by an act of political overriding of judicial decision-making. The nature of the UK constitution, although not enshrined into a single text as with the French Constitution or indeed the vast majority of states around the world, is nevertheless governed by a set of principles. The separation of powers[1] and judicial independence[2] are at the heart of the UK constitutional structure.

The Rwanda plan

The plan was designed to prevent any person from entering the UK illegally, indeed the government had stated in April 2022 that ‘any asylum seeker entering the UK illegally…from a safe country such as France, could be sent to Rwanda’. The aforementioned report explains that ‘the UK intends to send some people who would otherwise claim asylum in the UK to Rwanda to seek asylum there’, after which the Rwandan authorities will determine whether to grant asylum seekers permanent residence or asylum. The UK intended to pay Rwanda £170,000 per person relocated. The Report asserts that the UK can ask for their return but the treaty does not grant Rwanda the right to repatriate people or send them elsewhere and, they must grant those persons asylum or permanent residence.

The Supreme Court Ruling

The land’s highest court, the United Kingdom Supreme Court, was tasked with determining whether the Rwanda plan is lawful. To that end, the court determined whether Rwanda is a ‘safe third country’, meaning that Rwanda ‘must accordingly be a country in which the principle of non-refoulement will be respected’. This means that to be considered a safe third country, it must be established that Rwanda will not send asylum seekers to other countries where their lives or freedom may be endangered, thus adhering to international legal principles governing this matter. This includes their country of origin, but also extends to any country where their life or basic rights would be endangered.

The court had found that Rwanda is not a safe country for these purposes, because it could not rely on the government’s assessment of the reliability of Rwanda’s assurances, but instead it was the court which had to make that assessment. This is not to say that the court was expressing a generalised position over the safety of Rwanda, but rather based on the risk of bias and lack of respect for due process in asylum applications as well as the danger of refoulement[3] and its implications on life, health and/or freedom of relocated individuals.

The court came to that judgment based on a number of factors, including Rwanda’s record of inconsistent decision making, evidence of bias in the application processes, and a precedent of the East African state failing to adhere to assurances it had made to the Israeli government in the context of an agreement for the relocation of asylum seekers. This would have therefore cast doubt on whether Rwanda would in fact adhere to assurances it had made to the UK government in the context of the Rwanda Plan.

The government’s response and Illegality

In a common law system[4] such as that of England and Wales, judicial decisions are binding precedents, meaning that judgments of the courts may amount to law. However, law is effective only to the extent to which it is enforceable. The BBC reported that ‘the Rwanda Bill was introduced to allow the scheme to go ahead after the Supreme Court ruled that it was unlawful. The government and parliament’s response was not a strive to implement the recommendations made by the Supreme Court or to respond to the concerns it had laid out, instead it was a process of judicial silencing by semi-constitutional technicalities, effectively disarming the courts and engaging in an act amounting to ‘an extremely serious attack on judicial independence’.

From the numerous concerns expressed by the court in its judgment, the SRA makes some attempt to veritably address the court’s concerns, by dictating that ‘a relocated individual will not be removed from Rwanda except to the United Kingdom’. This is an attempt to address the court’s concern regarding refoulement. Additionally, the Act provides that ‘relocated individuals are to be treated equally’. This provision was very likely drafted in response to the court’s concern surrounding inconsistencies in processing asylum claims.

Nevertheless, these alterations are something of a toothless tiger, for there is no prospect of any court or tribunal holding jurisdiction to try any transgressions. Indeed, the SRA states in part that no court or tribunal may consider ‘any claim or complaint that the Republic of Rwanda will or may remove or send a person to another State…’ nor ‘any claim or complaint that a person will not receive fair and proper consideration of an asylum’ or ‘any claim or complaint that the Republic of Rwanda will not act in accordance with the Rwanda Treaty’.

It is clear that the intent behind this legislation is to confirm, in theory, that the UK does not wish for those transgressions of international law or the terms of the Rwanda Treaty to be committed, nor does it preemptively condone them, however the legislation equally illustrates a clear lack of intent to enforce such protective measures. As such, the Conservative government had ensured that there is no remaining mechanism available to the Judiciary to enforce international law or the UK’s international obligations. The UK had passed the buck to Rwanda whilst renouncing its obligations under international law.

By passing the SRA, the government had attempted to create a shortcut to bypass its obligations under international law, and in doing so, had demonstrated contempt for its own judicial institutions and a distrust of its judiciary. The European Court of Human Rights had ruled in Ilias v Hungary that a State party is not permitted to expel asylum seekers to a third country without determining their asylum status, this is unless the State party has ensured that there are in place adequate procedures for asylum claims and that there is concretely no risk of refoulement. This means that, as per the UK’s obligations under international treaties it has freely and willingly entered into, the government has a positive duty and responsibility to ensure that the processes for asylum seekers in Rwanda are fair and appropriate and that there is truly no risk of repatriation or relocation to countries where lives or rights would be endangered, not a mere duty to express its wish for correct processing and non-refoulement.

There is a distinction, in the legal discipline, between issues of fact and issues of law. What Parliament has done in passing the SRA is enshrine a purported fact into law, a fact which the Supreme Court had previously found not to be true. The government and parliament introduced legislation asserting, as a matter of law, that Rwanda is safe. The intention of the government and parliament, translated into the effect of this legislation, is to state as a matter of law that Rwanda is safe. The difficulty of course is that the semantic nature of this statement makes it one of fact, not law. It is a subjective statement of fact. Thus, it was a mere workaround to evade the true verdict of the courts.

The European Court of Human Rights held in the case of Chahal v United Kingdom that expulsion is illegal as per Article 3 of the European Convention on Human Rights, if there are reasonable grounds to believe that the expelled person would be subject to ‘torture or inhuman or other degrading treatment or punishment in the receiving State’. The Supreme Court declined to offer a detailed view on the risk of transgressions of Article 3 (including but not limited to torture and ill treatment), however it did cite the Country Policy Information Notes provided to the Home Office caseworkers, which advised that there were ‘no substantial grounds for believing that a person, if relocated to Rwanda, would face a real risk’.

This is a rather superficial judgment. One ought to recognise that there is little threat of acts contrary to Article 3 being committed against asylum seekers in Rwanda, however no such conclusion could reasonably be drawn when one considers the evidently high risk of refoulement. In other words, international law would compel the UK to ensure that Rwanda would not deport any person to a country where their Article 3 rights would be violated. This is particularly striking in cases of persons seeking asylum in fear of political persecution or oppressive state conduct in their nations of origin. If the UK is willing to deport asylum seekers to Rwanda in full knowledge of, or even with recklessness as to the dangers of refoulement, then it is contributing to an increased risk of the asylum seeker being subjected to violations of Article 3 through their ultimate repatriation from Rwanda to another country.

Final Thoughts

The concerns expressed by the Supreme Court and by critics beyond the judiciary should not lead us to conclude that the problem lies in the deportation or relocation of persons seeking asylum, rather that there is no tangible, enforceable assurance that the relocated individuals will not be subjected to ill treatment, and will not be repatriated to the countries they had fled where they may face danger of persecution, injury or ill-treatment.

The UK had therefore ensured that the Judiciary does not dispose of any working mechanism to uphold the state’s international obligations, nor Rwanda’s. In doing so, the government had overstepped its constitutional mark, encroached on the concepts of the separation of powers and judicial independence and had renounced its commitment to international law and adherence to international treaties.

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[1] The separation of powers is the principle that powers are exercised independently by each component of the state (executive, judiciary and legislature) with as little overlap as possible.

[2] Judicial independence is a core principle of a democratic state, practiced to varying degrees. It means that the judiciary, ie. Judges, act independently to make decisions on without pressure or intervention by political actors.

[3] Refoulement is the act of forcibly repatriating an asylum seeker or refugee, this is an act which is illegal under international refugee law.

[4] A common law system is one where laws are derived not only from statute (acts of parliament), but also principles and customs derived from judicial decisions and legal cases which become binding principles.