Agreement between UK and Rwanda for the provision of an asylum partnership to strengthen international commitments on the protection of refugees and migrants (publishing.service.gov.uk)
In international law, the agreement is a treaty and, as such, will be legally binding on both States once it is ratified. The word "treaty" is used in other material published by the government - Treaty signed to strengthen UK-Rwanda migration partnership - GOV.UK (www.gov.uk)
The UK Foreign Secretary (James Cleverley MP) has said that -
'Rwanda is a safe country that cares deeply about supporting refugees. It has a strong history of providing protection to those that need it, hosting over 135,000 asylum seekers who have found sanctuary there.'
That statement is undoubtedly at odds with views of the UNHCR which influenced both the Court of Appeal's majority judgment and the Supreme Court's unanimous November judgment.
The UNHCR's evidence (see Press Summary) pointed to serious and systematic defects in Rwanda’s procedures and institutions for processing asylum claims. In summary, these include: (i) concerns about the asylum process itself, such as the lack of legal representation, the risk that judges and lawyers will not act independently of the government in politically sensitive cases, and a completely untested right of appeal to the High Court, (ii) the surprisingly high rate of rejection of asylum claims from certain countries in known conflict zones from which asylum seekers removed from the UK may well emanate, (iii) Rwanda’s practice of refoulement, which has continued since the MEDP was concluded, and (iv) the apparent inadequacy of the Rwandan government’s understanding of the requirements of the Refugee Convention.
There was plainly irritation in the Rwandan government at the UNHCR view. Whether, and to what extent, the treaty will have addressed the UNHCR concerns is a moot point.
Bill:
The government introduced a Bill which, according to government material, is intended to make clear that Rwanda is a safe country for asylum seekers, and that people who have come to the UK illegally can be removed there swiftly. This will build on the legally binding treaty signed by the UK and Rwanda.
Safety of Rwanda (Asylum and Immigration) Draft Bill - GOV.UK (www.gov.uk)
Secretary James Cleverly has made the following statement undersection 19(1)(b) of the Human Rights Act 1998:
"I am unable to make a statement that, in my view, the provisions of the Safety of Rwanda (Asylum and Immigration) Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill."
* Clause 1 *
Clause 1 starts by stating the purpose of the legislation - "The purpose of this Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by enabling the removal of persons to the Republic of Rwanda under provision made by or under the Immigration Acts."
Clause 1(2)(b) states "this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country."
It is not at all clear how Parliament can form such a judgment other than by simply accepting Ministerial views. It is a view that, as things stand, is not in line with UNHCR views.
Clause 1(3) sets out obligations of Rwanda in accordance with the Rwanda Treaty.
Clause 1(4) states - It is recognised that - (a) the Parliament of the United Kingdom is sovereign, and (b) the validity of an Act is unaffected by international law.
This seems legally superfluous and may have been inserted purely for political effect.
Clause 1(5) proceeds to define the meaning of "safe country"
Clause 1(6) sets out what the term "international law" includes - e.g. the Human Rights Convention, Refugee Convention, Convention against Torture etc.
* Clause 2 Safety of the Republic of Rwanda *
Clause 2(1) - "Every decision-maker must conclusively treat the Republic of Rwanda as a safe country."
(a) any claim or complaint that the Republic of Rwanda will or may remove or send a person to another State in contravention of any of its international obligations, including in particular its obligations under the Refugee Convention,
(b) any claim or complaint that a person will not receive fair and proper consideration of an asylum, or other similar, claim in the Republic of Rwanda, or
(c) any claim or complaint that the Republic of Rwanda will not act in accordance with the Rwanda Treaty.
* Clause 3 *
Clause 3(1) and 3(2) disapply certain provisions of the Human Rights Act 1998 - i.e.
(a) section 2 (interpretation of Convention rights) - and see Clause 3(3)
(b) section 3 (interpretation of legislation), - and see Clause 3(4)
(c) sections 6 to 9 (acts of public authorities).- and see Clause 3(5)
* Clause 4 *
Clause 4 is concerned with decisions based on particular individual circumstances
The presumption that Rwanda is generally safe (Clause 2) is not to
(a) prevent the Secretary of State or an immigration officer from deciding whether Rwanda is a safe country for the person in question, based on compelling evidence relating specifically to the person’s particular individual circumstances (rather than on the grounds that the Republic of Rwanda is not a safe country in general), or
(b) a court or tribunal considering a review of, or an appeal against, a relevant decision to the extent that the review or appeal is brought on the grounds that Rwanda is not a safe country for the person in question, based on compelling evidence relating specifically to the person’s particular individual circumstances (rather than on the grounds that the Republic of Rwanda is not a safe country in general).
However, Clause 4 continues to say that this doers not permit a decision-maker to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its international obligations (including in particular its obligations under the Refugee Convention).
The clause goes still further to place restriction on the power of a court or tribunal to grant an interim remedy to an individual. The court or tribunal may grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to Rwanda only if the court or tribunal is satisfied that the person would, before the review or appeal is determined, face a real, imminent and foreseeable risk of serious and irreversible harm if removed to Rwanda.
Please read Clause 4 in FULL.
* Clause 5 *
Clause 5 reflects UK government annoyance that the European Court of Human Rights (E Ct HR) issued an interim measure - (post 17 June 2022). The E Ct HR has subsequently modified its stance regarding interim measures - see Law Society 15 November 2023..
Clause 5 will apply where the E Ct HR indicates an interim measure in proceedings relating to the intended removal of a person to Rwanda under, or purportedly under, a provision of, or made under, the Immigration Acts.
Clause 5(2) states - "It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure."
Clause 5(3) - "Accordingly, a court or tribunal must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to Rwanda under a provision of, or made under, the Immigration Acts.
Clause 5(4)(b) - a reference to a Minister of the Crown is to a Minister of the Crown acting in person.
* Other Clauses *
Clause 6 Consequential provision, Clause 7 Interpretation, Clause 8 Extent, Clause 9 Commencement and transitional provision, and Clause 10 Short title.
***
A triumph of hope over experience - by Joshua Rozenberg (substack.com)
The Treaty has to be ratified by both States. The Bill has to pass through Parliament where it seems likely that some changes will be made.
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