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Seeking asylum: a one-way ticket to Rwanda?

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Teshé Rolle, a final year student at The University of Law, looks at the government’s relationship with human rights and its much-discussed plans to send asylum seekers to Rwanda

Kigali, Rwanda – Credit: Wikimedia Commons (Adrien K)

The policy for the removal to Rwanda of asylum seekers who have not entered the UK through regular means has been filled with controversy. Since April, there has been a number of developments, both legally and politically. International human rights in the UK has been a controversial topic since the enactment of the Human Rights Act 1998. Since then, although jurisprudence from the European Court of Human Rights is not binding, the UK government seems to have become more and more opposed to observing it and more focused on preserving parliamentary supremacy. This article will explore the UK’s asylum arrangement with Rwanda and outline why it may not be compliant with international human rights law, as well as briefly examine arguments for a British Bill of Rights.

Provisions and aims of the policy

On 14 April 2022, Prime Minister Boris Johnson, who has since resigned, announced plans to implement The UK-Rwanda Migration & Economic Development Partnership (the Rwanda policy). Under the policy, unauthorised adults present in the UK after 1 January 2022 will be considered for removal to Rwanda based on the strength of each case and the method of migration. Factors regarding the ‘strength of a case’ are unknown. Pending removal, individuals will be given five days’ notice. They can seek legal advice, but there is no statutory right to appeal. Upon removal, they will be subject to Rwandan immigration law and encouraged to obtain refugee status. Lastly, they will have no immediate right to return to the UK.

Overall, the government claims the policy will reduce immigration costs and deter the “business model of criminal gangs”. Additionally, Home Office Secretary Priti Patel stated the policy would strengthen border control which protects national sovereignty. The significance of that statement and its ramifications will be analysed later in this article. For now, the alleged financial benefits of the Rwanda policy will be briefly discussed.

As of April 2022, the UK government spends approximately £1.5 billion per year on asylum costs, including approximately £4.7 million per day on hotels for asylum seekers. In contrast, the UK Government pledged an economic transformation and integration fund for the new policy of £120 million, along with additional operational costs. However, as indicated by Matthew Rycroft, permanent secretary for the Home Office, there is actually no current evidence to suggest that the Rwanda policy will reduce immigration costs, or act as a deterrent in any form.

In addition to appearing unable to meet its aims, the Rwanda policy was immediately opposed by many politicians, lawyers, and activists.

Challenges to the policy via international law

Controversy and alleged human rights violations in Rwanda

Criticism of the Rwanda policy has been widespread. Former Prime Minister Theresa May stated that she does not support the policy on the grounds of “legality, practicality and efficacy”. Some other noteworthy individuals who expressed their shock and disapproval included Prince Charles, who allegedly described the policy as “appalling”, and Enver Solomon, chief executive of the Refugee Council, who argued that the policy would “do little to deter people from coming to the UK”.

Patel and Johnson claimed that criticisms are based in xenophobia and stereotyping, with Johnson asserting that any plans to legally challenge the removal of persons to Rwanda came from politically motivated lawyers. However, said criticisms reflect the UK’s previous position on human rights violations in Rwanda. Just last year at the 37th Session of the Universal Periodic Review, a periodic assessment of human rights records of UN member states, the UK issued a statement expressing grave concerns about Rwanda’s human rights. Recommendations included investigations into alleged extrajudicial killings, torture, and more.

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Critics of the Rwanda policy are against the disregard of serious human rights allegations for the sake of potentially saving money on immigration costs and the desire to preserve national sovereignty through border control. Xenophobia or racial stereotyping play no part in the very real and jarring concerns surrounding this issue.

Challenges to the policy via international law

The main legislative challenges to the policy are the 1951 Refugee Convention, the 1967 Protocol, and the European Convention on Human Rights.

The 1951 Convention provides that refugees are entitled to certain rights like the right to education, and also subject to obligations to their host government. Most importantly, the Convention establishes the principle of ‘non-refoulment’, which means that no migrant can be placed in a country where they would receive irreparable harm. The subsequent 1967 Protocol increased the number of persons eligible to apply as refugees by removing the previous limitations under the original Convention. The European Convention on Human Rights contains Articles that guarantee rights and freedoms, and places obligations on states for countries part of the Council of Europe. Relevant provisions include Article 2 on the right to life, and Article 3 on the right not to suffer torture or inhuman or degrading treatment or punishment. Articles 2 and 3 are known as absolute rights, meaning that they cannot be interfered with or justified in any way.

The provisions outlined above should be applied without discrimination. However, the Rwanda policy appears to create a double standard. The UK has opened its borders to Ukrainians fleeing human rights abuses. While this honours moral considerations and international human rights law, persons of other nationalities that face removal to Rwanda are also likely to have experienced serious human rights abuses. Individuals of different races or religions are therefore more likely to experience cruel treatment under the Rwanda policy, which can be viewed as discrimination.

Asylum arrangements with Rwanda in different jurisdictions

The UK is not the first jurisdiction to attempt to implement an offshore asylum policy. Australia first introduced its ‘Pacific Solution’ involving offshore asylum arrangements for asylum seekers to be relocated to the Republic of Nauru and Papua New Guinea in 2001. It resumed again in 2013, and despite experiencing similar controversies as the UK, not only reduced immigration costs — but appeared to dramatically reduce the number of migrants arriving via boat. The data does not appear to tell the full story, though.

Despite a decline in boat crossings, the asylum policy was plagued with rioting, hunger strikes, violence, and even the alleged killing by guards of an Iranian asylum seeker. In an interview for Open Democracy by Guy Aitchison, several current and former detainees from Australia’s offshore asylum policy relayed their horrific experiences: one refugee recalled going on hunger strike “just to die” after the severe torment. Others recounted the deaths of their fellow detainees due to medical negligence, and described the system as “barbaric” and designed to “strip people of their humanity”. Instances such as this could violate Article 3 of the European Convention on Human Rights, the 1951 Convention and the 1967 Protocol.

Israel also had an offshore asylum arrangement. Although it was never officially announced, the ‘voluntary departure’ scheme sent around 4,000 Eritrean and Sudanese migrants to Rwanda and Uganda between 2013 to 2018. The migrants were reportedly given vague reasons regarding removal to Rwanda, and upon arrival allegedly had their papers taken from them before being driven to a guarded hotel and prevented from leaving.

Evidently, as claimed by Aitchison in his article, “offshore detention gives license to special forms of abuse, existing beyond proper legal checks and scrutiny”. The migrants subjected to offshore asylum policies may become victims of flagrant abuses and violations that their host states should have safeguarded against.

How has the UK government tried to justify the legality of the Rwanda policy?

The first flight removing an initial set of migrants to Rwanda was due for take-off on Tuesday, 14 June 2022. Several asylum seekers unsurprisingly applied for an urgent injunction to stop the flight and any future flights until a full judicial review hearing on the policy which was not due to occur until July. The High Court refused the application, the Court of Appeal dismissed the subsequent appeal, and finally, the Supreme Court dismissed the appeal.

Nevertheless, in a last-minute legal battle, the European Court of Human Rights (ECtHR) made an interim measure requiring that the applicant could not be removed to Rwanda until three weeks after the final decision regarding judicial review of the policy.

There have been many instances where the ECtHR has made more liberal decisions than the UK courts. The contrasting judgments have been a source of academic debate for years. A proposed solution that has been heavily periodically debated is a British Bill of Rights, which would eliminate the need to observe the ECtHR’s decisions as closely. Interestingly, shortly after the ECtHR’s ruling on the removal flight to Rwanda, the debate around a British Bill of Rights sparked up again. Directly referencing the ECtHR’s decision, Dominic Raab, deputy Prime Minister, claimed that a British Bill of Rights would increase the UK’s sense of freedom and add “common sense” to the system.

However, despite also claiming that the European Convention on Human Rights will still be observed, granting parliament even more exclusivity and power to prioritise parliamentary supremacy is not a democratic solution to contrasting views on human rights. While the interests of the public and the UK’s values must be protected, as evidenced by the Rwanda policy, international checks and balances are necessary to safeguard individual’s rights.
In conclusion, the Rwanda policy, like similar arrangements with other jurisdictions, may violate international human rights laws and should be discontinued. In the interim, we await the full judicial review hearing to investigate its legality later this month (July 2022).

Teshé Rolle is a final year student at The University of Law. She aspires to qualify as a barrister and is interested in human rights law, criminal law, and employment law.

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13 Comments

Anonymous

Disgusting and illegal policy. Rita Patel should be ashamed of herself.

Alan

What law was broken? I’ll wait.

The government's policy helps real refugees

The government’s policy actually supports refugees by stopping economic migrants from abusing the asylum system.

I personally left a country during a civil war to live abroad and yet I support the government’s policy. Why?

Asylum is meant support those fleeing a war (e.g. Ukraine) or political persecution (e.g. Hong Kong). Those who are looking for better economic opportunities in the West and use the asylum process to do so are abusing the system and reducing the number of places available for actual refugees. They are also turning public opinion against genuine refugees and hurting their prospects for integration once they are here.

Having come from a very poor country myself, I have a lot of sympathy with people who want to come to the UK for better economic prospects. And perhaps we should be more open to economic migrants (although we have to acknowledge that the type of welfare state we have with the NHS, state pensions etc. cannot work if we have open borders so there are real trade-offs to consider). But lets be clear: economic migrants are not refugees and if they apply for asylum, they are abusing the system. And the real victim are actual refugees.

Furthermore, those crossing the English channel to come to the UK are already in France, a safe, rich, liberal democracy. When they choose to travel further, they are simply shopping for an ideal location. This, again, makes it harder for genuine refugees who don’t have access to any safe country.

The reality is that economic migrants who choose to travel on to the UK when they are already in a safe EU country are both breaking the law and making it harder for real refugees who need our help. The government is right to crack down on them. If a policy of removing them to Rwanda for processing dissuades economic migrants and reduces this abuse, we should support the policy. It sounds politically incorrect to say this but I am happy to be politically incorrect if it means more real refugees have a better chance of finding shelter here.

Teshé Rolle

Hello,
Thanks for your comment. I appreciate your perspective, especially as someone that had to emigrate due to a civil war. However, proper attention must be given to human rights and the legislation, both internationally and domestically- that protects these rights. Illegal status or not, this policy contains no safeguards for the migrants that will be subjected to it. Failed measures in Israel and Australia of similar policies illustrate this perfectly. We can ensure the legality of immigration measures without subjecting individuals to human rights violations.

Teshe Rolle

Hello,
Thanks for your comment. Whilst I appreciate your perspective, I do think that a balance must be achieved with ensuring legal means of migration and proper compliance with international law.
Additionally, statistically, most migrants are not emigrating from France; but are in fact of Iranian nationality. Surely, persons willing to travel through such dangerous means are doing more than shopping for an ideal location- their lives are in danger.
Sources: BBC Report and statistics on migrants’ ages and countries of origin- https://www.bbc.co.uk/news/explainers-53734793

Through France not from it

The claim was not that they are emigrating FROM France but THROUGH it.

Once they are in France they can and should seek refuge in a safe, rich, EU nation like France.

If they are in fact simply looking for safety (and not economic advancement in an English speaking nation), can you explain why they make the onward journey to the UK when they are safe in France?

To make that claim you have to argue that France is not safe. Is that your claim?

If so, does that mean French nationals should have the right to apply for asylum in the UK as well? I know that sounds silly but I am just posing the question to show how it makes no sense for someone who is simply looking for safety to make the dangerous channel crossing once they are in France.

Furthermore, the country of origin is not at issue here. If an Iranian national arrives in the UK on a flight from Tehran, we should very likely grant them asylum because 1. Iran is a theocratic dictatorship where opposition is not tolerated and if this person is in fact opposing the regime, they face unacceptable risks if we return them, 2. the UK is the first safe nation this person has access to.

If, however, that same person travels to France first, they should claim asylum there. If they then make the onward journey from France to the UK they are no longer fleeing persecution but instead looking for a better place to settle. The UK, at that point, has no human rights obligation to allow them in. Refugees have a right to safety, but not at a location of their choosing.

Teshe Rolle

Hello,
I appreciate your feedback. My claim was not that France isn’t safe, and you missed the point of my comment. Regardless of what country they are travelling through; the stipulations of the policy are not in line with international human rights law. That is the bottom line.

Anonymous

Not the OP, but the point I believe the OP is making is not that refugees are French, but that while they may be refugees with legitimate asylum claims, by choosing to continue their journey, despite being in a safe, liberal and prosperous country (France), they are effectively “shopping” where to claim asylum.

I do sympathise in that many people crossing are people with genuine asylum claims (look at the low asylum rejection rates) and while there is no requirement that an asylum seeker apply for asylum in their first safe country, you have to query whether it’s fair for asylum seekers to “shop” and continue travelling despite being in a safe country where they are no longer facing the dangers that caused them to flee (for example, for Vietnamese nationals, who make up 7% of boat crossers in 2021, how did their journey bring them to the UK).

I think it’s disingenuous to point to Rwanda’s non perfect human rights record and say that deporting asylum seekers to Rwanda would be a breach of their human rights. To be fair, I would not want to be an anti-government activist in Rwanda. But the key point, is that we’re not removing persons fleeing persecution from Rwanda to Rwanda (which would be a breach of their human rights).

The UK does have international human right obligations (which are being assessed in the current judicial challenge scheduled for September), but I do think it’s a bit rich and an overreach that, despite all UK courts rejecting the granting of an interim injunction on the basis of the UK governments assurances that any refugees would be brought back if the government lost the case, the ECHR decided to interfere with the UK’s court process and effectively say it did not believe the UK government would comply with a domestic court ruling.

Teshe Rolle

Hi Anonymous,

You make some really compelling points. Although, I do think that describing Rwanda’s record for human rights as ‘non perfect’ minimises the issue; as I outlined in my article, there have been serious allegations of human rights violations in Rwanda. ‘Non-perfect’ does not properly address the seriousness of these allegations, violations or pending investigations. I also think you slightly contradicted yourself when you pointed out the treatment that many activists receive.
Both you and the OP’s comments seem to take a view that centres more on the reasons for migrating than the harm that the migrants would be subjected to. Again, it is my opinion that there would be a serious reason for one to take such drastic measures to travel using illegal routes. It does not necessarily have to be due to the overall reputation of safety of a country- so many factors can play into a decision like that, including conditions that migrants are subjected to by immigration officials. Therefore, you may disagree with what you and OP suspect are the reasons why the migrants left France- this does not mean that the Rwanda policy is compatible with international human rights.

Moreover, the UK’s international human rights obligations are being assessed- especially with the now proposed British Bill of Rights- but by all indications, the UK will remain a signatory to these conventions and protocols, especially the European Convention on Human Rights. I think that the purpose of such international agreements in the first place seeks to hold the UK Government accountable to progression with the development of international human rights, along with helping to enforce the rule of law. Therefore, legally, the ECtHR did not ‘interfere’ with the UK Court’s ruling and exercised their legal jurisdiction appropriately.
Finally, in analysing reports of the judgments of the High Court, and the official judgments of both the Court of Appeal and the Supreme Court in refusing appeals, I found it interesting that little elaboration or evidence was provided on the finding that Rwanda was ‘safe’ for migrants. We must remember that the UK Courts have a duty to interpret the law rather than create policy. In my opinion, the judgments of our domestic courts seemed to have come from this place, rather than critically evaluating the legality of the Rwanda policy, or giving more attention to the risks that migrants would face.

Anonymous

The reason why the UK court judgements were light on commentary on whether Rwanda is safe is because that is being decided at the substantive case in September. The question raised in the High Court (and subsequent appeals) is whether an interim injunction should be granted (i.e. whether or not the migrants could be deported to Rwanda pending the decision in September.

The UK courts found that an interim injunction shouldn’t be granted because (a) the government agreed to bring back any affected persons if they lost the substantive challenge and (b) any purported risks were small compared to the public interest.

My point is, the ECHR overstepped. The question at hand isn’t whether the policy is lawful/a breach of the migrants human rights. The question was whether refusal to grant an interim injunction would breach their human rights.

In blocking the flights, the ECHR (in my opinion) overstepped because it effectively said (a) it doesn’t believe the UK government’s promise to repatriate affected persons and (b) it’s interfering in the national court process before the substantive question at hand has been decided by the UK courts (to be determined in September) when it should be a last grounds of appeal.

Teshe Rolle

True, the September hearing has yet to occur, but there are numerous other organisations, including the UN, that have found that Rwanda is not safe. Additionally, the question that I sought to address was the legality of the policy.

When considering the interim injunction, this question must be addressed first:
– The policy involves removal to Rwanda; that removal is a violation of their rights.
– An interim injunction would have prevented this violation from occurring.
Their refusal, therefore, constituted a breach.
Whilst I understand your view on the jurisdiction of ECtHR and your opinion that they overstepped, it does not reflect principles of established jurisprudence. Factually, under s 3 of the HRA 1998, Ghaidan v Godin-Mendoza [2004], and the mirror principle described in R (Ullah) v Special Adjudicator, the UK courts have a duty to ensure that laws mirror that of the ECHR and to interpret domestic legislation accordingly. Where they do not, the European Court of Human Rights can step in.
The flight constituted a matter of urgency, and I am of the view that it was inappropriate to decide that persons would be repatriated and that the risks were small without giving proper regard to the legislative provisions, numerous investigations, and reports demonstrating that Rwanda would not be a suitable place to relocate the migrants to. Your argument lends itself to the discretion that the ECtHR could have exercised; theoretically, you are correct. But practically, it is the ECtHR’s duty to exercise their jurisdiction to prevent human rights abuses. It has been established that the migrants were likely to experience these abuses. Since the ECtHR granted an injunction, migrants, for now- will not experience torture, harm, or any other violation.

Robert

If somebody is in Ukraine and fears for their life, they get out of Ukraine first and foremost. They head west, to the next country along, and they continue until they get to wherever they decided to go to. They typically can’t sit and wait and carry out a formal application to get to the UK through the official channels – even though that might have fortunately been an option for you at the time. The same would apply to somewhere struck with civil war, unrest, human rights violations, etc.

By virtue of us being an island at the far West of Europe, we have quite a convenient excuse to simply say “but what about country X, Y, Z” on the way here. We take fewer migrants than almost all other nations along the way, notwithstanding the recent expensive and illegal Rwanda nonsense. This country does not want to help people, and it does not welcome people.

Teshe Rolle

Hi Anonymous,

You make some really compelling points. Although, I do think that describing Rwanda’s record for human rights as ‘non perfect’ minimises the issue; as I outlined in my article, there have been serious allegations of human rights violations in Rwanda. ‘Non-perfect’ does not properly address the seriousness of these allegations, violations or pending investigations. I also think you slightly contradicted yourself when you pointed out the treatment that many activists receive.
Both you and the OP’s comments seem to take a view that centres more on the reasons for migrating than the harm that the migrants would be subjected to. Again, it is my opinion that there would be a serious reason for one to take such drastic measures to travel using illegal routes. It does not necessarily have to be due to the overall reputation of safety of a country- so many factors can play into a decision like that, including conditions that migrants are subjected to by immigration officials. Therefore, you may disagree with what you and OP suspect are the reasons why the migrants left France- this does not mean that the Rwanda policy is compatible with international human rights.

Moreover, the UK’s international human rights obligations are being assessed- especially with the now proposed British Bill of Rights- but by all indications, the UK will remain a signatory to these conventions and protocols, especially the European Convention on Human Rights. I think that the purpose of such international agreements in the first place seeks to hold the UK Government accountable to progression with the development of international human rights, along with helping to enforce the rule of law. Therefore, legally, the ECtHR did not ‘interfere’ with the UK Court’s ruling and exercised their legal jurisdiction appropriately.
Finally, in analysing reports of the judgments of the High Court, and the official judgments of both the Court of Appeal and the Supreme Court in refusing appeals, I found it interesting that little elaboration or evidence was provided on the finding that Rwanda was ‘safe’ for migrants. We must remember that the UK Courts have a duty to interpret the law rather than create policy. In my opinion, the judgments of our domestic courts seemed to have come from this place, rather than critically evaluating the legality of the Rwanda policy, or giving more attention to the risks that migrants would face.

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