Legislating a lie: the Safety of Rwanda (Asylum and Immigration) Act 2024

In April 2022, the government first announced its plan to send asylum seekers to Rwanda to have their asylum claims processed and determined there. They did this using the inadmissibility policy, which allows the Home Office to refuse to admit the asylum claims of those who had previously been present in or had another connection to a safe third country where they could have claimed asylum, and instead remove them to another safe third country, i.e., Rwanda.

The lawfulness of the initial Rwanda plan was immediately challenged in the courts, leading to the Supreme Court judgment of 15 November 2023 in R (AAA (Syria) and others) [2023] UKSC 42, in which the Lords found that the policy was unlawful as there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill treatment by reason of refoulement, i.e., there was a real risk that Rwanda would return the asylum seekers, either directly or indirectly, to a country where they would be at risk, contrary to international protection law.

The government’s response to the ruling

In response to the Supreme Court judgment, and instead of abandoning the plan, the government ratified the ‘UK–Rwanda treaty: provision of an asylum partnership’ and parliament enacted the Safety of Rwanda (Asylum and Immigration) Act 2024 (‘Rwanda Act’), both of which came into force on 25 April 2024.

The Rwanda Treaty is said to strengthen Rwanda’s ‘end-to-end asylum system’ and, in particular, it reconfirms both parties’ commitment to complying with the Refugee Convention and protection against refoulement. Under the treaty, Rwanda agrees not to remove any person relocated there from the UK to any country except the UK. It is clearly too soon to know whether and how the risks found by the Supreme Court are mitigated by this treaty.

The stated purpose of the newly enacted Rwanda Act is ‘to prevent and deter unlawful migration’. It is not to ensure the safety of those seeking protection, whether in the UK or Rwanda.

Under the Rwanda Act, Rwanda is officially designated a ‘safe country’, meaning a country to which persons may be removed from the UK in compliance with all the UK’s obligations under international law, including the Refugee Convention and the European Convention on Human Rights. It orders that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country’, with decision-makers defined to include both Home Office caseworkers and courts or tribunals. The Rwanda Act also goes further to disapply certain provisions of the Human Rights Act 1998.

The situation now

Asylum seekers now at risk of removal to Rwanda must be considered inadmissible to the asylum system, have claimed asylum on or after 1 January 2022, be over 18 years old, had a ‘dangerous’ or ‘irregular’ journey to the UK, and not have a family with children under 18 with them.

Although decision-makers are prohibited under the Act from challenging removals on the basis that Rwanda is not a safe country in general, the Act does still allow for individual claims that Rwanda may not be a safe country ‘for the person in question, based on compelling evidence relating specifically to the person’s particular individual circumstances’.

But even if there are challenges based on such individual circumstances, the Act goes on to restrict the courts from granting interim remedies that prevent or delay removals unless they are 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. The Rwanda Act refers to the Illegal Migration Act 2023 for examples of ‘serious and irreversible harm’, which include death, persecution, torture, inhuman or degrading treatment or punishment.

In anticipation of last-minute challenges, such as those which led to the failure of the first removal flight to Rwanda in June 2022, the Act also allows for the disapplication of interim measures indicated by the European Court of Human Rights related to a person’s removal to Rwanda.

Conclusion

The passing of the Rwanda Act demonstrates the government’s insistence in persisting with its draconian, divisive and costly policy of removing asylum seekers to Rwanda. In the days since it came into force, there have been numerous reports of the detention of asylum seekers ahead of proposed removals, while further legislative steps have been taken appearing to indicate that certain associated sections of the Illegal Migration Act 2023 may soon come into force.

While the enactment by parliament of the Rwanda Act has no doubt been a significant blow to those of us seeking to uphold the UK’s international obligations to people needing sanctuary, it is not yet the end of the legal battle. Just last week, Asylum Aid has notified the Home Office of its proposed challenge to the lawfulness of parts of the new Safety of Rwanda guidance to caseworkers, which arguably misinterprets the Rwanda Act in respect of the consideration of individual circumstances, while NGOs, charities and legal advisors prepare to bring individual challenges in respect of those being notified of potential removal to Rwanda.

Whether or not the government will succeed in sending the first asylum seekers to Rwanda remains to be seen. If it does, I sincerely hope that such asylum seekers can have their refugee claims processed lawfully and fairly there, contrary to the evidence before the Supreme Court. But given Rwanda may be able to process the asylum claims of a few thousand people at best, it is hard to see how this can ever be determined a ‘success’ in anyone’s interpretation, where we are outsourcing our responsibilities under international law and where there exists no plan for the remaining tens of thousands of asylum seekers continuing to languish in limbo in the UK.