The Safety of Rwanda (Asylum and Immigration) Act 2024

The Prime Minister recently announced a General Election for 4 July and stated that no removals will take place before the election. That may be welcome news for our clients, languishing in immigration detention, but it is difficult to second guess what will happen next and the process of considering their claims under this Act does not seem to have stalled. There is still a very real possibility of a flight finally taking off.

In any modern liberal democracy, certain basic principles ought to be obvious to the governing executive: adherence to the rule of law, separation of powers and access to the courts to hold those in power to account.

The Safety of Rwanda (Asylum and Immigration) Act received royal assent on 25 April 2024. It was the government’s fervent response to the Supreme Court’s judgment in AAA (Syria) and others v SSHD [2023] UKSC 42, handed down in November 2023, that declared the Rwanda policy as unlawful.

The Supreme Court unanimously held that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment if they were removed to Rwanda.

The UK parliament is sovereign. It may pass legislation that reflects ‘the will of the people’. The government of the day is entitled to consider a court’s ruling, fix what the court said was wrong and then pass laws that could render the judgment redundant.

The concerns

The problem with the Rwanda Act, in my view, is that it does not remedy any of the concerns set out by the Supreme Court. Yes, there is a brand new Treaty with Rwanda that accompanies the Act, which the government will point to. Critically, the UN Refugee Agency’s (UNHCR) position since the Treaty announcement has not changed. The Supreme Court described the UNHCR’s evidence as ‘evidence [that] should have been given particular weight given its remit and unrivalled practical experience of working in the Rwandan asylum system’. The UNHCR’s updated analysis finds that the new UK–Rwanda treaty and the accompanying Rwanda Act remain incompatible with international refugee law.

Circling back to those first principles above, one would hope that a sovereign parliament would build those principles into any law it passes. If the executive were confident that it had ameliorated the Supreme Court’s concerns, it would not have needed to go to such lengths to seriously oust the powers of the judiciary and its ability to scrutinise the ‘new’ evidential/factual position.

The most egregious section states that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country’. The definition of a decision-maker includes the courts.

The courts ‘must not consider’ that Rwanda will: (a) contravene its refoulement obligations, (b) fail to provide fair and proper consideration of an asylum claim, or (c) not act in accordance with the UK–Rwanda Partnership entered into by the UK and Rwanda subsequent to the AAA judgment (“the Rwanda Treaty”). It doesn’t matter if those things aren’t factually true.

This is more than alarming to anyone who has respect for the rule of law, for an independent judiciary and for the ancient, fundamental constitutional right of access to the courts. It is of course deeply harmful to those vulnerable people who are in need of international protection.

Recent developments

This month, we have seen scores of asylum seekers detained in Immigration Removal Centres. The overwhelming majority have strong claims for refugee status or humanitarian protection, being from countries such as Syria, Sudan, Afghanistan and Iran. Vulnerable women have been detained. Many we are seeing in detention are torture and trafficking survivors. They understand what the Supreme Court said about the lack of safety in Rwanda and they are terrified. We are hearing troubling reports of self-harm, hunger strikes and protests. Some detainees have been placed into the care of the ‘ACDT’ team who ‘implements a holistic approach to self-harm and suicide prevention within the broader context of decency and safety’.

Removals to Rwanda may finally happen. The machinery of government is powerful, the obsession with Rwanda is relentless, the millions of pounds of taxpayer’s money has already found its way to the Rwandan state and the Act severely limits the powers of the court to protect individuals.

Room for challenge

However, the legislation does leave open limited ways in which individuals can challenge their removal. There are legal points that can and will be made, which go to the heart of this country’s unwritten constitution and will test the proper construction of the Act. The Act allows individuals to challenge their removal based on ‘compelling evidence relating specifically to the person’s particular individual circumstances’.

It was only back in November 2023, where I stood on the steps of the Supreme Court addressing the media, saying that the judgment was a victory for the rule of law. Six months on, we are bunkered down again, for our clients, gearing up for another challenge to what Lord Anderson described in the starkest terms: the Act which ‘declares Rwanda to be safe (which it isn’t yet) and will always be safe (which is obviously unknowable)’.