The Safety of Rwanda (Asylum and Immigration) Bill and the Supreme Court’s decision

On 12 December 2023, the Safety of Rwanda (Asylum and Immigration) Bill 2023 passed at its second reading in the House of Commons. Following the Nationality and Borders Act 2022 and Illegal Migration Act 2023, this is another proposed legislative change in quick succession intended to achieve the government’s aim of reducing the number of asylum seekers who arrive in the UK on small boats.

The context of the Safety of Rwanda Bill is the Supreme Court decision on 15 November 2023 declaring the Secretary of State’s policy of removing certain asylum seekers to Rwanda unlawful. That decision was focused primarily on the question of non-refoulement, which is the principle of not returning asylum seekers to the country from which they face persecution. The Supreme Court found that there was a substantial risk that refugees removed to Rwanda from the UK would not have their asylum claims dealt with properly and would instead be sent back to their home countries. As this would amount to refoulement, the policy was declared unlawful.

The response

The government’s response to that decision has been two-fold. Firstly, the government agreed a new Treaty with Rwanda, which it states addresses and deals with the Supreme Court’s concerns regarding non-refoulement. The government has also issued a policy statement, asserting that the situation in Rwanda has changed materially since the summer of 2022, when the policy was first challenged.

Secondly, it introduced this Bill, which places a statutory duty on all decisionmakers dealing with removal decisions to treat Rwanda as a safe country. It also removes the jurisdiction of the courts and tribunals to consider a review of, or appeal against, a decision regarding removal to Rwanda to the extent that it is brought on the basis that Rwanda is, in general terms, unsafe. Specifically, they are not to consider any claim on the basis that: Rwanda may remove that claimant to another state in breach of its international obligations; the claimant will not receive a fair and proper consideration of their asylum claim in Rwanda; or that Rwanda will not act in accordance with the Treaty agreed with the UK government.

In some ways, the Bill appears to implement pre-existing concepts in the specific context of Rwanda. For example, the Nationality, Immigration and Asylum Act 2002 defined ‘safe States’ and listed countries which were to be treated as either definitively safe for the purposes of considering asylum claims, or where the claims are likely to be unfounded. Immigration and asylum legislation has also restricted the jurisdiction of the courts and tribunals in the past.

The detail

However, what is most striking is that the central thrust of the Bill – that Rwanda is to be treated as a safe country – directly contradicts the factual findings of the recent Supreme Court decision. Despite leaning on the new Treaty and asserting that the Rwandan government has made strides to improve the situation on the ground, the Bill bars the courts and tribunals from determining that question for themselves. The rights of asylum seekers to seek redress in the courts or tribunals has been restricted. It is notable that the Secretary of State was unable to state in the Bill that it is compatible with the European Convention on Human Rights.

Conclusion

Immigration is a highly political area of law, and the government aims to reduce the number of asylum seekers. Their approach has been deterrence by restricting the rights of those asylum seekers who do arrive in the UK, removing them rather than process their claims. In their policy statement, the government states that this action is necessary due to the cost of accommodating asylum seekers. Practitioners in the area will know that the reason behind these costs is the dramatic slowdown in processing times. Seven years ago, asylum cases were routinely decided within six months; now it is common for cases to be pending for 18 to 24 months. The Home Office has expended effort defending litigation which would have been better spent deciding pending cases and reducing the enormous backlog. Instead, the government has introduced legislation which states that if judges will not declare that removing asylum seekers to Rwanda is safe, then they should no longer have the jurisdiction to consider the issue.

Andrew Jones is a solicitor at Wesley Gryk Solicitors LLP
gryklaw.com