The Rwanda Agreement: A Legal Investigation

In 2022, both Rwanda and the United Kingdom signed a Memorandum of Understanding regarding an Asylum Partnership Arrangement. This specified that a part of the asylum seekers arriving in the UK would be effectively sent back to Rwanda for their claims to be domestically evaluated. The asylum system of Rwanda would not send them back, even if the respective people were to obtain refugee status. This agreement has not been enforced on any individual until now.

Multiple investigations have shown that the Kingdom paid £140 million to Rwanda in April 2022, in connection with the aforementioned agreement.

The Agreement was subject to multiple legal challenges, domestically and in the European Court of Human Rights (ECHR), which the UK is a founding member of. In 2022, an interim application was made to the ECHR regarding a deportation flight that was scheduled to leave on the 14th of June, 2022. An interim measure is a temporary measure that is granted by the Court only in exceptional cases where the applicant may face irreversible harm. One of the applicants, upon arrival in Britain, was evaluated by a doctor, and it was concluded that they may have been the victim of torture. Consequently, the interim measure was issued, preventing the removal of the applicant until a further decision in the UK. 

Upon reaching the Supreme Court, the judges evaluated the legal framework in which the Memorandum was enacted. Firstly, the Home Secretary had the legal right to transfer asylum seekers to a safe third country, if both states consent. Further, the term “safe third country” strictly refers to a state where the principle of “non-refoulment” is respected, meaning that the asylum seekers would not be directly or indirectly returned to a country where they would be at risk of torture, their freedoms would be threatened, or they would be subjected to discrimination. The Home Secretary received assurances from Rwanda, and under the Memorandum, asylum seekers were theoretically protected, but the claimants argue the opposite.

The Divisional Court, the first court that was appealed, decided that some of the removals were procedurally flawed, but rejected any wider change to the policy. The Court of Appeal then observed that there are considerable grounds for potential risk of refoulement for asylum seekers, including that their asylum claims will not be evaluated properly.

In light of plenty of evidence before the Supreme Court, including even the United Kingdom’s previous criticism of Rwandan extrajudicial killings and torture, the following questions were considered:

1. Had the Divisional Court applied the wrong test when considering the risk of refoulement? The correct legal test is evaluating if the grounds for believing the risk of ill-treatment are substantial, based on the evidence that is brought before the court. However, the decision of the Divisional Court suggested that the aim was to determine whether the Home Secretary’s policy was applicable, rather than making a new assessment of the context. 

2. Was the Court of Appeal entitled to interfere with the previous decision of the Divisional Court? This is allowed, as it was found that the lower court had been mistaken in its treatment of evidence, including findings of the United Nations High Commissioner for Refugees. The Divisional Court did not consider the evidence on how the asylum system operates in practice.

3. Is the Court of Appeal entitled to decide these grounds for risk? Seeing the Human Rights situation in Rwanda, the history of refoulement here and Rwanda’s lack of compliance with assurances given in a similar agreement with Israel, the decision was legitimate.

On the 15th of November, 2023, the Supreme Court unanimously ruled upon these questions, deeming the Agreement unconstitutional.

The Prime Minister of the UK later announced that he would be doing “whatever it takes” to move forward with the agreement. Rishi Sunak’s statement follows other politicians’ implied threats that they would seek withdrawal from the ECHR. Suggesting that the Supreme Court was partly influenced by the precedent set by the European Court, there may be a political movement towards withdrawing from the Court’s Jurisdiction, to protest this decision. 

What this can imply is a nullification of any potential ECHR decision regarding the treaty, but it does not prevent it from action in the International Court of Justice. From a political point of view, the United Kingdom may lose credibility and, even worse, the image of a country that defends human rights. Willingly returning people to the environment which the UK itself has criticised for unsafety only suggests that this could be a populist, anti-immigration move for Rishi Sunak to continue expanding on Boris Johnson’s policy. The argument of regaining sovereignty from any sort of international intervention is not new; it has been employed in pro-Brexit discourse. Leaving the ECHR, or even the Council of Europe, would also entail a potential termination of Criminal procedure cooperation, on the European Union’s side, which would significantly strain the UK’s legal capacities beyond its domestic courts. The exercise of “cleaning up” remnants of EU influence may have some British politicians unaware of the Council of Europe being a distinct organisation.

References

Sagoo, R. (2023, March 17). The UK must not sleepwalk into leaving the ECHR. Chatham House. https://www.chathamhouse.org/2023/03/uk-must-not-sleepwalk-leaving-echr

McDonnell, E. (2023, November 15). UK Supreme Court finds UK-Rwanda asylum scheme unlawful. Human Rights Watch. https://www.hrw.org/news/2023/11/15/uk-supreme-court-finds-uk-rwanda-asylum-scheme-unlawful

AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023). (n.d.). https://www.bailii.org/uk/cases/UKSC/2023/42.html