Seeking asylum: a one-way ticket to Rwanda?

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

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.

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.