BIHR Explains: The Rwanda Policy & ECtHR Case On Tuesday 14th June 2022, the European Court of Human Rights (ECtHR) told the UK Government it cannot send asylum-seekers to Rwanda until after a hearing in July that will decide whether its policy is lawful. We’ve written a summary of what’s happened so far, what might happen next and the relationship between the ECtHR and UK human rights law. What is the Rwanda policy? On Thursday 14th April 2022, the Government announced plans to send people seeking asylum to Rwanda if their claim is found to be “inadmissible” under UK rules. An asylum claim can be deemed “inadmissible” if: you’ve made an asylum claim in another country; you were in a “safe country” and there were no “exceptional circumstances” preventing you from making a claim there; or you have a “connection” to another country and it would be “reasonable” for you to be returned there. The Government said it will consider sending everyone who “comes to the UK illegally, or by dangerous or unnecessary methods from safe countries” to Rwanda. In December 2021, the Court of Appeal said the Home Office was wrong to say that asylum-seekers who arrive in the UK to make a claim are acting unlawfully – even if they arrive by small boats. The Immigration Act 1971 does not criminalise “arriving” without permission. The Government has since passed the Nationality & Borders Act, which makes “arriving” without permission an offence. However, this clause has not yet come into force – meaning the law has not yet changed. Refugee Council also points out, “for the vast majority of refugees, there is no safe way for them to seek asylum in the UK.” The number of people who can be sent to Rwanda is “unlimited” and the rules will also be backdated, so anyone deemed to meet the criteria who arrived since 1st January 2022 will be considered for relocation. However, the Government has said people will not be relocated overseas where there is a risk of persecution or a breach of their Article 3 right to be free from torture and inhuman and degrading treatment under the Human Rights Act. This is because this right is absolute; it is never lawful to subject people to such treatment, including sending them to another place where this will happen to them. The Home Office has confirmed that “the UK’s legal obligations end once an individual is relocated to Rwanda” meaning the Rwandan Government, rather than the UK Government, will be responsible for their asylum claim. Why has it been controversial? The policy has been criticised by organisations such as the Refugee Council, who said “sending people seeking asylum to be processed abroad will do absolutely nothing to address the reasons why people take perilous journeys to find safety in the UK. It will do little to deter them from coming to this country, but only lead to more human suffering and chaos – at a huge expense of an estimated £1.4 billion a year.” The partnership has also been criticised by MPs. Questioning the Home Secretary in the House of Commons, Joanna Cherry QC, Scottish National Party MP for Edinburgh, said, “only last year, on at least two occasions at the United Nations, the United Kingdom called for an investigation into torture, deaths in custody, extrajudicial killings and forced disappearances in Rwanda.” There have also been questions about whether it is legal. Under the Nationality, Immigration and Asylum Act 2002, a person can’t be removed from the UK while waiting for the outcome of their asylum claim. However, Schedule 3 says they can be removed provided: the country a person is sent to does not threaten their “life and liberty” because of a protected characteristic (race, religion, nationality, membership of a particular social group or political opinion); and sending them there won’t breach the Refugee Convention. The Nationality & Borders Act also says a person can be removed under these conditions provided their Convention rights won’t be breached. However, this new part of the law doesn’t come into force until Tuesday 28th June 2022. What legal challenges have been brought? The most significant case has been brought against the Home Office by Detention Action, Care4Calais, PCS Union (representing people who work at the Home Office) and a number of individual asylum seekers (together referred to as “the claimants”). In July, there will be a hearing to decide if the policy is lawful. All the hearings up until now have been based on “interim injunctions” (ie orders telling someone to do or not to do something until legal proceedings are finished). People seeking asylum have asked the courts to tell the Home Office not to send anyone to Rwanda before the July hearing. They argued, among other things, that it might breach people’s human rights to be free from torture and inhuman and degrading treatment. You can read a full timeline of the hearings so far here. The request for injunctions was by refused by the High Court, the Court of Appeal and the Supreme Court – which is the highest court in the UK. However, because the UK is signed up to the European Convention on Human Rights (ECHR), the people at risk of removal were able to take their case to the European Court of Human Rights (ECtHR). This is separate to the European Union and only hears cases concerning whether a government has breached someone’s human rights. Before our Human Rights Act was created, this was the only court people in Britain could take their human rights cases to, but people can now have them heard in national courts first. On Tuesday 14th June 2022, the European Court of Human Rights issued “interim measures”, which is where the Court tells a government to take certain steps while an issue is looked into. The Court will only grant these measures where “there is a real risk of serious and irreversible harm.” The Court told the UK Government not to send people to Rwanda until after the July hearing. They made this decision in light of the risk of the claimants’ human rights being breached, particularly because Rwanda isn't signed up to the European Convention on Human Rights so doesn’t legally have to protect these rights. The Court also pointed out there is no “legally enforceable mechanism” for the claimants to be returned to the UK if they win the July hearing. This means no-one was sent to Rwanda on Tuesday 14th June 2022. It is important to note that the ECtHR has not decided whether the Rwanda policy is lawful; that will be decided at the hearing in July. The ECtHR has just told the UK Government it cannot send people to Rwanda until then. Separate legal challenges were brought by Asylum Aid and Freedom from Torture among others. You can read about these here. What happens next? The Secretary of State has said “preparation for the next flight begins now” while the Work and Pensions Secretary has said “we will go back, I am sure, to the ECHR to challenge this initial ruling.” However, at the moment it is “believed…there is not a route for the Home Office to appeal against the decision”. This means the next significant step will probably be the hearing at the High Court to decide if the policy is legal. This is expected to be in July but there is not a fixed date yet. On the 14th June, ITV News asked the Prime Minister if he planned to pull out of the European Convention of Human Rights as a result and he said it “may very well be…necessary to change some laws”. This is despite the UK confirming its commitment to the Convention a number of times, including in the EU-UK Trade and Cooperation Agreement (also known as the Brexit Trade Agreement). The Government also said in its recent consultation on Human Rights Act reform (you can find our work on this here) that it “remains committed to the European Convention on Human Rights – and, indeed, the UK’s tradition of human rights leadership abroad.” Yet the Prime Minister’s statement calls this commitment into question. This inconsistency is somewhat unsurprising; like our CEO, Sanchita, says: “human rights law, is about power and people. It is about putting limits on the power of the Government and public bodies. It is about empowering ordinary people. It is about ensuring accountability so that the no one, including the Government is above the law. So of course, all governments will find human rights law inconvenient at times – let’s face it, few of us respond well to being told when we can’t do something we want.” Hear more from Sanchita about the Rwanda policy and BIHR’s response here. With the Government insinuating that it might make further moves to weaken our human rights in the UK, it’s more important than ever to stand up for our Human Rights Act. Use our template letters to write to your MP and ask them to commit to standing with us.