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The Safety of Rwanda (Asylum and Immigration) Act

On Friday 25 April 2024, the UK Government’s Safety of Rwanda (Asylum and Immigration) Act 2024 (the Act) received Royal Assent and became law barely four months from its introduction into Parliament by the UK Government. At the same time, the UK’s international agreement with the country of Rwanda, also known as a Treaty was ratified. This means that the treaty has become legally binding upon the two countries. 

Following the announcement of the Act became law, our CEO issued this statement and below is our explainer to how the Act works, our concerns and the human rights implications for people in the UK. 

The background of the Safety of Rwanda Act and Treaty

In 2022, the UK Government announced plans to remove people seeking asylum and safety in the UK to Rwanda, to seek asylum there instead, ending the UK’s legal obligations to those people. At first the UK Government sought to do this mostly through a policy, parts of the new Illegal Migration Act 2023 and an Agreement with the Government of Rwanda setting out a deal for how this would work. When people were issued with removal notices, they asked the UK courts to look at the lawfulness of this decision, including whether being removed would be a breach of their human rights. Read more about the “Rwanda Policy” and Agreement here.   

 

Whilst these cases were happening in the UK, before they were completed, the Government put several people to be put onto a plane to remove them to Rwanda. A request for interim measures was made to the European Court of Human Rights (ECtHR). Interim measures are an order to a government to take (or not take) certain steps when there is an “imminent risk of irreparable damage” whilst a legal case is ongoing. It is not a judgment about the issue in the case.  Read more about interim measures here. The ECtHR issued interim measures in this case which meant the flight did not take off, and the legal processes in the UK were able to continue.

 

The case reached the UK Supreme Court. In November 2023 it decided there were substantial reasons for believing that people seeking safety and asylum in the UK would face a real risk of serious ill-treatment if removed to Rwanda, amounting to a breach of the human right to not be subjected to inhuman and degrading treatment (Article 3 HRA). The Rwanda policy was found to be unlawful on a number of grounds, including UK human rights, and international law.  

In response, the Government did two things to continue with the Rwanda policy: 

  • Firstly, they introduced the Safety of Rwanda Bill to Prliament, providing a legal framework to the policy. This essentially makes it UK law that Rwanda is a safe country to remove people to, irrespective of the factual situation. This is now the law and called the Safety of Rwanda Act.  
  • Secondly, the UK Government made an international agreement with the Government of Rwanda, called a Treaty. This was to make assurances (or promises) that people removed to Rwanda will be safe. This Treaty has now been agreed by the UK and Rwanda. This is different to their previous Agreement, which the UK Supreme Court found did not have the safeguards needed to protect people from serious ill-treatment. You can read more about the background to the old Agreement and the new Treaty here. 

What does the Safety of Rwanda Act do?

The full name of the new law is the Safety of Rwanda (Asylum and Immigration) Act (the Safety of Rwanda Act) 2024, we call it the Act in this explainer. This Act (along with parts of the Illegal Migration Act) mean that people seeking asylum and refuge in the UK can be removed to Rwanda.  

The Act means it is now the law that when assessing a person’s asylum claim, everydecision-maker musttreat Rwanda as a safe country because the law says so. Decision-makers are the people with the authority to grant status to an individual which allows them to remain in the UK, such as Home Office immigration officers. Read more about decision-makers and human rights.  

BIHR are concerned that the Safety of Rwanda Act damages the UK’s human rights legal framework. It does this by disapplying core provisions of the Human Rights Act (HRA,1998) and the European Convention of Human Rights (ECHR, 1950), and undermining key principles, set out below.  

Undermining universal human rights

Universality is a founding principle of human rights law. It means that human rights are for everyone, and that everyone should be protected by those in positions of power. Universality is built into every human right in the HRA. The HRA is itself our UK law that makes real the ECHR Article 1 protections to secure human rights for all people within the UK.

 

However, the Safety of Rwanda Act effectively makes people’s ability to access to their human rights protections here conditional on how they ended up being in the UK. Applying human rights differently to different groups of people undermines the principle of universality. We have raised similar concerns with the Illegal Migration Act.   

Restricting UK decision-makers from considering people’s human rights

Section 3 of the Safety of Rwanda Act disapplies a vital legal duty in Section 3 of our HRA. This duty means that the UK Government and public bodies making decisions about our lives must apply other laws and policies in a way that upholds our rights so far as possible. We call this, “the interpretative obligation” because it means that when officials are applying any other law(s), they have to do so in a way that upholds people’s human rights so far as possible. This applies across to all laws that might impact our lives, for example mental health law, housing law, social care law, education law, welfare law etc. Read more about why this human rights duty is important to people’s lives in the UK.

 

However, the Safety of Rwanda Act disapplies this legal duty. This means it specifically says that when the Act is being applied officials cannot do this in a way that upholds people’s human rights. This removes the overall duty on decision makers, including Home Office officials and the courts, to consider whether a person’s human rights may be at risk if they are removed to Rwanda.

 

This is part of a worrying trend with some recent UK laws. It has already been put into the Illegal Migration Act (section 1(5)) and is also in Victims and Prisoners Bill (Clauses 49 - 52), which is currently going through Parliament. Read more about BIHR’s concerns about the disapplication of the Section 3 duty, which undermines the universal protection of human rights for all people in our letter to Parliament’s Joint Committee on Human Rights.

Undermining the legal effect of interim measures in the UK

As explained above, the ECtHR may issue interim measures, to ensure that a fair trial takes place before any irreversible steps are taken by governments. For the Rwanda plan this was important because it meant that people were not to be removed from the UK until our courts had heard their cases. In the end the UK’s highest court found that removing people under this plan were unlawful.

 

How interim measures work is part of the law on the European Convention on Human Rights, which is negotiated and agreed to by 46 countries including the UK. The ECtHR has said in several cases that countries which are part of the ECHR have to comply with interim measures (see the cases of Mamatkulov and Askarov v Turkey (2005); and Paladi v the Republic of Moldova (2009); the UK is part of the ECHR. The ECtHR has said that in exceptional cases, where it is not possible for a country to follow an interim measure, it is up to that country to show “there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation” (see the case of Al-Saadoonand Mufdhi v the UK (2010)).

 

However, section 5  of the Safety of Rwanda Act says that it is up to Ministers in the UK Government to decide whether the UK will comply with interim measures. It says that courts and tribunals must not consider any interim measures from the ECtHR about a person’s situation when making a decision about removing them to Rwanda.

 

In March 2024, before the Act became law, it was reported that the FDA, the union for senior civil servants, is considering legal action if the UK Government requires its members to take actions which may breach international law. The FDA said this could include instructing civil servants to not comply with interim measures.  This may develop into a legal case in the UK courts.

Which human rights are at risk?

Several human rights have already been shown to be at risk from the Rwanda plan through the Supreme Court’s judgment. Many of these concerns about removal to Rwanda continue to exist, along with other human rights concerns about how the Safety of Rwanda Act will impact people.

 

The right to be free from inhuman and degrading treatment

 

Previously, the UK's Supreme Court found there were substantial reasons for believing that people seeking safety and asylum in the UK would face a real risk of serious ill-treatment if removed to Rwanda. This risked breaching people’s right to be free from inhuman and degrading treatment, (Article 3 HRA/ECHR). The Supreme Court highlighted a range of evidence on the systemic concerns with the asylum system of Rwanda, which could mean that people are sent back to countries where they have been persecuted and are at risk of future persecution. This is called non-refoulement, and the risk of this happening is why the UK Supreme Court found the policy unlawful in November 2023.

 

It is not clear how passing a UK law (the Safety of Rwanda Act) and an international Treaty change the factual situation in Rwanda, making it safer. The risk of serious ill-treatment remains a concern. For example, the UK Home Office Statement (April 2024) on the Treaty shows that several key provisions around healthcare, safeguarding and legal support – all of which are important to securing people’s safety from serious ill treatment - have not been fully implemented in Rwanda.

 

Section 4 of the Act does allow for a person to make an exceptional claim based on ‘compelling evidence’ about their specific individual circumstances which would make Rwanda unsafe for them personally. This is very limited in the Act, and the Home Office Guidance makes it clear that the Government intends this to be a very high level to reach. We do not yet know what the UK courts will find. This may provide some limited protection against inhuman and degrading treatment for some people. However, the Act no longer allows people to argue that Rwanda is not safe because of the risk of them being removed to another country (refoulment), which is what the Supreme Court case was about. Section 4 of the Act means decision-makers cannot consider if this is a real risk for a person.  

 

The right to private and family life, home and correspondence

 

The Safety of Rwanda Act is likely to interfere with people’s right to private and family life (Article 8, HRA) in a number of ways. For example, this right includes people’s rights to be with their family members, this can include those seeking safety in the UK because they have established family member here they can join. The right also includes authorities respecting and protecting people’s physical and mental wellbeing.

 

Unlike Article 3, this right is not absolute, and can be restricted only if the authorities can show it meets the 3 tests of (1) lawful, (2) legitimate aim, (3) proportionate. In BIHR’s experience the issue of proportionality is often key, it means doing the action least restrictive of the person’s human rights. Removal to Rwanda would clearly disrupt this right for the person removed, and any family members remaining, including British citizens.

 

The right to be free from discrimination

 

The right to non-discrimination (Article 14, HRA) may also be relevant here. This right protects people from worse treatment by officials, on the basis of particular statuses or characteristics. These include not treating people worse due to nationality, ethnicity and language. There may be particular human rights issues with the Safety of Rwanda Act, for example, if it is used to remove people from particular nationalities or where removals take place without people being given information in a language they understand.

 

Other human rights

There may be other human rights that are impacted by the Safety of Rwanda Act. For example, Article 13 ECHR, guarantees the right to an effective remedy. This means that people should have access to a national authority that can determine whether their human rights have been risked or breached. The ECtHR has said that Article 13 ECHR requires independent and rigorous scrutiny of any arguable claim that removal of a person to another country would expose them to a risk to life (Article 2 HRA/ECHR) or of inhuman treatment (Article 3 HRA/ECHR) (see the case of M.S.S. v. Belgium and Greece (2018)). It is unclear whether the measures for considering individual exceptional cases explained above will be enough to meet this requirement.

Declaring the Act incompatible with human rights?

When the UK government introduced the Safety of Rwanda Bill it was unable to issue a Section 19(1) statement under the HRA that says its proposed law is compatible with human rights. Instead, it had to issue a Section 19(1)(b) statement which said that the law’s provisions may not comply with human rights law. Watch our video on Section 19 statements here.

 

A Section 19 statement is a political statement, not a legal one. Once a Bill has been passed by Parliament and becomes the law, Section 4 of the HRA allows for the possibility of the UK’s higher courts to issue a Declaration of Incompatibility (DOI) when a person brings a legal case challenging the compatibility of a law with human rights.

 

The Safety of Rwanda Act is now law, and whilst it does disapply some parts of the HRA, it does not prevent a UK court from issuing a DOI under Section 4 of the HRA. This means it may be possible to seek a DOI stating that the Act is not compatible with human rights. However, a DOI does not change the law – only Parliament can do that – so if one was issued, the Safety of Rwanda Act would remain the law until Parliament changed it.

 

A DOI does open up the possibility of a Government Minister and Parliament taking action to change the law in response to the compatibility. For example, under Section 10(2) of the HRA, the relevant Government Minister could make an order to change the law “as he considers necessary to remove the incompatibility” and the matter can be taken up in Parliament. Such an action could be under the current Government and Parliament, or the next one following a General Election. A DOI may also be an important consideration if a case on the Act is taken to the ECtHR.

Please note, BIHR cannot give legal advice or support to individuals. If you are seeking help, please visit this section of our website with some suggestions. You can also contact the following organisations who may be able to offer you assistance with issues raised in this blog, and/or signpost you to legal advisers:  

 

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