The UK-Rwanda Asylum Agreement
In this rolling update on the Rwanda case, we explain the UK Government’s plan to send people to Rwanda, the human rights issues involved, and what UK courts and the European Court of Human Rights have said about it.
Latest update (written 03 January 2024): The UK Government cannot send people seeking asylum to Rwanda because the Supreme Court (the highest court in the UK) said it is unlawful. This is because issues with the asylum system in Rwanda mean there is a risk people's asylum claims will be wrongly refused and they will be sent back to countries where they have been persecuted and are at risk of future persecution. The Supreme Court found that this would breach their human right to be free from torture and inhuman and degrading treatment. The UK Government has since signed a new treaty with Rwanda and is currently trying to pass a new law that would stop the Human Rights Act from applying to people seeking asylum when they are being sent to Rwanda and would also mean that all public bodies in the UK have to treat Rwanda as a safe country. Read our explainer on the Treaty and the Bill.
What is the Rwanda policy?
On Thursday 14th April 2022, the UK Government announced plans to send people seeking asylum to Rwanda if their claim is found to be “inadmissible” under UK rules. At that time, an asylum claim could be found inadmissible if:
- the person had already made an asylum claim in another country;
- the person was previously in a “safe country” and there were no “exceptional circumstances” preventing them from making a claim there;
- or the person had a “connection” to another country and it would have been “reasonable” for them to be returned there.
Once relevant sections of the recently passed Illegal Migration Act take effect, the number of people whose asylum claims could be found inadmissible will rise. This is because, under the new law, anyone who arrives in the UK without permission and who does not come directly from a country where their life and liberty were at risk will have their asylum claim found inadmissible, unless they are an unaccompanied child, survivor of trafficking or given a particular exemption.
The Home Office says 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 UK 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.
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.
What did UK courts say about the Rwanda policy?
People seeking asylum, supported by charities and the union representing Home Office workers, brought a claim against the Home Office raising various issues with the Rwanda policy, including that it breaches human rights by putting people at risk of inhuman or degrading treatment. UK Courts granted them permission to have their case heard but did not grant interim measures to stop the UK Government sending people to Rwanda in the meantime.
The people seeking asylum then appealed to the UK Court of Appeal, the UK Supreme Court and ultimately the European Court of Human Rights for interim measures so that the UK Government could not send people to Rwanda until the hearing in UK courts decided if the Rwanda policy was legal. The European Court of Human Rights granted these measures. Find out more in our explainer on interim measures.
The case was heard by the UK High Court in September 2022 and the judgment was released in December 2022. This judgment said that the Rwanda policy was legal but that the individual decisions of people in the case were not made fairly so those decisions had to be remade based on the facts of each case.
The High Court granted the individual people seeking asylum and the charity Asylum Aid permission to appeal its judgment. They did so and in April 2023, the Court of Appeal heard the appeal. The Court heard a number of arguments but only accepted one: that the High Court did not apply the right test when assessing the risk to people’s human rights. Instead of looking at the Home Secretary’s reasons for thinking Rwanda is a safe country, the Court should have carried out its own assessment. The Court of Appeal did so and decided that there are problems with Rwanda’s current asylum system that mean people may have their claims wrongly rejected and so be sent back to countries where they have suffered and are at risk of further inhuman treatment. This is known as “refoulement” and is a breach of the Article 3 human right to human right to be free from inhuman or degrading treatment. The Court explained that “if the relocation of asylum-seekers to Rwanda under the [Rwanda policy] involves a breach of their article 3 rights it would of course be unlawful as a result of section 6 of the Human Rights Act 1998.” This is because Section 6 places a duty on all public bodies, including the Home Office, to act in a way that respects and protects people’s human rights wherever possible. This means the Rwanda policy as it stands is unlawful as it would risk breaching people’s human rights.
The Court of Appeal granted the UK Government permission to appeal its judgment. The case proceeded to the Supreme Court (the highest court in the UK), which released its judgment on 15th November 2023. The Supreme Court agreed with the Court of Appeal’s ruling and found in favour of the people seeking asylum.
As it made its judgment based on the risk of people having their asylum claims wrongly rejected and being sent to other countries, the Supreme Court did not need to look in any detail at arguments that people would be at risk of inhumane or degrading treatment in Rwanda itself or that the Home Secretary did not consider the risk of refoulement with due care. The Supreme Court also dismissed an argument based on leftover European Union law.
The UK Government tried to argue that “evidence of current inadequacies in Rwanda’s asylum system, and of its past history of refoulement” shouldn’t be used to judge how people seeking asylum would be treated there under the new policy. They said that monitoring arrangements and financial incentives will help improve things. However, the Supreme Court said, “intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice” and the “structural changes and capacity-building needed to eliminate that risk [to human rights] may be delivered in the future, but they were not shown to be in place” yet.
What happens next?
Supreme Court judgments can’t be appealed and governments can’t bring cases against individuals to the European Court on Human Rights. Instead, on 6th December 2023, the UK Government signed a new treaty with Rwanda which it says “addresses [the Court’s] concerns”. This treaty says, among other things, that “anyone removed to Rwanda under the provisions of the treaty will not be removed from Rwanda except to the United Kingdom in a very small number of limited and extreme circumstances.”
The UK Government is also currently trying to pass the Safety of Rwanda (Asylum and Immigration) Bill. It says this is necessary because “we cannot be confident that courts will respect a new treaty on its own.” This Bill would stop the Human Rights Act from applying to people seeking asylum when they are being sent to Rwanda and would also mean that all public bodies in the UK have to treat Rwanda as a safe country, even though the Supreme Court has said that it’s not.
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