The UK Government's "Safety of Rwanda Bill" passes second reading

The stated purpose of this Bill is “to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by enabling the removal of persons to the Republic of Rwanda for under provisions [in the] Immigration Acts.” The Bill “seeks to confirm the safety of the Republic of Rwanda as a safe third country, thereby enabling the removal of persons who arrive in the UK.” This piece of domestic law is to address the Supreme Court's Rwanda policy decision from 15 November, which said that the Rwanda scheme was unlawful because Rwanda is not a safe country. It is separate to the treaty between the UK and Rwanda.

The Home Secretary signed the treaty with Rwanda on 6 December in order to strengthen the UK and Rwanda’s migration partnership. The joint treaty sets out the details of the plan for removing people seeking asylum from the UK to Rwanda. A treaty is an agreement between governments that is legally binding on the two countries under international law.

The treaty contains significant new safeguards and assurances about how people removed from the UK to Rwanda will be treated, and how their claims to asylum will be handled. As explained by Institute for Government, “it provides that Rwanda cannot send a relocated individual (even if not granted refugee status) to any other country – except back to the UK, if the UK so requests. There is also to be an independent monitoring committee, a joint committee to discuss best practice, and a new appeal body.”

R (on the application of AAA and others) v SoS

The Safety of Rwanda Bill follows a decision by the Supreme Court (the highest court in the UK) on 15^th November 2023 that the Government’s Rwanda Policy was unlawful. The decision of the court was unanimous. The court found that there were substantial grounds for believing that problems with Rwanda's asylum system meant there was a real risk that people seeking asylum would have their claims rejected and would be sent back to countries where they may face persecution or other forms or inhuman or degrading treatment. This is known as “refoulement” and would be a breach of Article 3 of the Human Rights Act (HRA) and the European Convention on Human Rights (ECHR). The court said this meant that Rwanda not a safe country and it would not be legal for the UK Government to send people to Rwanda to have their asylum claims heard there. The Supreme Court’s judgment can be found here.

The Safety of Rwanda Bill and the Treaty are both attempts by the UK Government to find another way to make the Rwanda policy work.

The Joint Committee on Human Rights published an initial analysis of the Safety of Rwanda Bill noting it's a “remarkable thing” for a Bill to require courts to conclude that Rwanda is safe after the Supreme Court ruled otherwise, and that this raises difficult questions of constitutional law concerning the relationship between parliamentary sovereignty and other principles. Further to this, the analysis states that if the UK Government was confident of a satisfactory UK-Rwanda Treaty that addressed the Supreme Court's concerns, the Bill would be unnecessary unless the aim was simply to speed up the operationalisation of the policy.

As a human rights organisation at the forefront of supporting human rights practice, we at the British Institute of Human Rights (BIHR) have serious human rights concerns about the Bill.

1. We are concerned about the democratic process. Following the Supreme Court decision, this Bill is being rushed through without proper scrutiny.

Fast-tracked legislation is often referred to as ”emergency legislation” when a Bill passes through all the normal stages but on a sped-up timetable. The Prime Minister indicated this would be used to push through new immigration law in remarks following the Supreme Court’s hjudgment on 15^th November. Legislation can be passed quickly, even within a day sometimes, leaving insufficient time for proper scrutiny.

2. The Bill is another attempt by the UK Government to disapply our Human Rights Act which has important protections for all people, including people seeking safety in the UK.

The Safety of Rwanda Bill is not the first time in recent years that the UK Government has moved to introduce legislation which contains provisions to disapply some parts of the HRA in certain situations. The UK Government is once again trying to remove the duty on decision-makers in the UK to apply other laws in a way that support’s people’s human rights so far as possible. This duty is set out in Section 3 of our HRA and is known as the interpretive duty. The interpretive duty applies to the courts but also to public officials acting under the powers of other laws.

We have seen the disapplication of this duty for certain people in certain situations through the Illegal Migration Act (which is now law) and this is currently being discussed in the Victims and Prisoners Bill (which is not yet law). We have serious concerns that weakening or removing these human rights protections sets a detrimental precedent for the future of human rights. Along with 45 groups, we have raised our concerns about this with Parliament’s Joint Committee on Human Rights because the point of the HRA is that it applies to all people equally and government should not be able to pick and choose which human rights duties it will meet. Read our joint letter on protecting Section 3 here. 

The Rwanda Bill signals something even more worrying in that it is seeking to disapply the duties the HRA places on government and public body decision-makers (Clause 3) – this means there is no duty on public bodies or the Courts to make decisions which give effect to human rights when deciding if Rwanda is a safe country or not. Clause 3 applies in this Bill notwithstanding sections 2, 3 and 6 of the HRA - meaning that that you are allowed to do something even if a provision elsewhere says you can’t. This is unprecedented.

At present, the Bill presents a wholesale exclusion of the HRA and attempts to disapply various sections to the interpretation of this new Bill.

The Bill excludes Section 2 of our HRA, which states that courts in the UK must ‘take into account’ any relevant cases decided by the European Court of Human Rights.

Further to this, the Bill excludes Section 6 of our HRA, which places duties on public authorities, and as a result removes the duty for public authorities to respect, protect and fulfil people’s human rights. Section 6 is key to ensuring everyday decisions of officials still remain rights-respecting and uphold human rights.

3. We are concerned that the Home Secretary has stated the provisions in this Bill are not compatible with domestic and international human rights law.

Section 19 of our HRA requires Government Ministers who want to make a new law to tell Parliament whether or not it complies with human rights. A Section 19 (1) (a) statement accompanying a Bill means that it is the Minister-in-charge’s view that the provisions of the Bill are compatible with the rights in the ECHR and the HRA (“a statement of compatibility”). A Section 19 (1) (b) statement accompanying a Bill means the Minster is unable to make a statement of compatibility but wants to proceed anyway. Parliament's Joint Committee on Human Rights says this is important because it “drive[s] a process within government that ensures human rights concerns are taken seriously.”

The ECHR brief from the Government surrounding the Bill seems to suggest that they believe this does not breach human rights yet, a Section 19 (1)(b) statement was issued by the Government rather than a Section 19 (1)(a) statement. Home Secretary RT Hon James Cleverly made the following statement under section 19 (1)(b) of the HRA:

 “I am unable to make a statement that, in my view, the provisions of the Safety of Rwanda (Asylum and Immigration) Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill."

Parliament can choose to do so proceed with a Bill with a Section 19(1)(b) statement because of the principle of parliamentary sovereignty (that Parliament is the ultimate power in the UK and cannot be overruled). Read more about Parliamentary sovereignty here.

The Government's non-commitment to compliance with international legal obligations is concerning. The Bill also raises difficult questions around constitutional law which concerns the relationship between parliamentary sovereignty and other principles.

4. We are concerned that as a consequence of the above, should this Bill become law, there will be a removal of access to human rights protections for people in the most vulnerable of situations in the UK.

The HRA might be relevant to an asylum or immigration case in a number of ways. Some examples include if you need to stay in the UK because you have family or community ties (the right to private, family life, home and correspondence, Article 8) or if you are seeking asylum on the basis that your life (the right to life, Article 2) or your right to be free from torture or severe harm is at risk in your home country (the right to be free from inhuman or degrading treatment, Article 3). There is also a risk of discrimination where, for example, individuals from the LGBT+ community are placed in a country which has discriminatory laws (the right to be free from discrimination, Article 14).  See more about Migration and Refugee rights.

The below Clauses, individually and combined, increase the vulnerability of people in already vulnerable situations by limiting access to human rights law in asylum claims.

Clause 2(1): "Every decision-maker must conclusively treat the Republic of Rwanda as a safe country." This means there would be no way to challenge the removal of people to Rwanda in UK courts - immigration / border officials would have to implement the policy and so too would courts. 

Clauses 2(3)-(4): prevents courts from reviewing the safety of Rwanda, so even if action was to get to court, they would not be able to make safety findings despite evidence. 

Clause 2(5) very specifically excludes the use of the HRA, or any other domestic law (statutes and common law), being used in court action/review to challenge the safety of the Rwanda for removals. 

On Tuesday 12th December, the House of Commons voted on the Safety of Rwanda Bill with 313 MPs voting for the legislation and 270 against, giving the UK Government a majority of 43, meaning that the Bill will progress to the next stage of the law-making process. Whilst not a single Conservative MP voted against the Bill, 37 either abstained or were absent.

On presenting the Bill, Home Secretary RT Hon James Cleverly spoke of the rule of law (the unanimous decision of the highest court in the UK) and the Rwanda plan as one or the other, the justification for choosing the latter being the will of British people.

“In recent years, some of the Government’s efforts to tackle illegal migration and deport foreign national offenders have been frustrated by a seemingly endless cycle of legal challenges and rulings from domestic and foreign courts. Of course, this Government respect court judgments, even when we disagree with them, but Parliament and the British people want an end to illegal immigration and they support the Rwanda plan.”

A YouGov poll the day after the vote revealed that the most popular answer among Brits who responded was to scrap the Rwanda plan altogether.

You can find the full House of Commons debate here.

• For a Bill to become a law (or an Act), there are a number of stages that have to be followed. Find out how laws are made.
  
  
• The Joint Committee on Human Rights will scrutinise the Safety in Rwanda Bill following the release of their Briefing Paper setting out their initial human rights concerns.
  
  
• BIHR supported the ILPA Justice and Freedom from Torture Joint Briefing ahead of the second reading in the House of Commons.

• Write to your MP and tell them you’re seriously concerned about the Bill’s impact on human rights in the UK.
  
  
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