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Implications of the UK’s Safety of Rwanda Bill on the Rule of Law




By Natalie Koh


The United Kingdom proposed a relocation treaty with Rwanda under the UK-Rwanda Migration and Economic Development Partnership Plan (MEDP)[1] in April 2022. This arrangement allows the United Kingdom to relocate asylum-seekers and illegal immigrants deemed ‘inadmissible’ under the Illegal Migration Act 2023[2] to Rwanda, where they will be granted asylum or permanent residence. The introduction of this policy has precipitated strong contention from both asylum seekers and the Courts. This article focuses on the different actions of the government, particularly the decision to introduce fast-track legislation designed to render relocation arrangements lawful, and analyses its implications on the Rule of Law.

 

Judicial Background

Asylum seekers challenged paragraph 345A to 345D of the Immigration Rules, which set out that the Secretary of State could decide (a) if the claims of asylum-seekers were ‘inadmissible’, meaning that a claim should not be decided on its merits in the United Kingdom, and (b) decide if Rwanda is a safe country within the meaning of paragraph 345B. Those subject to the inadmissibility and removal decisions contended that it was a breach of human rights under the European Convention on Human Rights (ECHR) and that the claim that Rwanda was a safe country was legally flawed. 

 

These claims were brought to the divisional court on generic grounds of challenge. The specific contention of whether the assessment that Rwanda is a safe third country is legally flawed, turned on two key issues, (i) whether the Home Secretary had satisfied the obligation under Article 3 of the ECHR ‘to conduct a thorough examination of the relevant conditions in the third country concerned and, in particular the accessibility and reliability of its asylum system’ as per the Strasbourg Court in Ilias and Ahmed[3], and (ii) whether there was sufficient assurance that persons removed to Rwanda would not be put at real risk of suffering ill-treatment or refoulement as guaranteed by the UNC 1951 Status of Refugees[4] to which the United Kingdom is party, and in Othman v United Kingdom (2012)[5].

 

The divisional court held that the inadmissibility and removal decisions were to be quashed given procedural flaws, but rejected the wider challenge that the Secretary of State’s policy was unlawful as the obligations identified in Ilias was satisfied and that the Secretary of State had been entitled to rely on the assurances provided by the Rwandan government. The contention of exercising discretion on whether individual cases are ‘inadmissible’ or should be subject to removal also turns on an important rule of law issue: transparency. Laws must be clear, precise, affordable and accessible, such that those subject to the rule of law have predictability and certainty. Where legal basis of decisions are obscure and unclear, as with the decision-making process for ‘inadmissibility’, the selection process could be discriminatory.

 

The case was then brought to the Supreme Court which held that relocating asylum seekers to Rwanda would be unlawful despite the assurances of non-refoulement by the Rwandan government and that the UK government would be in breach of ‘protections against torture, inhuman and degrading treatment’ under the s6 of the Human Rights Act (HRA) 1998[6]. The Supreme Court’s decision was based on substantial grounds of evidence for believing that asylum seekers who were removed to Rwanda would face a real risk of ill-treatment by refoulement, including findings of previous breaches of treaties of refoulement such as Rwanda’s 2013 and 2018 arrangements with Israel. The Supreme Court[7] also emphasised that the principle of non-refoulement is given effect by the ECHR and other international conventions to which the United Kingdom is party, ‘[the principle of non-refoulement] is a core principle of international law, to which the United Kingdom Government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law’. 

 

The Safety of Rwanda Bill

The Supreme Court ruled that the deportation of asylum seekers to Rwanda was unlawful because Rwanda is not a safe country for asylum seekers. In response, the government introduced the Safety of Rwanda Bill[8] which explicitly requires domestic courts to treat Rwanda as a safe country, regardless of the factual evidence and the situation on the ground in Rwanda, now or in the future (clause 2(1)), and disapplies parts of the Human Rights Act, allowing the government to disregard interim measures granted by the European Court of Human Rights (ECtHR) (clause 3(1-6)).

 

By disregarding and attempting to substitute the outcome of the Supreme Court through the creation of new law, the bill may offend both the separation of powers and rule of law. Effectively, it reverses the Supreme Court’s judgement and removes the ability for courts to scrutinise the legality of government decisions. This brings to fore tensions in the relationship between Parliament and the courts and raises the pertinent question: how does the rule of law support parliamentary sovereignty, or is one doctrine more fundamental to the English constitution?

 

An important tenet of the English constitution is the rule of law, which shapes British public decision-making and restrains arbitrary applications of parliamentary sovereignty[9]. The Supreme Court, in ruling to dismiss the appeal based on well-founded evidence and through the strict application of the law, performed its institutional function by upholding equality before the law through judicial review and ensuring access to justice and fundamental human rights as per the European Court of Human Rights (ECHR). It also upheld the role of judicial review, which ‘ensures that the executive acts only according to law’[10]. The government’s decision to override decisions made by the Court, which are judicial checks-and-balance to the exercise of executive power, through passing Parliament-made legislation, in my view, demonstrates a profound lack of respect for the rule of law and the separation of powers. 

 

I would like to discuss a further contravention of the rule of law as per clause 2(3) of the Bill which operates as an ouster clause stating that ‘(it) removes the ability of a court or tribunal to consider a challenge to such a decision to the extent the challenge is based on the grounds that the Republic of Rwanda is not a safe country’. The use of an ouster clause has an impact on the rule of law – with only tightly constrained permitted individual challenges, the ouster clause comes gravely close to being a blanket ban on reviews of judicial scrutiny and gives parliamentary executives not only the power to be arbiter on factual matters and difficult issues of law, but also the ability to enact provisions to give effect to their decisions. The removal of judicial oversight on the lawfulness of conduct when operating policies is a clear infringement of the rule of law.

 

The unlawfulness of ouster clauses was examined in Privacy International v Investigatory Powers Tribunal [2019] UKSC 22[11]. Section 67(8) of the Regulation of Investigatory Powers Act 2000[12] which purported to exclude from challenge or appeal any decision of the Investigatory Powers Tribunal was challenged in court, where the Supreme Court read down the ouster clause to the effect that it did not exclude judicial review; ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’ per Lord Carnwath. This case sets precedent for the demarcation of the boundaries of power that should reside in each branch of government which clause 2(3) of the Bill fails to uphold. Similarly, in R (Jackson) v Attorney General[13], Baroness Hale emphasised that ‘the courts will treat with particular suspicion any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’. The implicit challenge that the Bill poses to the constitutional balance of powers in the UK is also reflective of an uncodified constitution that relies heavily on respect and management of relationships between executive, legislature and the courts.

 

The powers in the Safety of Rwanda Bill that disapplies key provisions of the HRA (clause 3(1-6)) effectively amounts to a domestic derogation from the ECHR and indicates a reluctance of the UK government to uphold fundamental human rights through international law. The Human Rights Act is a parliamentary statute that gives effect to the obligations of States to protect human rights under the ECHR, including through the domestic courts. The disapplication of the HRA means that domestic courts may no longer give effect to the ECHR.

 

For instance, clause 3(4) of the Bill disapplies section 3 of the HRA, which requires that all legislation must be read and given effect in a way which is compatible with the Convention rights so far as it is possible to do so, essentially indicating that the Bill must be read and given effect only in the manner in which Parliament has provided. While the Bill does not disapply section 4 of the HRA and allows courts to make declarations of incompatibility with the ECHR, however, such declarations do not affect the validity or operation of legislation in question and would not prevent asylum seekers from being removed to Rwanda. Secondly, the Bill also breaches article 31(3)(b) of the Vienna Convention on the Law of Treaties and the Refugee Convention, which the UK is party to. To the extent of non-compliance of the Bill with a sizable proportion of the UK’s obligations under international human rights law, there is clear violation of the rule of law. Per Lord Bingham, the rule of law ‘requires compliance by the state with its obligations in international law as in national law’[14], the UK government’s defiance of the authority of the ECHR by passing a bill which increases the risk of people to torture weakens the UK’s status as a democratic stronghold. 

 

The Safety of Rwanda Bill requires very careful consideration by Parliament before it progresses. The Bill, sails very close to the wind in terms of what is acceptable from a rule of law and ECHR perspective. The ultimate outcome of the bill in parliament and the government’s subsequent actions will be a strong indication of how robust the rule of law remains in today’s English constitution. Should further actions of parliamentary sovereignty be engineered to circumvent inevitable legal challenges to the bill, the system of democracy in the UK might be in treacherous waters. 






References

[2] Gov.UK (2023). Illegal Migration Act 2023. [online] Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/2023/37/contents/enacted.

[3] Ilias and Ahmed v Hungary App No 47287/15 (ECHR, 21 November 2019)

 

[4] UNHCR The 1951 Refugee Convention. [online] UNHCR UK. Available at: https://www.unhcr.org/uk/about-unhcr/who-we-are/1951-refugee-convention.

[5] Othman (Abu Qatar) v the United Kingdom App No 8139/09 (ECHR, 17 January 2012)

 

[6] Human Rights Act 1998, s 6

 

[7] UKSC (2023). On appeal from: [2023] EWCA Civ 745 JUDGMENT R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent)… [online] Available at: https://www.supremecourt.uk/cases/docs/uksc-2023-0093-etc-judgment.pdf.

[8] Safety of Rwanda (Asylum and Immigration) HC Bill (2023-24) [38]

 

[9] Dicey, A.V. and Allison, J.W.F. (2019). Lectures introductory to the study of the law of the constitution. Oxford: Oxford University Press.

[10] Street, A. (2013). Judicial Review and the Rule of Law Who is in Control? [online] Available at: https://www.consoc.org.uk/wp-content/uploads/2013/12/J1446_Constitution_Society_Judicial_Review_WEB-22.pdf.

[11] Privacy International v Investigatory Powers Tribunal [2019] UKSC 22

 

[12] Regulation of Investigatory Powers Act 2000, s 67(8)

 

[13] Lords, M. (2005). HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Jackson and others (Appellants) v. Her Majesty’s Attorney General (Respondent) [2005] UKHL 56 LORD BINGHAM OF CORNHILL. [online] Available at: https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdf

[14] Bingham, T. (2011). The Rule of Law. London: Penguin.

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