'Why was the Rwanda Agreement unlawful, and will withdrawal from the ECHR resolve this?': Kirsty Hughes

Yesterday, the Supreme Court found the Rwanda agreement unlawful. The Prime Minister issued a statement indicating what he will do to address this.

In this video I will explain why the Agreement was found to be unlawful, why the changes proposed are unlikely to address those issues, and the significance for Human Rights law.

In April 2022 the UK and Rwanda entered into a Memorandum of Understanding for the provision of an Asylum Partnership Arrangement. It provided that some of the asylum seekers arriving in the UK would be sent to Rwanda where their claims would processed through the Rwandan asylum system. Under this arrangement, those sent will not be returned to the UK even if they are subsequently recognised as refugees. The evidence suggests that the UK paid £140 million to Rwanda in April 2022 in connection with this agreement.

Since then the policy has been the subject of legal challenges both domestically and before the European Court of Human Rights. To date no-one has been sent to Rwanda.

The legal process prompted a political backlash against the European Convention of Human Rights.

This erupted in 2022 following an interim application made to the European Court of Human Rights.

Interim measures are temporary measures granted by the European Court of Human Rights on an exceptional basis where applicants face a real risk of serious and irreversible harm.

The 2022 interim measure related to a flight scheduled to leave the UK on the 14th June 2022. One of the asylum seekers that would have been on that flight, KN, had arrived in the UK on 17th May 2022 and claimed asylum. A doctor concluded that KN may have been the victim of torture. KN was, however, issued with an order stating that he should be sent to Rwanda. KN sought to challenge this, and the European Court of Human Rights issued an interim measure preventing his removal until his case had been decided by UK courts. So the European Court of Human Rights did not determine the merits of the issue.

Over the last year the legality of the Rwanda policy has been challenged in our domestic courts and yesterday the UK Supreme Court unanimously found it unlawful.

Whilst the case has been making its way through our courts there have been various suggestions by politicians that if the policy is found to be unlawful that they will do ‘whatever it takes’ to address that. This has been understood to mean that they would seek to withdraw from the ECHR. The Prime Minister reiterated that yesterday.

It is therefore important to observe that the SC in determining that the Rwanda policy was unlawful did not rely heavily upon the European Convention on Human Rights and in fact did not decide whether the policy violated Article 3 ECHR.

In order to understand the legal question that the Court considered it is necessary to first set out the legal framework. It provides that in certain circumstances the Home Secretary can transfer asylum seekers to any safe third country which agrees to accept them. It also provides that a country only qualifies as a safe third country if the principle of “non-refoulement” is respected there.

The principle of non-refoulement appears in several forms – essentially it requires that asylum seekers are not returned, directly or indirectly, to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, or they would be at real risk of torture or inhuman or degrading treatment.

The HS argued that the arrangements made with Rwanda, and the assurances given by Rwanda, meant that Rwanda was a safe third country for these purposes.

The claimants argued that it was not a safe third country, as there is a risk of refoulement.

Consequently, the question in the legal proceedings was whether there were substantial grounds for believing that the removal to Rwanda would expose asylum seekers to a real risk of refoulement.

The case made its way up through three courts.

The first - the Divisional Court – in February - held that some of the removal decisions were procedurally flawed, but rejected the wider challenge to the policy.

This was then overturned by the Court of Appeal. It held that there are substantial grounds for believing that there are real risks that asylum claims will not be properly determined in Rwanda AND consequently that there is a real risk of refoulement.

This was unanimously upheld by the Supreme Court.

The Supremem Court considered three questions in coming to that conclusion.

The first question was whether the Divisional Court had applied the wrong test when considering the risk of refoulement

The Supreme Court confirmed that the correct legal test is whether there are substantial grounds for believing that removal would expose asylum seekers to a real risk of ill-treatment as a consequence of refoulement.

Crucially it confirmed that this is a question for the court which it must answer based on its assessment of the evidence before it.

This was important as there were several passages in the Divisional Court judgment which suggested that it saw its function as one of reviewing the Secretary of State’s assessment to determine whether it was a tenable one, rather than making its own assessment.

The second question - whether the Court of Appeal was entitled to interfere with the Divisional Court’s conclusion

The Supreme Court found that the Court of Appeal was entitled to do so as the Divisional Court had erred in its treatment of the evidence.

Essentially by failing to engage with the evidence of the UNHCR, the UN’s Refugee Agency.

The Supreme Court held that in determining whether there was a risk of refoulement the courts must consider the evidence on how the asylum system operates in practice.

Vital evidence was provided by the UN which should have been given particular weight given its remit and unrivalled practical experience of working in the Rwandan asylum system.

Consequently, the Divisional Court had erred and the Court of Appeal was entitled to interfere with its conclusion.

The third question – was whether the Court of Appeal was entitled to conclude that there were substantial grounds for thinking that asylum seekers would face a real risk of ill- treatment by reason of refoulement following removal to Rwanda

The Supreme Court held that the Court of Appeal was right to conclude this.

It reasoned that

First, the general human rights situation in Rwanda;

Second, the operation of Rwanda’s asylum system, including its history of refoulement;

And, third, Rwanda’s non-compliance with assurances it had given under an asylum arrangement with Israel

All provided substantial grounds for believing that there is a real risk of refoulement.

In respect of the general human rights system in Rwanda – the Supreme Court emphasised amongst other evidence the following:

Judicial findings by a British court in 2017 that Rwanda - “has instigated political killings which had led British police to warn Rwandan nationals living in Britain of credible plans to kill them on the part of that state”

The fact that in January 2021 (so just a year prior to the Rwanda Agreement) the United Kingdom government had criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”.

The fact that advice provided by officials during the process of selecting a partner country for the removal had stated that Rwanda has a poor human rights record.

Finally, there was evidence that in 2018 the Rwandan police had fired live ammunition at refugees protesting over cuts to food rations.

Examining the operation of Rwanda asylum system the Supreme Court observed:

First - that whilst a right of appeal has existed since 2018, there has never been an appeal in practice.

Second - hat there is evidence suggesting a lack of judicial independence and lack of independence in the legal profession

Third - that evidence provided by the UN indicates that 100% of nationals from known conflict zones have had their applications rejected.

And finally – that there was evidence of the practice of refoulement in Rwanda

A final important part of the evidence was the failed Israel/Rwanda asylum agreement.

The Secretary of State argued that the failure of this scheme was irrelevant.

This was rejected by the Supreme Court. It found that it was relevant that Rwanda had previously entered into an agreement undertaking to comply with non-refoulement and had apparently failed to do so.

Overall the Home Secretary sought to argue that past and current inadequacies in the asylum system in Rwanda were not reliable indicators of how the UK Agreement would operate.

But this was rejected by the Supreme Court.

It held that determinations of risk must be based on what has happened in the past, and in the light of the situation as it currently exists, as well as in the light of what may be promised for the future.

So where does this leave the Rwanda Agreement and where does this leave human rights law?

Rishi Sunak announced yesterday that he will pass ‘emergency legislation’ asserting that Rwanda is a ‘safe country’. He will therefore seek to fast track legislation asking Parliament to deem Rwanda a safe country for these purposes. It is likely this will be highly contested.

He also stated that the UK Government will enter into a new Treaty with Rwanda, and that this provides the assurance the Supreme Court is asking for.

Yet whilst this will amend the status of the agreement from a Memorandum to a legally binding Treaty it does not address the problems that the Supreme Court identified in its unanimous judgement.

The SC made it clear that it did not doubt the good faith of the Rwandan Government – but - and here it is worth reiterating what the SC said - that structural changes and capacity-building are needed.

The body of evidence cited by the Supreme Court suggests that those structural changes are deep. There are multiple problems and they include a lack of independence in the judicial system and the legal profession.

The scale of such change therefore appears irreconcilable with the speed at which the Prime Minister wishes to advance.

Finally, it is important to note that Rishi Sunak also stated yesterday that he will not allow foreign courts to block flights to Rwanda, and that he is prepared to change our laws and revisit ‘international relationships’ to remove obstacles.

In particular, he stated that if the European Court of Human Rights intervenes that he we do what is necessary. Thus withdrawal from the European Court of Human Rights will be back on the agenda.

It is, however, worth observing that he referred to ‘international relationships’ – in the plural.

Indeed, as the Supreme Court judgment highlights the relevant international relationships are not limited to the European Convention on Human Rights. They include the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention Against Torture.

There is also - as the Supreme Court observed the question of non-refoulement as part of customary international law.

The significance of non-refoulment being a principle of customary international law is that it is binding upon all states, regardless of whether they are party to any treaties which give it effect.

The changes that the Government thus seeks are not easy, they are not cosmetic, and they would not be without international consequences. There is therefore a lot to consider, and a General Election is looming.