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Is it legal to outsource the UK’s refugee responsibilities to Rwanda?
Credit: BBC News

Is it legal to outsource the UK’s refugee responsibilities to Rwanda?

The government has announced a deal to export the UK’s responsibility to assess asylum claims and host refugees to Rwanda. Boris Johnson said in a speech that “anyone entering the UK illegally, as well as those who have arrived illegally since January 1st, may now be relocated to Rwanda”.

This is framed as a response to those crossing the Channel in small boats and the BBC was told that it is a “pilot scheme” that would be “restricted to mostly single men”. The text of the deal contains no such restriction and the scheme could be applied to other modes of unauthorised entry: for example, Ukrainian refugees who have entered the UK via Ireland without a visa. 

I wrote last year that the supposed “turnaround” or “pushback” policy of intercepting Channel boats at sea would never be implemented. Johnson has now announced its effective abandonment: “after much study and consultation… it’s clear that there are extremely limited circumstances when you can safely do this in the English Channel. And it doesn’t help that this approach I don’t think would be supported by our French partners”.

A one-way ticket

The idea of “offshoring” or “extraterritorial processing” is not new in the UK and has been implemented (then abandoned) by Australia. The basic idea is that an asylum seeker is either intercepted before physical arrival and removed to a safe third country or, if they reach the territory of the country concerned, they are then removed to the safe third country.

On one model the asylum seeker, if recognised as a refugee, might be readmitted to the first country. On another, they remain in the safe third country (or be resettled to yet another country).

The Rwanda deal is firmly in the latter camp: those recognised as refugees will be forced to remain in that country and not allowed to come to the UK. This is clear from the text of the deal and is stated explicitly in a letter from the Home Office’s top civil servant, Matthew Rycroft: “the UK’s legal obligations end once an individual is relocated to Rwanda, and GoR [government of Rwanda] takes on the legal responsibility for that individual and for processing their claim in line with the Refugee Convention”. Rycroft adds that “I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect…”.

Most people who claim asylum in the UK are indeed recognised as refugees, including those arriving by boat.

 

As the UN Refugee Agency says, experience shows that these agreements are “eye-wateringly expensive, often violate international law, lead to the use of widespread detention and lead to more smuggling, not less”. The Australian experience was that it came at a horrendous financial and human cost but did not deter boat journeys, nor save lives at sea, nor “break the business model” of people smugglers.

Existing Immigration Rules

The Immigration Rules already provide that any person who travelled to the UK through a safe country can have their asylum case declared inadmissible and face removal to any other safe country around the world willing to accept them. When the rules were first changed to allow this at the end of 2020, there were no countries willing to accept asylum seekers from the UK and so all the inadmissibility rules did was build in an automatic period of delay in the processing of new asylum claims.

The trigger for a case being considered inadmissible is proven travel through and opportunity to claim asylum in a specific country. The consequence is that the Home Office “will attempt to remove the applicant to the safe third country in which they were previously present” or “to which they have a connection” or “to any other safe third country which may agree to their entry”. The person can in theory be removed to any third country at all as long as that country will accept them: and Rwanda is apparently that country.

I have seen it said that exporting refugees to Rwanda will never happen because only a handful of people have had their asylum claim declared inadmissible over the past year or so. That is because the inadmissibility procedure ultimately requires a third country to take people from the UK — “no decision must be made before return agreements are obtained” — and up until now there has been no deal in place with any country. So of course hardly anyone has reached the end of the inadmissibility procedure, save for a few dozen who had actually been granted refugee status somewhere else before coming to the UK.

Borders Bill provisions 

Clause 15 of the Nationality and Borders Bill currently before Parliament would put the inadmissibility rules mentioned above into primary legislation. (The clause/section numbering may be different in the final version of the law, which is expected to pass in the coming days.)

In addition, the Borders Bill would allow for the transfer to another country of someone who has lodged an asylum claim in the UK rather than having it declared inadmissible.

At present, it is generally unlawful for an asylum seeker to be removed from the United Kingdom while an asylum claim or asylum appeal is being pursued. This safeguard is being removed by clause 28 combined with Schedule 3 of the Bill. These enable removal of an asylum seeker to a “safe country” while their claim is pending.

A “safe country” is defined as follows:

(a) it is a place where a person’s life and liberty are not threatened by reason of the person’s race, religion, nationality, membership of a particular social group or political opinion,

(b) it is a place from which a person will not be removed elsewhere other than in accordance with the Refugee Convention,

(c) it is a place—

(i) to which a person can be removed without their Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) being contravened, and

(ii) from which a person will not be sent to another State in contravention of the person’s Convention rights, and

(d) the person is not a national or citizen of the State.

The explanatory notes to the Bill say that clause 28 is intended to support

the future object of enabling asylum claims to be processed outside the UK and in another country. The purpose of such a model is to manage the UK’s asylum intake and deter irregular migration and clandestine entry to the UK.

Paragraphs 7-10 of Schedule 3 give the Home Secretary powers to remove states from the list of safe countries.

Where the claim is deemed “clearly unfounded”, paragraphs 11 to 17 of Schedule 3 remove even non-suspensive appeal rights. Schedule 3 also makes it possible to remove asylum seekers to a safe third country while their claims are pending without having to issue a “clearly unfounded” certificate under schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

How legal is this?

It remains to be seen.

The Refugee Convention, as it has been interpreted in the United Kingdom so far, does not explicitly prevent the removal of a refugee to a safe third country. Article 31 prevents the imposition of penalties on refugees in certain limited circumstances. Article 32 prevents the expulsion of a refugee, but only where the refugee is lawfully present. In ST (Eritrea) [2012] UKSC 12, the Supreme Court held that an asylum seeker, even if registered as such, is not lawfully present until they have received a grant of leave to remain. Article 33 prevents refoulement to a territory where a person’s life or freedom would be threatened for a Convention reason.

Human rights law might offer more practical protection. Unlike Australia, the UK is a state party to a binding, enforceable and active regional human rights convention, the European Convention on Human Rights. Removal to a “safe” country where in fact the person’s human rights would be violated, for example by prolonged arbitrary detention or exposure to torture or inhuman or degrading treatment, would clearly be unlawful. This might be a question of fact, depending on what evidence was available. It has already been pointed out that Rwanda is a country that produces LGBTQI+ refugees and doubtless other human rights concerns will come to light.

A further concern might centre on whether effective procedural guarantees exist to protect a claimant against arbitrary refoulement to another country: see M.S.S. v. Belgium and Greece [2011] INLR 533 and T.I. v. The United Kingdom [2000] INLR 211. It is well established that states seeking to expel asylum seekers to a third country without examining the asylum request on the merits have a duty not to remove them if there are substantial grounds for believing that such action would expose them to human rights breaches (under Article 3 in particular).

Whatever the details of the Rwanda deal, litigation will inevitably follow.

This article was originally published on 14 April and has been updated to reflect the publication of the UK-Rwanda agreement and to add information about the existing inadmissibility rules.

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.