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What is in the Safety of Rwanda (Asylum and Immigration) Bill?
The Safety of Rwanda (Immigration and Asylum) Bill has been published. There is no explanatory memorandum that I have seen, so I have done my best without that to explain what is in the Bill.
As was the case with the Illegal Migration Bill, it begins with a declaration by the Home Secretary that:
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.
The Bill is a short one, with only a few substantive clauses.
Clause 1 refers to the purpose of the Act, which is stated as being to “prevent and deter unlawful migration” by sending people to Rwanda. It says the Act “gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”. It also refers to various provisions of the treaty and that the Rwandan government has agreed that people will not be removed to anywhere except the UK.
At clause 1(4) the Bill states that the Parliament of the UK is sovereign and “the validity of an Act is unaffected by international law”. International law instruments that are explicitly listed are the Human Rights Convention, the Refugee Convention, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Council of Europe Convention on Action against Trafficking in Human Beings, customary international law and and other international law. Fairly comprehensive.
At clause 2, decision makers (defined as Home Office decision makers as well as courts and tribunals) are told that they must “conclusively treat” Rwanda as a safe country (clause 2(1)). Clause 2(3) says that courts and tribunals cannot consider claims challenging removal to Rwanda on the grounds that it is not a safe country. Clause 2(4) goes on to specify that this includes claims raising the risk of refoulement, that asylum claims will not be fairly and properly considered, or that Rwanda will not act in accordance with the treaty.
Clause 3 disapplies certain sections of the Human Rights Act 1998, namely section 2 (interpretation of Convention rights) and section 3 (interpretation of legislation). Sections 6 to 9 provide that public authorities must not act in a way that is incompatible with a Convention right, and if they do the affected person can bring a claim against them and the court or tribunal can grant relief as appropriate. Sections 6 to 9 have been disapplied as they relate to clause 2(1), clause 4(1) and clause 4(4).
Clause 4 sets out that individual decisions must still be made, taking the circumstances of each person into consideration. It also says that clause 2 does not prevent Home Office decision makers from considering and deciding whether it is unsuitable to send a person to Rwanda. Similarly, courts and tribunals can consider individual circumstances. However the test is “compelling evidence relating specifically to the person’s particular individual circumstances” and explicitly not on the grounds that Rwanda is a not a safe country generally.
Clause 4(2) states that decision makers cannot consider “the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its international obligations (including in particular its obligations under the Refugee Convention)” in these individual cases. And remember that clause 3 which disapplies certain sections of the Human Rights Act applies here.
Clause 4(3) to (4) restricts the ability of the courts and tribunals to grant interim relief to where they are satisfied that the person would face “a real, imminent and foreseeable risk of serious and irreversible harm” if sent to Rwanda. This does not apply where the decision to remove a person has been made under the Illegal Migration Act 2023 (these powers are not yet in force but the inclusion of this provision may indicate that they will be brought in soon to some extent). In this situation section 54 of that Act, which is even more restrictive as it is a blanket prohibition on the grant of interim relief, will apply instead (clause 4(6)).
Clause 4(5) says that the examples of what amounts to “serious harm” as set out at section 39(4) to (8) of the Illegal Migration Act 2023 will apply. Notably, this includes at 39(4)(e) “onward removal from the country or territory specified in the third country removal notice to another country or territory where P would face a real, imminent and foreseeable risk of any harm mentioned in paragraphs (a) to (d)“, i.e. refoulement meets the definition of serious harm in the Bill. I am not sure how this will work with clause 4(2).
Clause 5 states that compliance with interim measures made by the European Court of Human Rights will be a ministerial decision and courts and tribunals cannot have regard to this otherwise. This is similar to section 55 of the Illegal Migration Act, but with no detail about how decisions on whether or not to comply with interim measures will be made.
Clause 6 sets out consequential provisions, clause 7 is interpretation (including that, as was the case previously, no Rwandans will be sent to Rwanda under this Bill), clause 8 is extent and clause 9 the commencement and transitional provisions. The Act is intended to come into force on the same day as the Rwanda treaty, which appears to be 30 January 2024.
It is still seems possible that if this Bill does manage to pass, we will see a lot of individual challenges. However we are not there yet. For now, the government must explain their position. If the safety issues in Rwanda that were found by the Supreme Court have been addressed as suggested by the government, then what is the need for this Bill? If the issues have not been addressed then they should be honest with Parliamentarians about what they are being asked to vote for, which is to send some of the most vulnerable people in the world into a situation of danger, while at the same time doing their utmost to prevent them from challenging those decisions.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.