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Legislating fiction

Written by
Alice Donald and Joelle Grogan, via Verfassungsblog
Date of Publication:

MPs set to debate the Rwanda Bill

Members of Parliament in the UK will on 16 and 17 January 2024 debate the Safety of Rwanda (Asylum and Immigration) Bill, which 'gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country' for asylum-seekers. The Supreme Court unanimously ruled in November 2023 that Rwanda was manifestly not safe as asylum seekers sent to the country would face a real risk of ill-treatment due to insufficient guarantees against refoulement. The Bill thus aims to use law to determine a factual situation for as long as the law is in force. This blog discusses the risks inherent in creating such a 'legal fiction' and how the Bill could be revised to mitigate this risk, before assessing the chances of it becoming law in the currently turbulent political context.

Ossifying a fiction in law

The Rwanda policy, announced in April 2022, would see some asylum seekers who arrive in the UK via illegal routes removed to Rwanda, where their claim would be processed within the Rwanda asylum system (i.e. not by British authorities). Refugees would be settled in Rwanda, not the UK, if their claim to status were successful. The Illegal Migration Act 2023 legislates for the removal of asylum seekers to a safe third country. Of the 57 countries listed in the Act, the UK has only concluded an agreement with Rwanda.

In response to the Supreme Court judgment finding Rwanda to be unsafe, the UK-Rwanda Treaty was signed. The Treaty creates legally-binding safeguards that were not in the original agreement with Rwanda, including new first instance and appeal bodies in Rwanda. The Rwanda Bill states that every UK decision-maker – meaning the Home Secretary, courts and immigration officers when deciding on the removal of a person to Rwanda – must 'conclusively' treat it as a 'safe country'. The Bill further states that courts 'must not consider' any challenge to a removal decision on the basis that Rwanda is not safe, or that there is a risk of refoulement, or that a person will not receive fair consideration of their asylum claim in Rwanda.

A critical issue MPs must consider is the risk of cementing into law Rwanda's designation as a 'safe' country, no matter what the evidence to the contrary now or in the future. The Supreme Court adduced a significant body of evidence, mainly from the UN refugee agency UNHCR, to conclude that Rwanda is not – presently – a safe destination for people claiming asylum. It referred to 'serious and systemic defects in Rwanda's institutions and procedures for processing asylum claims'. These deficiencies included Rwanda's 'past and continuing practice of refoulement' in the context of a previous agreement with Israel, which in the view of the UKSC, required 'changes in procedure, understanding and culture' in Rwanda. Of particular concern was Rwanda's 100% rejection rate of asylum seekers from countries such as Afghanistan and Syria – nationalities that are nearly always recognised as refugees in the UK.

To be clear, both sides agreed on the national and international legal obligations to which the UK is bound on the principle of non-refoulement. The Supreme Court did not find the policy of removing asylum-seekers to a third country unlawful, only that Rwanda is not currently a safe country to do so. The Court's judgment, then, recognises the fluidity of conditions in Rwanda. Home Secretary James Cleverly also acknowledged this changeability when he noted in his response to the Supreme Court judgment that it was 'made on the basis of facts from 15 months ago'

Here lies a core concern about the assertion that Rwanda is a safe country for people seeking asylum. The Bill as currently drafted forecloses any future assessment that the situation in Rwanda has changed – whether for better or worse. The inherent risk here is that this Bill, if enacted, would create a precedent for predetermining the safety of any country. If, say, a civil war broke out, a coup was staged, the country went to war with another, there were environmental disaster, or the situation severely worsened for any other reason, then no matter the evidence provided, it would require another Act of Parliament to designate that country was no longer safe, or for MPs to repeal the measure, in order to suspend the operation of the policy. Indeed, it would be just as illogical to legislate that Rwanda – or any country – was not safe, since this assertion, too, may not withstand future evidence to the contrary.

Legislating a logical fallacy

Compounding this risk is uncertainty about when such a determination could reliably be made. There is a danger that the Bill could enter into force, and people could be removed to Rwanda, before safeguards guaranteed by the Treaty are fully functioning – or before they even exist. The timeline for the creation of the safeguards contained in the UK-Rwanda Treaty is unclear. The government's policy statement on the Bill issued on 12 December 2023 states that establishing the two new bodies for processing claims and appeals in Rwanda (the latter involving judges from other jurisdictions) requires the introduction of a new, domestic asylum law which Rwanda 'will pass … in the coming months'.

The Treaty could be ratified in the UK as early as 30 January, assuming MPs do not vote to delay ratification. It is thus conceivable that the Treaty will be ratified, the Bill will pass through Parliament, and people begin to be removed to Rwanda, before these bodies exist and certainly before they have been functioning for sufficient time to determine the efficacy of their operation in practice.

When pressed on this concern by the House of Lords International Agreements Committee, which scutinises treaties laid before Parliament, Home Secretary James Cleverly stated that the government 'will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place; otherwise, the treaty is not credible'. However, the policy statement appears to contradict this assurance as it says that, 'Once the treaty is ratified and the Bill passed, we can begin to operationalise the Partnership'. These statements could only be reconciled if the UK delays ratification of the Treaty, and any removals to Rwanda, at least until the Treaty mechanisms have been created, which Cleverly did not commit to in his evidence before the Committee.

Parliament as a decision-maker

By predetermining the question of whether Rwanda is safe, and also by excluding the possibility of judicial review, but for 'an exceptionally narrow route to individual challenge', the Bill would effectively preempt the decision-making process in almost individual cases. Even if, say, an Immigration officer or a court could be satisfied on the evidence that there was a risk of refoulement if an individual was sent to Rwanda, they would still be unable to make a decision against removal to avoid a breach of international law.

An essential question is whether Parliament should replace judicial and administrative decision-makers on the safety of a country for each and every individual. Even once the Treaty safeguards are up and running, is Parliament – and Parliament alone – best placed to determine their actual and (until then) potential effectiveness? As a matter debated in Parliament, it risks being framed as primarily a political question, whereas the safety of a country should principally be a factual matter based on empirical evidence, which is subject to change over time. The crossbench peer Lord Anderson, when giving evidence to the Lords, ventured that 'working out whether these arrangements are good enough is a very practical, fact-sensitive business. That is why, traditionally, these judgments are usually thought to be appropriate for a court, rather than for Parliament'.

Courts or administrative bodies are self-evidently a more appropriate forum for decision-making in individual cases: natural justice incorporating the principle of audi alteram partem requires that people should have the opportunity to challenge decisions which affect them for their legality. Making a blanket predetermination about Rwanda's safety excludes potentially thousands from such access to justice.

Could a balance be found?

The current set of proposed amendments to the Bill reflect not only the deep divisions between the main parties, but also within the Conservative Party itself, between those arguing that the Bill goes too far and those saying it does not go far enough in removing the UK's international obligations to protect refugee rights and excluding judicial scrutiny. It currently looks unlikely that amendments which would undermine the aim of the Bill will ultimately succeed. There are, however, a number of amendments which could mitigate the problem of predetermining the safety of a country for both the processing of asylum claims and the settlement of refugees while also aiming to balance competing political demands. We consider two possible changes here.

The first would be to delegate power to a government minister to assess, on an ongoing basis, the safety of Rwanda for refugees. Such a power would allow the relevant minister to begin the operation of the policy, and/or to suspend it through a form of secondary law called a statutory instrument [SI] without the need for Parliament to pass a new Act. The parliamentary oversight of such a power could be further enhanced through making the SI subject to the negative procedure, which would give Parliament a period of time to reject the SI confirming the safety of Rwanda before it comes into force.

The concerns of the Supreme Court could also be answered by enhancing the strength of the evidence required in the decision-making. The decision on the safety of Rwanda could be premised on whether the minister is satisfied that conditions have been met including, for example, fulfillment of the commitments laid out by Rwanda in the Treaty. A role could also be given to relevant expert bodies. For example, the minister could be required to obtain evidence from the UNHCR and the Monitoring Committee responsible for the oversight of the policy in Rwanda.

A second option for amendment to the Bill would be to introduce a sunset clause to the operation of the legislation, requiring Parliament to vote periodically on the continuation of the Act. This would ensure that parliamentary time would be allocated to regular consideration of the Act, as well as building in consideration of new evidence on the evolving safety of Rwanda as a destination for asylum-seekers.

Either of these amendments would reduce the problematic position of ossifying a position in the law, and recognise the need to reflect reality as it exists. Yet problems would remain. First, the problem would remain of seeking to determine whether or not the Rwandan asylum system is, in practice, safe (i.e. functioning in accordance with the Treaty safeguards), which could only be tested after the new mechanisms have been created, people have been removed, and decisions at both the first instance and appeal stages have begun to be made. Second, periodic voting required by a sunset clause, and to a lesser extent delegating decision-making to a minister, still risks framing the safety of refugees as a political, rather than factual, matter.

Cornerstone to millstone

The Conservative Party has deliberately made the issue of immigration and asylum a battleground for the general election due within the next 12 months. Yet the Rwanda policy's continued troubles have turned a cornerstone of Prime Minister Rishi Sunak's 'five priorities' into a millstone. The Bill has exacerbated an existing schism within the governing party, already leading to a ministerial resignation.

Meanwhile, the policy has been condemned as lacking compassion, and being both impracticable and ineffective as it is unlikely to deter irregular migration, as well as 'insufficient to overcome the concerns of [the UK] supreme court'. Rwanda also warned the UK 'that they would not accept the UK basing this scheme on legislation that could be considered in breach of [the UK's] international law obligations'. The opposition Labour Party has committed to removing the Rwanda policy, and indicated that it will pursue an alternative approach should it come to power, as polling suggests.

But beyond electoral politics is the extent to which the Bill has again thrust constitutionalism and rule of law in the UK into the spotlight. The Bill seeks to overturn a decision of the Supreme Court. It frames the Bill as a response to courts usurping Parliament, when, in fact, the opposite is more accurate. Evidenced here, too, are the manifest rule of law issues provoked by using law to enact a fiction.