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Home Secretary signs new treaty with Rwanda after Supreme Court found policy of relocating asylum seekers was unlawful


Government says it feels very strongly that new treaty addresses issues raised by Supreme Court

Date of Publication:
06 December 2023

The Home Secretary James Cleverly was in Kigali yesterday to sign a new treaty with Rwanda, as the UK Government continues to pursue a policy of sending asylum seekers who enter the UK without official permission to the East African nation.

Boat at seaYou can download the 43-page treaty here.

The Home Office said in a press release: "The landmark Treaty is binding in international law and ensures that people relocated to Rwanda under the Partnership are not at risk of being returned to a country where their life or freedom would be threatened – an act known as refoulement."

Last month, the Supreme Court ruled that the Rwanda policy was unlawful as Rwanda is not a safe third country for asylum seekers and there is a real risk that asylum seekers sent there would face refoulement.

Speaking in Rwanda yesterday, the Home Secretary said the Government feels very strongly that the new treaty addresses all of the issues raised by their Lordships in the Supreme Court.

ITV News reported, however, that a spokesperson for the Rwandan government said "there's nothing wrong with the [original] treaty" and the "guarantees" outlined in the new agreement "already existed".

In a written statement to the House of Commons today, the Home Secretary gave the following further details about the treaty:

"This treaty is binding in international law. It makes it absolutely clear that people relocated to Rwanda will be safe and supported and will not be removed to a country other than the UK. This ensures there is no risk of refoulement. For those who are not granted refugee status or humanitarian protection, they will get equivalent treatment which includes being granted permanent residence so that they are able to stay and integrate into Rwandan society.

"Through the treaty, Rwanda will introduce a strengthened end-to-end asylum system. Individuals will have the right to appeal a decision on their asylum claim, which will be considered by a new, specialist asylum appeals body. It will have one Rwandan and one other Commonwealth co-president and be made up of judges from a mix of nationalities, selected by the co-presidents.

"The treaty also enhances the role of the independent Monitoring Committee which will ensure adherence to obligations under the agreement. It will have the power to set its own priority areas for monitoring and be given unfettered access to complete assessments and reports. The Committee will monitor the entire relocation process, including initial screening, to relocation and settlement in Rwanda. It will develop a system to enable relocated individuals and legal representatives to lodge confidential complaints directly to the Committee."

The Law Society Gazette reported that Nick Emmerson, the president of the Law Society, said it remained unclear how the new treaty overcomes the Supreme Court ruling.

Emmerson was quoted as saying: 'While Parliament has the right to respond to a court judgment by passing legislation to change a point of domestic law, the Supreme Court's finding in this case was on a point of fact, based on a core and well-established principle of international law. That fact is that Rwanda is not considered a safe country given the high risk of refoulement of asylum seekers. Neither a treaty nor domestic legislation can overnight provide adequate means of safeguarding the rights of people removed to Rwanda."

Human rights lawyer Shoaib M Khan highlighted that the treaty suggests everyone will now be able to stay in Rwanda.

Khan posted on X: "According to the treaty, it seems that Rwanda will:
- Allow people eligible for refugee status to remain in Rwanda;
- Allow some people ineligible for refugee status to remain in Rwanda under 'humanitarian protection';
- Allow all of the others to remain in Rwanda.
So basically everyone who is sent will just remain in Rwanda. Why even bother to consider asylum claims then?"

Writing in the New European, Dr Helen O'Nions, associate professor at Nottingham Law School, said the new treaty does not comply with the rule of law and the UK cannot make a country safe just by saying it is.

O'Nions wrote: "The main addition is an independent monitoring committee which will have oversight of reception and processing, and treatment and support of claimants for up to five years after they receive a decision. The committee will implement a complaints system and a new appeals body will be established with judges from Rwanda and other Commonwealth countries. But the treaty does not attempt to address several significant shortcomings, and, as such, the risk of refoulement remains. The safety of Rwanda for refugees depends on wholesale change, both to the asylum support system and to judicial and political processes."

Jonathan Jones KC said in a thread on X: "So does the new treaty do enough? It is likely that some will be sceptical about whether the guarantees in the treaty will be observed in practice. So there may well be further court challenges. Much then will depend on the new Bill (which we haven't yet seen)."

In another turbulent day for immigration law, the Safety of Rwanda (Asylum and Immigration) Draft Bill was published this afternoon, and was promptly followed by the resignation of immigration minister Robert Jenrick. Jenrick said that the legislation did not go far enough and he did not believe it provides the Government with the best possible chance of success in removing asylum seekers to Rwanda.

The Prime Minister responded by saying that Jenrick had 'fundamentally misunderstood' the situation and it was the Rwandan government who had effectively prevented the Bill from going further as they would not accept the UK basing the scheme on legislation that could be considered in breach of international law.

Labour's shadow Home Secretary Yvette Cooper said in the House of Commons that there was "total chaos" in the Government and these are the "desperate dying days of a party ripping itself apart".

The Bill states that it "gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country", though it does also allow for decisions to be made that Rwanda may not be safe for an individual person based on compelling evidence which is specific to that person’s particular circumstances.

For some immediate legal analysis of the new Bill, see this post by Professor Mark Elliott of the University of Cambridge. Elliott notes that if the Bill were enacted in its current form, it would be rendered legally impossible as a matter of domestic law to challenge Government decisions to remove asylum-seekers to Rwanda on the ground that it is not a 'safe country'. The courts would have to pretend that Rwanda was a safe country.

Professor Elliott concludes that the Bill is 'parochial and hypocritical'. It "proceeds on the basis of the sleight of hand that the UK Parliament, because it is sovereign, can somehow free the Government from its international legal obligations," and it "reveals an astounding level of hypocrisy in the sense that it is premised on a policy that presupposes that Rwanda will honour its obligations in international law while demonstrating that the UK is prepared to breach its own obligations." The Bill is "ultimately a smoke-and-mirrors exercise that promises something which, as a matter of legal fact, it simply cannot deliver."

Simon Cox of Doughty Street Chambers said on X that the Bill was a serious assault on rule of law and it would - if passed - destroy the essential function of the courts in a democracy, as it allows Parliament to dictate any fact to any court.

Paolo Sandro, lecturer in law at the University of Leeds, said the Bill "breaches the most important constitutional boundary in the common law constitutional tradition and threatens the type of constitutional Armaggedon scenario which so far has been the subject only of obiter dicta, scholarly work, and exam papers."