The Safety of Rwanda (Asylum and Immigration) Bill has been published with much fanfare, following the conclusion a treaty between the UK and Rwanda that provides for some asylum-seekers to be removed to Rwanda. Importantly, the ‘Rwanda policy’ would not involve such asylum-seekers being held in Rwanda while their claims are determined by the UK: rather, their asylum claims would be determined by the Rwandan authorities, and successful claims would result in their remaining in Rwanda rather than returning to the UK. This post seeks to answer four key legal and constitution questions about the Bill.
Why was the Bill enacted?
The Bill is the Government’s response to the Supreme Court’s recent judgment in which it held that the Rwanda policy was unlawful because it breached the principle of ‘non-refoulement’. That principle protects asylum-seekers from being returned to a country in which their life or freedom would be threatened or where they would face a real risk of torture or inhuman or degrading treatment. The non-refoulement principle is recognised in international law, including in treaties to which the UK is a party, and is given effect in UK law. For example, the principle is protected by article 3 of the European Convention on Human Rights (‘ECHR’), with which the UK Government, thanks to section 6 of the Human Rights Act 1998 (‘HRA’), is required by domestic law to act in accordance. Importantly, the Supreme Court did not rule that an arrangement such as that contained in the Rwanda policy — whereby asylum-seekers are handed over to another country, which then determines their asylum claims — is inherently unlawful. However, the Court held that, as matters currently stand, the risk of Rwanda’s failing to respect the non-refoulement principle means that removing asylum-seekers to Rwanda would itself constitute a breach of that principle by the UK.
How does the Bill address the Supreme Court’s judgment?
At one level, the Bill is very simple. As explained above, the Supreme Court’s judgment ultimately turned not upon a point of law but upon a factual question about the extent to which the Rwandan Government’s assurances about respecting the non-refoulement principle could be relied upon. The UK Government insisted that Rwanda was safe, but the Supreme Court disagreed. Such disagreement is simply a fact of constitutional life. It is ultimately for courts to determine, in the light of the relevant facts, whether a given Government policy or decision is lawful or unlawful.
However, the Bill provides, in clause 2(1), that: ‘Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.’ Crucially, courts are ‘decision-makers’ for this purpose, meaning 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’. Under the Bill, therefore, even if it was presented with overwhelming evidence that Rwanda was unsafe, a court would have to pretend that it was a safe country. Meanwhile, clause 2(3)–(4) would prohibit courts in the first place from reviewing Government decisions on the ground that Rwanda is not safe. Under this belt-and-braces exercise, therefore, it would be impermissible for courts to deal with cases concerning the safety of Rwanda, and if they did, they would be forced to deem Rwanda safe even if the evidence was overwhelmingly to the contrary.
Is there any scope for domestic legal challenge?
For the avoidance of doubt, clause 2(5) provides that the prohibition on courts considering matters pertaining to the safety of Rwanda applies notwithstanding certain provision of the HRA and other provisions of domestic law, including the common law. However, while this means the scope for domestic legal challenge is largely excluded, it is not wholly excluded. Clause 4 leaves open the door for challenging removal decisions on the basis of ‘compelling evidence relating specifically to the person’s particular individual circumstances’ but not on the grounds that Rwanda is ‘not a safe country in general’ or that it might breach the non-refoulement principle.
More generally, while clause 3 disapplies, in respect of the Rwanda Bill, certain provisions of the HRA — including the Government’s duty under section 6 to act compatibly with ECHR rights — it does not disapply section 4 of the HRA, which allows courts to grant declarations of incompatibility when UK legislation breaches the ECHR. However, while this leaves open the possibility of a domestic challenge to the Rwanda Bill on the ground of its incompatibility with the ECHR, such a challenge, even if successful, would not render the Rwanda policy domestically unlawful. This is because declarations of incompatibility under the HRA neither affect the validity of incompatible legislation nor legally require — as a matter of domestic law — the removal of the incompatibility.
Might the Bill instead be challenged on the ground that it is simply unconstitutional? It is, after all, an affront to the separation of powers and the rule of law, in that it effectively reverses a Supreme Court judgment, undermines the judicial function and attempts to remove from the courts’ jurisdiction questions about the legality of Government decisions. In orthodoxy, the principle of parliamentary sovereignty — which makes whatever Parliament enacts lawful — would be a complete answer to these charges. But in Privacy International, Lord Carnwath said ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’. For a court to take the step implied in this comment, by holding, in effect, that Parliament had exceeded its authority by seeking to limits the courts’ constitutional role, would be fraught with risk for the judiciary. It is, however, conceivable that the Rwanda Bill might transform what has largely remained a hypothetical question about the fundamental relationship between Parliament and the courts into a live one.
What about international law?
Even if, on an orthodox application of the doctrine of parliamentary sovereignty, we are content to accept that the Rwanda Bill — if it ends up being enacted by Parliament — is immune from challenge in domestic law, that is only half of the story. The provisions of domestic law that the Bill would switch off simply give effect, for the most part, to the UK’s international legal obligations — including, but not only, under the ECHR. Unless the UK ceases to be a party to, or otherwise repudiates, the ECHR and other relevant treaties, it will remain bound as a matter of international law by the obligations set out in them. It follows that, to the extent that the Rwanda policy is inconsistent with the non-refoulement principle, that policy will be unlawful in international law even if domestic courts are forced by the Bill to turn a blind eye to that legal fact. For instance, the UK will remain bound by article 3 of the ECHR, which reflects the non-refoulement principle, and it will remain subject to the jurisdiction of the European Court of Human Rights. It is thus highly likely that the Bill, if enacted, will lead to a legal challenge in that Court. Indeed, clause 5 almost anticipates this by permitting UK Ministers — again, as a matter of domestic law — to ignore interim measures issued by the Strasbourg Court.
Ultimately, the Rwanda Bill is as parochial as it is hypocritical. It is parochial in the sense that 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. But this is to conflate the sovereignty of the UK Parliament in domestic law with the UK’s sovereignty on the international plane as a State. It is precisely in exercise of its State sovereignty that the UK can enter, and has entered, into binding treaty obligations. The peculiarity that the UK’s Parliament, as a matter of domestic law, is sovereign in the sense of being (in orthodoxy, at least) beyond judicial control cuts no ice whatever on the international level. Meanwhile, the Bill 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. It follows that the Rwanda Bill, and the policy to which it seeks to give effect, is ultimately a smoke-and-mirrors exercise that promises something which, as a matter of legal fact, it simply cannot deliver.
Written by Mark Elliott. Mark is Professor of Public law and Chair of the Faculty of Law at the University of Cambridge, and a Fellow of St Catharine’s College, Cambridge.
