When the Supreme Court found against the government on the Home Office’s Rwanda policy in November, the plan appeared to be dead in the water. The court made clear that there were substantial grounds to think that asylum claims would not be properly determined by the Rwandan authorities. As a result, it concluded that asylum seekers might be returned to a country where their life or freedom would be threatened, or where they would be subject to a risk of torture or inhuman or degrading treatment – contrary to a number of international conventions.
The judgment gave the Prime Minister an ‘out’ from a controversial and costly policy, which was always unlikely to have a significant impact on the immigration and asylum figures. Supporters floated alternative ideas such as asylum processing in Albania, or offshoring claims in a safe British Overseas Territory, such as Ascension Island.
Therefore it was somewhat surprising when Sunak, despite having a reputation as a managerialist, decided to double down on the Rwanda deal. Yesterday, the Home Secretary travelled to Kigali to sign a new treaty with Rwanda, designed to ‘strengthen the UK-Rwanda Migration Partnership’ and deal with the problems identified by the Supreme Court.
The new treaty differs somewhat from the original political arrangement with Rwanda. First and foremost, it is a formal international agreement which is legally binding in international law. It also introduces a number of new safeguards. These include: a new appeal body (which would be headed by a Rwandan and other Commonwealth national co-president with experience of asylum or humanitarian protection who would choose ‘other judges from a mix of nationalities’); and enhancements to the functions of the independent monitoring committee, to ensure compliance with the obligations contained in the treaty.
The treaty also makes clear that no individual should be removed from Rwanda unless they are returned to the UK. This should ensure that even people who are not granted refugee status will be granted a permanent residence permit to enable them to remain in Rwanda if they so wish.
These are important changes. Moreover, critics of the deal have to recognise that the Supreme Court judgment did not say that individuals could never be sent to Rwanda. Instead it concluded that while Rwanda was not currently safe, ‘structural changes and capacity-building needed to eliminate that risk may be delivered in the future.’
As the government has committed to not circumventing the statutory requirements under the Constitutional Reform and Governance Act 2010, the new treaty will have to be laid before Parliament for 21 sitting days before it can be ratified. During that time we can expect it to be assessed by select committees, including the House of Lords International Agreements Committee.
While Parliament has no powers to veto the new treaty, the House of Commons could seek to delay ratification and the deal is likely to be debated in some form.
All of this means that by the time the treaty enters into force, the government is likely to claim that it has been endorsed by Parliament and that the courts should have proper regard to the new protections that have been included.
Will these changes be enough to withstand further challenge? It is hard to say. The Supreme Court’s judgment said that, while it acknowledged that the earlier agreement was entered into in good faith, it simply did not accept that Rwanda had the capacity to ensure that the arrangements would work effectively. In reaching that conclusion it referenced Rwanda’s poor human rights record and the fact that it had failed to abide by assurances which it had given to the government of Israel under an agreement for the removal of asylum seekers. It is far from clear that the new treaty will be enough to assuage those concerns, without evidence of real capacity building in Rwanda. This will be hard to achieve in a matter of months.
Some on the right of the Conservative party continue to argue that the only way to ensure that asylum seekers are put on planes to Rwanda in advance of the next general election is to disapply the applicable human rights conventions (including the Refugee Convention and the United Nations Convention Against Torture, as well as the European Convention on Human Rights). They argue that this can be done through the use of ‘notwithstanding clauses’ and by ensuring that any appeals are ‘non-suspensive’ (meaning that court challenges would not have to be heard in advance of removal). They have also argued that the UK government should ignore any ‘interim measures’ imposed by the European Court of Human Rights.
If such clauses were included in the primary legislation implementing the new treaty, then they would be binding in domestic law and might well stop UK courts from preventing the removal of individuals. However, any such domestic laws would have no impact on the UK’s obligations under international law. Therefore any such move would only have the effect of transferring the final determination of some of these claims to the European Court of Human Rights.
That court might well be expected to find the Supreme Court’s original decision on conditions in Rwanda to be persuasive. Therefore there is a strong likelihood that, despite the new treaty, it would find the scheme to be in breach of the ECHR. There is also a real risk that anyone wrongly transferred to Rwanda might be awarded compensation.
Recent reports suggest that Sunak is unlikely to take the extreme approach of including ‘notwithstanding clauses’, perhaps appreciating that this would stoke new disagreements with the European Union (which could potentially end co-operation on security and justice matters) and the United States (which would no doubt have concerns that such actions could threaten UK membership of the ECHR, which would have a destabilising effect on the Good Friday Agreement).
He is also likely to wonder about the chances of getting any such ‘full fat’ legislation through Parliament. The Lords would always have presented a significant obstacle. But concerns expressed by the One Nation group of Conservative MPs demonstrate that there is unlikely to be a majority for contravening international law in the Commons either.
Many might find the continued political focus on the Rwanda plan somewhat quixotic, particularly given that it would have only the most limited impact on the asylum and immigration figures (Rwanda only committed to dealing with an initial 200 people, before scaling up capacity). If the new safeguards contained in the treaty are implemented, costs are likely to rise again, from the initial £140 million already invested in the scheme. And all of this when any future Labour government is committed to ending the programme.
It is unfortunate that James Cleverly’s time at the Home Office seems likely to be spent tilting at windmills, rather than finding more pragmatic and effective solutions to the vexed question of small boats.
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