Alexander Horne

The Rwanda Bill is going to be hugely contentious

(Photo: Getty)

On Wednesday, the government finally published its promised ‘emergency legislation’, after the Supreme Court ruled in November that the Rwanda scheme was unlawful. The new legislation follows the agreement of a new treaty with Rwanda on Tuesday which aimed to ‘strengthen the UK-Rwanda Migration Partnership’ and deal with the serious problems identified by the Supreme Court.

Rishi Sunak has made the small boat crossings into a totemic issue but it has now rather spun out of control. Some might argue that the main ‘emergency’ the legislation is really designed to address is a crisis in the Conservative party over the issue of migration. The new legislation may not have been strong enough for former immigration minister Robert Jenrick. But his resignation yesterday should not disguise the fact that this Bill will prove to be hugely contentious and legally problematic.

Rather than leaving the courts to determine whether the new Rwanda treaty resolves the concerns the Supreme Court had about Rwanda being a safe country, the new Bill introduces what are frequently referred to by lawyers as ‘ouster clauses’. These seek to preclude the court considering that question at all.

Clause 2 of the Bill states simply that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country.’ As Professor Steven Peers noted yesterday, this introduces an ‘apparently irrefutable presumption’ that Rwanda is ‘safe’ and would stop the domestic courts from hearing a challenge on this point.

The Bill does not stop there. It also seeks to disapply some parts of the Human Rights Act. The ouster would apply ‘notwithstanding’ any interpretation of international law (including the European Convention on Human Rights) by a court or tribunal. But this is only in respect of questions relating to the safety of Rwanda, or whether the person would receive fair and proper consideration of their claim in Rwanda.

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