On 15 November, in an eagerly awaited decision, the Supreme Court of the United Kingdom (UK) dismissed an appeal of the British Secretary of State in R (on the application of AAA (Syria) and others) v. Secretary of State for the Home Department and unanimously upheld the decision of the Court of Appeal that had correctly reversed the decision of the Divisional Court. The Supreme Court stated that there existed substantial grounds for believing that asylum seekers sent to Rwanda may be at risk of refoulement, being transferred to a country where they could be persecuted, mistreated, tortured or even killed. It thus confirmed the illegality of the controversial plan of Rishi Sunak's government to deport asylum seekers to Rwanda, irrespective of their origin, in case of illegal arrival on British soil, in line with its "Stop the boats" policy aimed at deterring people from undertaking dangerous journeys by sea and strengthenning border security measures.
UK-Rwanda: concerns about the asylum partnership agreement
In April 2022, the UK and Rwanda agreed a Migration and Economic Development Partnership (MEDP), under which a Memorandum of Understanding (MoU) was concluded between the two States in the form of an “Asylum Partnership Agreement”. As per this scheme, the asylum seekers in the UK would have their claims considered by Rwanda after being relocated to that country, in accordance with the international standards established by the 1951 Refugee Convention and with Rwandan immigration laws. Moreover, claimants were to be protected against inhuman and degrading treatment and refoulement: a monitoring committee for reporting on implementation was set up, and provisions for the protection and humanitarian needs of those whose applications had been rejected – including provisions for an appeal to the relevant ministry and a second appeal to the High Court – were also approved. In return, the UK agreed to settle a portion of Rwanda’s most vulnerable refugees, and paid a lump sum of more than 120 million pounds to Rwanda.
Despite these provisions, the United Nations High Commissioner for Refugees (UNHCR) has expressed numerous concerns about the implementation of this system of “externalization” of asylum obligations, due to the serious risks it poses for refugees, and about the ability of Rwandan authorities to fairly assess asylum applications. In this respect, as noted by the Supreme Court, the main concern is the processing of asylum applications:
“79. First, there are concerns which relate to the asylum process itself. The initial stage in the process is the responsibility of the Directorate General of Immigration and Emigration in Rwanda (‘the DGIE’), which is an entity within the National Intelligence and Security Service. Under Rwandan law, its role is to undertake the necessary preparation of asylum claims for determination by another body, the Refugee Status Determination Committee (‘the RSDC’). The main function of the DGIE under the law is to conduct interviews with asylum claimants. However, although it is not authorised by law to reject asylum claims, it is said that the DGIE summarily rejected 8% of the asylum claims of which UNHCR was aware between 2020 and June 2022. UNHCR’s evidence is that the true number of rejections by the DGIE is likely to be higher. Where this has occurred, no written reasons have been provided, and there is no right of appeal (since the law makes provision for appeals only against decisions taken by the RSDC). RSDC has the power to consider a claim which the DGIE has failed to refer to it, but UNHCR has no experience of this ever occurring.”
This means that the Directorate General of Immigration and Emigration (DGIE), which conducts interviews with asylum seekers in the early stages of the asylum procedure, has a high rate of rejections – although it is not empowered to decide –, thus depriving applicants of a right of appeal, which is only available against the refugee status determination. Furthermore, with regard to the subsequent stages, the Supreme Court observed:
“80. The next
stage in the process is the consideration of claims by the RSDC. That committee
comprises senior representatives of the principal government departments and
agencies, including the Prime Minister’s Office and the National Intelligence
and Security Service. They sit part-time on the RSDC and are non-specialist.
Where the RSDC provides written reasons for its decisions, they are often
perfunctory: the evidence includes RSDC decision letters, including several
issued after the conclusion of the MEDP, which rejected asylum claims either
without reasons, or with reasons which were merely formulaic. For example, a
standard response from the RSDC in July 2022 was that “Refugee Status requested
was not granted because you don’t meet the eligibility criteria, and the
reasons you provided during the interview were not pertinent.”
“81. The next
stage in the process is the possibility of an internal administrative appeal to
the responsible minister. There have been comparatively few such appeals (there
appear to have been five in 2021). In practice, the absence of reasoned
decisions makes it difficult to address the basis on which the claim was
rejected. No reasons are given for the minister’s decision on the appeal.”
Even the Refugee Status Determination Committee, which conducts further interviews on DGIE files, is comprised of non-experts who can reject claims without providing reasons, thus reducing the number of appeals to the Ministry, who itself can refrain from a speaking order. Concerning this final stage, the Supreme Court observed that:
“82. The final stage in the process, as laid down in law, is a right of appeal to the High Court (with the possibility of a further appeal to appellate courts). The reliability of the safeguards in the Rwandan asylum system ultimately depends on this right of appeal: it is the only stage in the process at which claims can be considered by anyone other than government officials or ministers. Although a right of appeal has existed since 2018, there has never been such an appeal in practice. The system is therefore untested, and there is no evidence as to how the right of appeal would work in practice. There are, however, concerns about the willingness of the judiciary to find against the Rwandan government.”
At the stage of final appeal before the High Court the situation is even worse, as the system remains untested because the Court has not yet experienced a single case since the existence of this right of appeal. In addition, the potential lack of judicial independence from political influence, and the 100 percent rejection rate for people from conflict zones (namely Afghanistan, Syria, and Yemen), continues to haunt the system.
Another cause of concern is the practice of refoulement in Rwanda. The UNHCR attributes the refusal of applications from non-African asylum seekers (Middle-Easterners and Afghans) to the Rwandan authorities, who consider that such claimants should apply in their own region. As an illustration, the judgement of the UK Supreme Court took note of the following facts:
“87. (…) UNHCR reported six recent cases of expulsion of persons who claimed asylum on arrival at Kigali airport, some of which resulted in refoulement or would have done so if UNHCR had not intervened. Two Libyans were removed from the airport in February 2021 and sent to Egypt; a person from Yemen was removed from the airport in September 2021 and sent to Ethiopia, where UNHCR intervened to prevent his onward refoulement to Yemen; two Afghans were refouled to Afghanistan (via Dubai) on 24 March 2022, while the MEDP was being negotiated; and a Syrian was refouled to Syria (via Turkey) on 19 April 2022, after the MEDP had been concluded.”
It is also worth noting that the human rights record of Rwanda has been subjected to criticism, with the national authorities accused of being involved in political assassinations. This even led the British police to warn the Rwandan nationals in the UK against such practices (Government of Rwanda v. Nteziryayo and Others (2017)). Moreover, the UK has criticized Rwanda for extrajudicial killings, deaths in custody, enforced disappearances and torture at the 2021 UN Human Rights Periodic Review.
Supreme Court’s Appeal: Brief Analysis under International and Domestic Commitments
The UK and Rwanda are both parties to the 1951 Refugee Convention and its 1967 Protocol. In addition, the principle of non-refoulement enshrined in Article 33 of the 1951 Geneva Convention has risen to the status of customary international law, as recognized by the UK in the 2001 Declaration of States Parties to the 1951 Convention and or Its 1967 Protocol relating to the Status of Refugees.
In
domestic law, the UK has ratified the concept under Section 2 of
the Asylum and Immigration Appeals Act 1993, the
Nationality, Immigration and Asylum Act 2002, and the
paragraph 17 (c)(ii) of Schedule 3 to the Asylum and Immigration Act 2004,
which enables the Secretary of State to certify, where it is proposed to remove
asylum seekers to a country of which they are not nationals, that they are
not in need of return. In the words of the UK Supreme Court, it is observed
that:
“7. At the time of the decisions with which these proceedings are concerned, it was also necessary, in order for an asylum seeker to be removed to another country while an asylum claim was pending, for the Secretary of State to certify, under paragraph 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (‘the 2004 Act’), that the country in question was a place where the asylum seeker’s life and liberty would not be threatened by reason of race, religion, nationality, membership of a particular social group or political opinion, and from which the asylum seeker would not be sent to another state otherwise than in accordance with the Refugee Convention.”
Therefore, as per paragraph 12 of Schedule 3 to the Asylum and Immigration Act 2004, the certification under the said paragraph 17(c)(ii) of the Act is an integral part of the State Secretary’s decisions to displace the asylum seekers to Rwanda. However, it has been held that the certificate as provided under paragraph 17(c)(ii) can only be issued where there is no real risk that the claimant shall be sent to a country other than those provided for in the Refugee Convention (R v. Secretary of State for the Home Department, Ex parte Canbolat (1997)).
The Supreme Court observed that the Divisional Court had erred in adopting an approach wherein it refrained from making its own assessment of the existence of substantial grounds for believing that the asylum seekers will face real risk of refoulement in Rwanda. Indeed, it relied solely on the executive’s reasoning, which stood exclusively on the assurances given under the MoU, and in complete disregard of the evidence presented by UNHCR concerning the “history of refoulement” in Rwanda.
This approach also stood in contradiction to Article 3 of the European Convention on Human Rights on the “Prohibition of torture”, and more specifically to the test established in Soering v. United Kingdom (1989), which the Court of Appeal correctly applied, coming to the conclusion that real risks of refoulement existed in Rwanda. According to the “Soering test”, it is the duty of the contracting party under Article 3 not to subject a person to torture, inhuman or degrading treatment. Furthermore, the contracting party shall not displace persons to other countries where there are substantial risks of ill-treatment.
It is here that the Divisional Court failed, the “Soering test”, requiring the Supreme Court to self-ascertain whether there existed substantial grounds for believing that the removal of the asylum seekers to Rwanda would expose them to a real risk of refoulement to another country. As stated in the Judgement of the UK Supreme Court:
“34. (…) the Divisional Court held
that the Secretary of State’s policy was lawful. The Court of Appeal reversed
that decision, by a majority. They did so on the basis, first, that the
Divisional Court had applied the wrong legal test when considering the refoulement
issue. The correct test, derived from Soering, requires the court to decide for
itself whether there are substantial grounds for believing that the removal of
asylum seekers to Rwanda would expose them to a real risk of ill treatment, as
a consequence of refoulement to another country. The assessment is one which
must be made by the court. The majority of the Court of Appeal considered that
the Divisional Court had mistakenly dealt with the issue on the basis that the
court’s role was confined to deciding whether the Secretary of State had been
entitled to form the view that there was no such risk.”
The said risk was to be judged in light of all the factors from the past, present and future promised scenarios. Even the Committee Against Torture and the Human Rights Committee – respectively created under the 1984 UN Convention Against Torture and under the 1966 International Covenant on Civil and Political Rights, i.e. two instruments to which the UK is a party – have adopted the same approach. Additionally, the European Court of Human Rights, in Othman (Abu Qatada) v. United Kingdom (2013), as well as the UK Supreme Court in Zabolotnyi v. Mateszalka District Court, Hungary (2021), held that extradition must be based on a free evaluation of the assurances given by a State that individuals would be treated in compliance with Article 3 of the European Convention on Human Rights, after examining all the evidence, including past breaches of similar assurances and present circumstances. Consequently, a thorough assessment of all the factors is required before any decision.
Corresponding Case Study: The Italy and Albania Agreement
A recent example of a similar arrangement can be witnessed in the case of the agreement between Italy and Albania, signed on 6 November 2023. This one is arguably not identical to the UK-Rwanda agreement. Unlike the latter, the Italy-Albania agreement de facto creates an “Italian jurisdictional enclave in Albanian territory”, where the asylum application is to be assessed in accordance with the legislation of Italy and of the European Union (EU), with the Italian judge (and not the Albanian one) responsible for adjudicating the disputes. A similar clause does not exist under the UK-Rwanda agreement.
The Italy-Albanian agreement provides that Italy will open two migrant reception centres in Albania, able to accommodate up to 3,000 migrants from spring 2024, i.e. around 39,000 per year. Funded by Italy, the agreement applies only to people rescued by Italian ships in the Mediterranean, and not to those who first arrive on Italian soil, and does not apply to minors, pregnant women, and other vulnerable people.
This agreement has caused controversy in both countries, due to the lack of political consensus, but also within the EU, which has warned that it will have to comply with international refugee law, whose central norm is the principle of non-refoulement, as well as fundamental rights of general application, such as the right not to be arbitrarily detained and the right to a judge. According to the Dublin Regulation of 2013, currently in force, refugees must file their asylum application in the first European country they enter, but Mediterranean countries complain that they have to shoulder a disproportionate burden. To address these complaints, the EU is currently finalizing a reform of its migration policy, including a strengthening of the EU’s external borders and a compulsory solidarity mechanism between EU countries for asylum seekers.
Although for Albania this agreement is certainly a way of gaining Italy’s support for its candidacy to join the EU, the application of the agreement raises several concerns, including the danger that asylum seekers in Albania could be exposed to refoulement, the risk of a different treatment for those whose asylum applications will be examined in Albania and those for whom this will take place in Italy, not counting the inhumanity of potentially forcing distressed asylum seekers to sail back and forth between Italy and Albania.
Coming back to the UK-Rwanda agreement, although irregular arrivals across the Channel pose considerable challenges, as the UNHCR declared, they certainly call for “practical, workable alternatives to the MEDP arrangement, including through cooperation with European neighbours in the spirit of responsibility-sharing which lies at the core of the Refugee Convention”, as well as “[f]air and fast asylum procedures that respect international standards (…) to secure the safe and dignified return of those found not to be in need of protection.”
In this
respect, the decision of the Supreme Court of 15 November is certainly a
commendable one, because apart from upholding the 1951 Refugee Convention, it
also prevented MEDP from setting a precedent for many other violations in the
field of international law. However, whereas the Rwanda plan was deemed
unlawful and was not implemented – as the first
flight was prevented from taking off by the
European Court of Human Rights in June 2022 – the UK government could replicate
it in other countries considered “safe” for asylum seekers. In this respect, as
Human
Rights Watch has stated, it is important that the UK creates “a
functioning and fair asylum system that treats people with compassion and
allows them to find refuge in the [country]”.
British Prime Minister Rishi Sunak holds a press conference, following the Supreme Court ruling on the deportation of asylum seekers to Rwanda, at Downing Street, November 15, 2023 in London. via REUTERS - POOL
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