Diplomatic Ties, Financial Incentives and a Narrowing of International Legal Obligations: A Reading of the UK High Court’s Decision on the ‘Rwanda Policy’

Guest post by Nicola Palmer. Nicola is a Reader in Criminal Law, Kings College London, Dickson Poon School of Law and author of ‘Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda’.

Yesterday, on 19 December 2022, the UK High Court ruled that it “is lawful for the government to make arrangements for relocating asylum seekers to Rwanda and for their asylum claims to be determined in Rwanda rather than the UK.” In doing so it upheld the externalisation of the UK’s obligations to asylum-seekers. People seeking asylum in the UK can, on the Home Secretary’s decision, be sent to another country, if that country is considered safe. The promise of safety, moreover, need only be established through non-binding diplomatic assurances and financial incentives.

This is a watershed moment. On these terms, wealthy states can send people seeking asylum on their shores to poorer nations and ‘ensure’ their safety through financial incentives.

The commentaries on AAA and others v Secretary of State for the Home Department [2022] EWHC 3230 (Admin) over the next few days will be wide and varied. The judgment may be appealed, to the Court of Appeal and from there to the Supreme Court. Under the current interim measures issued by the European Court of Human Rights, no individual can be removed to Rwanda “until 3 weeks after delivery of the final domestic decision in the ongoing judicial review proceedings.” In other words, the decision yesterday cannot be considered final, but it is significant.

At this early juncture, I will focus on two findings. First, what the Court said about whether the UK Immigration Rules meet the UK’s obligations under the Refugee Convention. Second, what the Court said about whether the Home Secretary made a lawful decision in determining that Rwanda can be considered a safe country to receive refugees. The Court’s reasoning on both of these issues brings into stark relief that any further legal challenge has to be part of a larger political project that reframes migration as a socially positive practice and the provision of refuge as a shared responsibility.

In its judgment, the Court has read its international legal obligations under the 1951 Refugee Convention extremely narrowly and has relied heavily on the Memorandum of Understanding (MoU) and Notes Verbales (NV) underpinning the UK agreement with Rwanda as being sufficiently “specific and detailed” (para 66). This view of the MoU is coupled with a strong emphasis on the assumed behavioural effects of the financial incentives that the UK is offering Rwanda, which in the view of the Court will offer “a clear and significant incentive towards compliance with the terms of the arrangement” (para 65). Given the Court’s very narrow reading of the UK’s obligations under the Refugee Convention, the decision largely turns on the lawfulness of the Secretary of State for the Home Department’s assessment of Rwanda’s safety. The Court found that the Secretary of State had offered a “thorough examination” of “all relevant generally available information” of the type envisaged by the European Court of Human Rights” (para 59) in making her determination that the Claimants would not face a real risk of being subjected to inhumane or degrading treatment or punishment in Rwanda. This “thorough examination” relies heavily on the UK’s use of financial incentivises to ensure Rwanda’s compliance with its legal obligations.

The legal framework under judicial review

To understand the significance of the High Court decision, we must examine the UK’s current legal framework on asylum inadmissibility. Sending people seeking asylum in the UK to another county is underpinned by a two-step legal process, which gives the Home Secretary significant decision-making discretion.

First, the Secretary of State for the Home Office, currently Suella Braverman, has the power to declare an asylum claim made by a person who has arrived in the UK as inadmissible. This used to be done under Paragraph 345 of the Immigration Rules. These Rules are the focus of the current Judicial Review decision. They have subsequently been incorporated into secondary legislation under Section 16 of the Nationality and Borders Act 2022, as it amends Section 80 of the Nationality, Immigration and Asylum Act 2002. The basis for inadmissibility is the same in both: that the Claimant, the person seeking asylum in the UK, ‘has a connection to a safe third State’. This connection can be established through various means, the broadest of which is that ‘it would have been reasonable to expect’ that the person made an asylum claim in a safe country en route to the UK. This is step one.

Step two occurs once an application is deemed inadmissible, when the Home Secretary has the power to remove that Claimant to ‘another safe third country’. This second step was previously determined under Paragraph 345C of the Immigration Rules and is now also included under Section 16 of the Nationality and Borders Act 2022. Under the further ‘Inadmissibility Guidance’, if a person’s claim is deemed inadmissible under this two-step process and their journey to the UK could be described as having been dangerous then they are eligible for removal to Rwanda.

Does this inadmissibility framework meet the UK’s obligations under the 1951 Refugee Convention?

In my view this is where the heart of the issue lies. It has not, however, been the major focus of the judicial review. In eight short paragraphs, Lord Justice Lewis and Mr Justice Swift have found that the only obligations owed to individuals seeking asylum on UK soil, to meet the purpose of the Convention, are those of non-refoulment. Under Article 33 of the Convention,

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

In the words of the Court, “the protection that is necessary if the purpose of the Convention is to be met, is provided by article 33 (para 121).” There is no engagement by the Court with the purpose of the Convention beyond this narrow protectionist reading.

Under the Preamble of the 1951 Convention, any asylum arrangements should advance international cooperation to uphold refugee protection, enhance burden and responsibility sharing and be consistent with the widest possible exercise of the fundamental rights and freedoms of asylum seekers and refugees. The Refugee Law Initiative Declaration on International Externalisation has recently stated that international law principles suggest that States are allowed to externalise elements of their asylum functions for good faith reasons – for example, to relieve an excessive burden on a country of first asylum in the context of the mass migration of people. This is not what the UK is currently facing. Displacing these obligations to less economically and politically powerful ‘third countries’ is far from a notion of acting for good faith reasons.

Following the Court’s decision, the UNHCR has restated its position that the MoU between the UK and Rwanda ‘does not contribute to burden-and responsibility sharing.’ It is not clear, however, whether this wider purposive argument was raised by the Claimants. The judgment suggests that the broader claim was that there is an obligation to process all claims from people who arrive on UK territory. The narrow reading of an obligation only for non-refoulment then provides the basis for the Court to reject the Claimant’s challenge that the removal of asylum seekers to Rwanda is contrary to Article 31 of the Refugee Convention. This Article prohibits the penalisation of refugees on account of their illegal entry. For the High Court, expulsion of refugees is legal. Citing the writing of Andreas Zimmerman, James Hathaway and Paul Wies, the Court found that:

“Article 31 does not prevent a state expelling a refugee. States must not act in breach of article 33; removal that is not contrary to article 33 is not a penalty for the purposes of article 31. (para 125)

According to the High Court, removal to a safe third country is legal; the only question is whether Rwanda can be considered a safe third country.

As it stands, this reading of the UK’s international legal obligations establishes the safety assessment of another country as the key obligation that the government has to meet. Yesterday it was an assessment of Rwanda’s safety; going forward it may well be an assessment of a range of other countries. It is here that a pro-migrant political argument that challenges Section 16 of the Nationality and Borders Act 2022, as well as a pro-refugee legal argument based on a more holistic reading of the Refugee Convention, must be made and won.

How has the safety of Rwanda been assessed?

The High Court found that the Home Secretary’s determination that Rwanda was ‘a safe third country’ was sufficient. It found she had undertaken a “thorough examination” of “all relevant generally available information” in line with the ECHR obligations established under the Ilias case and that she had asked herself “the right question” and took “reasonable steps to acquaint [herself] with the relevant information to enable [her] to answer it correctly” in line with the duty requirement in the Tameside case. In determining this finding, the Court relied heavily on the Home Office’s process of compiling the initial country assessment documents, negotiating the MoU and the Notes Verbales, and in considering the further information that became available from the UNHCR and the Rwandan authorities during the judicial review proceedings.

The diplomatic relations between the UK and Rwanda are drawn in the Court’s reliance on the MoU and the Notes Verbales. Quite bizarrely, this decision turns on points of previous diplomatic tension between the two countries. In 2012, the UK briefly suspended its budget support to Rwanda, “in response to Rwanda’s involvement in the so-called ‘M23 Rebellion’ in the Democratic Republic of Congo” and in the words of the Court “in 2014 the relationship was further reviewed in response to the assassination in South Africa of a Rwandan dissident” (para 64). This leads the Court to find that “while there is a significant history of the two governments working together, the Rwandan government has reason to know that the United Kingdom government places importance on Rwanda’s compliance in good faith with the terms on which the relationship is conducted” (para 64).

This can only be read as a statement that the MoU can be trusted because the UK government has previously tried to used aid withdrawal as a political tool to affect the behaviour of the Rwandan government. There is no comment on the effectiveness of this use of aid as a bargaining chip, or a discussion as to whether this is an appropriate means of diplomatic relations. The withdrawal of aid may in practice only hurt the most vulnerable people in Rwanda and induce very little change in the government’s behaviour.

The wider concerns regarding the political setting in Rwanda, including the capacity for refugees to protest or exercise political dissent, are also understood to be solved through the threat of, or the actual withdrawal of, financial incentives. Of all the examples raised by the Claimants, the Court draws attention to an incident in 2018 at Kiziba refugee camp, where it was reported that police entered the camp in response to refugee protests and used excessive force, including firing on and killing 12 people. The Court finds that:

We do not consider that any direct inference can be drawn from the events at Kiziba refugee camp in 2018. The circumstances that led to those protests are unlikely to be repeated for any person transferred to Rwanda under the [current scheme] (para. 74).

The Claimants’ arguments that these types of political protest may arise in the future is described as ‘speculative’ (para 77) and there is a strong emphasis on the behavioural effects of the financial incentives and the robustness of the bespoke monitoring mechanisms under the MoU in the form of the Joint Committee (paragraph 21 of the MOU) and the Monitoring Committee (paragraph 15 of the MOU). In the words of the Court, “the advantages that accrue to the Rwandan authorities from the MEDP provide a real incentive against any mis-treatment (whether or not reaching the standard of article 3 ill-treatment) of any transferred person” (para 77). In a context of the transfer of people from wealthier developed countries to less geo-politically and socio-economically powerful countries, this reliance on financial incentivises to ensure compliance with legal obligation is particularly concerning.

Overall, the High Court decision focuses on the Home Secretary’s assessment of Rwanda and supports a very narrow reading of the UK’s international obligations under the Refugee Convention. The assessment of Rwanda’s safety turns heavily on an assumption about the appropriate use of financial incentives to induce the Rwandan government’s compliance with the MoU. Much of the immediate commentary after the decision has highlighted that even though the policy is currently deemed lawful, practically the requirement of individual inadmissibility assessments and the past practices of the Home Office suggest that very few people seeking asylum will be sent to ‘another safe third country’, Rwanda or otherwise. Yet it is doing much broader social work as a political project aimed at expressing and building an exclusionary and isolationist sense of belonging in the UK. The High Court decision shows how this policy must be fought on the terms on which it is operating. It must be fought in parliament and on the doorsteps as much as it must be fought in the courts.

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