Who gets to belong in the UK? Rwanda and the Illegal Migration Bill.

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’.

Suella Braverman was in Kigali on 19 and 20 March 2023 to shore up UK-Rwanda diplomatic ties while promoting the plan to send people seeking asylum – and potentially more broadly anyone who enters the UK outside of the current immigration rules – to Rwanda. Here in the UK, a small central African country has become the symbol of a wider political and legal battle, playing out in the Illegal Migration Bill, the Nationality and Borders Act 2022 and before the courts over who gets to belong in the UK. What is at stake is the use of law to marginalise very vulnerable people.

The workability of the new Illegal Migration Bill, currently being debated by Parliament, hinges on having ‘return agreements’, or to use the UK Government’s preferred phrase ‘Migration and Economic Development Partnerships’ (MEDPs), in place. The Rwandan MEDP is currently the UK’s major ‘return agreement.’ The judicial review case concerning the lawfulness of the Rwandan MEDP is before the Court of Appeal, to be heard from 24 to 27 April 2023. What happens in this case is deeply entangled in the latest episode of rushed law-making found in the Illegal Migration Bill and that of the Nationality and Borders Act 2022 that preceded it. It is important that these legal developments are examined together as a single set of ideas, policies and laws that are setting the terms of who is legally ‘eligible’ to stay in the UK, who can and cannot ‘belong’.

The Illegal Migration Bill is designed to realise Braverman’s “dream” and “obsession” to send people seeking asylum in the UK to Rwanda. As it stands sending people to Rwanda is the only way that the Illegal Migration Bill, once in force, could have any effect. The two developments are co-constitutive. Since the first Rwandan flight was grounded on 14 June 2022, after the European Court of Human Rights issued Rule 39 interim measures, requiring the courts of England and Wales to issue a “final domestic decision” on the policy’s legality, the UK government has focused on removing “key barriers” to get “flights off the ground”. These so-called barriers are the UK’s existing legal obligations.

The government is receiving legal advice, not on how to act within the boundaries of the law, but rather on how to alter the law to be able to act. The desired action is the large-scale removal of immigrants entering the UK outside of the normal immigration laws. This has required rapid legislative change. It is important to understand the Rwandan MEDP as a key component in effecting this action. It has also started to drive the action itself. The action has become sending people to Rwanda.

To send anyone from the UK to Rwanda, under the Nationality and Borders Act, their asylum claim must first be deemed inadmissible, or, under the new Illegal Migration Bill, they must have arrived in the UK without “leave to enter” and thus be deemed “ineligible” to make any claims for asylum.

The Home Secretary has the power to declare an asylum claim inadmissible and now potentially a duty to remove those who are ineligible. For the case currently before the Court of Appeal, a determination of inadmissibility was previously made under Paragraph 345 of the Immigration Rules. These Rules are the focus of the Division Court’s decision in AAA and others v Secretary of State for the Home Department [2022] EWHC 3230 (Admin) , which is now under appeal. These Rules 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.

In addition to the inadmissibility determination, the capacity to send someone to Rwanda was previously determined by the Home Office’s “Inadmissibility Guidance”. As outlined in AAA and others, the operative part of this guidance is that:

An asylum claimant may be eligible for removal to Rwanda if their claim is inadmissible under this policy and (a) that claimant’s journey to the UK can be described as having been dangerous and (b) was made on or after 1 January 2022. A dangerous journey is one able or likely to cause harm or injury. (para 17)

The Illegal Migration Bill, following the previous logic of the Nationality and Borders Act brings this guidance into secondary legislation. It states that all people who enter the UK without valid entry clearance after 7 March 2023 will automatically be ineligible to make an asylum claim. This creates a duty on the Home Secretary to then send them either back to their home country in the case of European Union and Albanian nationals or to another country listed in the Schedule at the end of the draft Bill. Rwanda, unsurprisingly but nonetheless crucially, is included on this list.

If the Illegal Migration Bill is read alongside the Nationality and Borders Act 2022 and the current judicial review, then the case before the Appeals Court is hugely important, particularly as it relates to the compatibility of the Rwandan MEDP with the UK’s obligations under the 1951 Refugee Convention and those set out in Article 6 of the European Convention on Human Rights (ECHR). The Divisional Court has given leave to Appeal on grounds relating to both issues.

Rwanda has positioned itself at the very heart of this process of European exclusionary politics - the racialised determination of who does and does not belong. The case of AAA, the Nationality and Borders Act and the Illegal Migration Bill all address who does and does not belong in the UK – or, to be more specific, who can and cannot make an application to belong in the UK. Understanding this, helps to explain some of the particular cruelties in the Illegal Migration Bill, such as the current Clause 30 under which people who are deemed ‘ineligible’ due to their mode of arriving in the UK cannot apply for British citizenship and neither can their children. They and their descendants can never belong.

Simultaneously, this battle over belonging has been unfolding in the realm of citizenship in the UK more broadly. As Maria Aristodemou has shown with regard to the removal of Shamima Begum’s citizenship and as Zainab Batul Naqvi then illustrates within the wider practice of citizenship deprivation, it is racialised and minoritised citizens who are most at risk. The numbers of people seeking asylum in the UK are currently low. There is no crisis. However, the situation described above prefigures the future politics of belonging where increasing climate instability will prompt further movement of people. As Harsha Walia argues:

the classifications such as “migrant” or “refugee” do not represent social groups as much as they symbolize state-regulated relations of difference and state-manufactured conditions of vulnerability. While the rich from wealthy states enjoy borderless mobility—as global investors, bankers, expats, or hipster tourists—racialized poor people are subjected to discursive and material criminalization and illegalization.

The effect of this brutal combination of law and policy making seen in the Illegal Migration Bill, the Nationality and Borders Act and the Rwanda MEPD will not deter the movement of people now or in the future. All the evidence suggests that these types of punitive measures do not stop people in desperate situations moving. What it will do is push people into using more dangerous routes, trying to land in the UK rather than to be rescued in its territorial waters. They will try to avoid detection by the Home Office altogether, entering the UK as the most marginalised of people: a workforce that cannot work legally, cannot unionise, cannot register at a GP’s surgery, cannot vote and cannot access any state support. This scenario offers the legal foundations for further building a global underclass of vulnerable people – vulnerable workers who will be subject to economic exploitation.

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