AAA and Others (2023-4): Judging Rwanda

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’. This post is a part of an ongoing thematic series about the AAA and Others AAA (2023-4) Rwanda Judgement. 

The headlines and placards reading the ‘Rwanda Deal’, the ‘Rwanda Policy’ or quite simply ‘Stop Rwanda’ have dominated the UK political and media landscape since the signing of the Migration and Economic Development Partnership (MEDP) on 13 April 2022. Rwanda is imagined by those designing the MEDP as simultaneously so awful as to act as a deterrent for people pursuing dangerous journeys across the English Channel and as a safe third country’ well placed to meet all of the UK’s legal obligations as a signatory to the 1951 Refugee Convention.

Yet Rwanda is not a deal, a policy, or an imagined deterrent for people crossing the English Channel. It is a place. A country with all the resultant social complexities that come with that designation. The orientation of the litigation regarding the MEDP, the interpretation of the relevant law and the strategic decisions of the legal actors involved has meant that the UK’s first attempt to externalise its legal obligations to offer refuge has become a judicial exercise in judging Rwanda. The UK Supreme Court has judged Rwanda and in doing so has avoided establishing the UK’s own refugee responsibility sharing obligations.

The UK Supreme Court in R (on the application of AAA (Syria) and others) v SSHD held that the MEDP is unlawful because “there are substantial grounds to believe” that a person seeking asylum in the UK if sent to Rwanda, “would be at real risk of ill-treatment by reason of refoulement” (para 28). The risk is that they would be sent back to a country, directly or indirectly, in which they would be subject to human rights violations. This decision has been described by leading scholars as an impeccable example of “applying legal principles that are well-embedded in international and domestic law to very clear evidence.” It offers huge relief to the many UK asylum seekers who have already received removal notices and, as the Law Society notes, the decision should prompt a concerted effort to address the asylum application backlog and to enhance the overall provision of asylum and immigration advice in the UK.

Yet, the sense of relief within the UK legal community coupled with the deep concerns about the current UK’s governments immediate push to draft legislation under which Rwanda could be legislated to be ‘a safe country’, should not insulate the Supreme Court’s ruling in AAA from critical examination. I offer two points for further reflection. First, by focusing so singularly on Rwanda and the issue of refoulement, the decision leaves in place the Court of Appeal’s finding on the lawfulness of offshoring UK asylum applications to ‘safe third countries’. It fails to ask if the UK is meeting its own obligations to offer refuge. Second, the judgment, in supporting the need for the Court to assess the adequacy of these third countries’ asylum systems, offers a highly paternalistic account of Rwandan's capacity to interpret the Refugee Convention and neglects the crucial value of Rwanda’s open-door policy to refugee movements within the Great Lakes region. It does this even as the Court itself is offering a narrow understanding of the UK’s own international obligations under the Convention. The outcome is that the moral wrong of this immigration policy is placed firmly on the shoulders of Rwanda. Rwanda is not without fault. Yet, in the wider context of a highly racialised immigration system, this displacement of the moral wrong, in its entirety, onto the Global South is reminiscent of prior acts of colonial governance and highlights the very real limits on the willingness to discuss UK responses to the global movement of people.

The Supreme Court’s judgment in AAA centres on non-refoulement as the principal obligation established through the United Nations 1951 Refugee Convention and its 1967 Protocol (The Refugee Convention), supported by other international treaties and domestic UK legislation. The Supreme Court has articulated the required legal test as being that there are substantial grounds for believing that there is a real risk that such refoulement could occur. It comes to this test through reading the Refugee Convention in light of the case law of the European Court of Human Rights (ECrtHR), particularly in Soering v United Kingdom (1989), Ilias v Hungary (2019) and MSS v Belgium and Greece (2011). This is important interpretive work, yet the wider question of whether there is, within the Refugee Convention, an implied obligation on the UK to assess the claims of those who arrive on their shores was dismissed by the Court of Appeal and did not go before the Supreme Court. It was easier to build a legal consensus around the safety concerns in Rwanda.

The core legal outcome is that so-called ‘safe third country agreements’ are now a firm part of the UK asylum landscape. This is being done without any of the wider commitments to responsibility sharing that initially gave rise to these types of arrangements within the EU through the Common European Asylum System and the Dublin Regulations. In the current case, all that is owed to genuine refugees who arrived in the UK is that there is a judicially enforceable assurance that the next place they will involuntarily be sent to has a sufficiently safe individual refugee determination process to ensure that they will not suffer ill-treatment if move to yet another destination. It is this ‘model’ of refugee displacement that Denmark first explored and now Austria, Germany, Italy and the EU more broadly are interested in learning from.

Second, in assessing if there are substantial grounds for believing there is a real risk in Rwanda, the Court then enters the difficult evidentiary territory of judging Rwanda’s justice system. This is something that numerous foreign courts have attempted to do with notably divergent findings. In AAA, the Supreme Court strongly asserts its role in determining that risk, rather than the more limited assessment of deciding whether the Secretary of State had been entitled to form the view that there was no such risk (para 34). Its determination that Rwanda is unsafe centres on findings regarding the general human rights situation in the country, the adequacy of its asylum system, the independence of its judiciary and its compliance with assurances given under similar migration arrangements. In each of these areas, Rwanda is found wanting.

With regard to the general human rights situation in Rwanda, the Court relies on criticism of Rwanda raised at the United Nations Human Rights Council’s Universal Periodic Review, particularly “extrajudicial killings, deaths in custody, enforced disappearances and torture” (para 76) and it reiterates the Court of Appeals’ findings concerning the 2018 incident in which the Rwandan police fired live ammunition at refugees protesting over cuts to food rations, killing at least 12 people. On the question of the adequacy of Rwanda’s asylum system, the Court highlights the concerns raised by the UN High Commissioner for Refugees (UNHCR) on the role of the Directorate General of Immigration and Emigration in Rwanda (“the DGIE”) within the initial refugee screening procedures given its location within the National Intelligence and Security Service (para 79). It then finds that the safeguard offered by the appeal process to the Rwandan High Court is hampered by concerns about the independence of the judges and lawyers within the system (para 82). Finally, it emphasises the significance of the failure of Rwanda to fulfil its obligations under the Refugee Convention in the context of the earlier Israel/Rwanda arrangements (para 100).

Such an exercise – with courts outside Rwanda passing legal judgment on its domestic system – is not new. The UK Supreme Court in its judgment relies heavily on the assessment of the general human rights situation in Rwanda and the independence of its judiciary offered in the Nteziryayo case that denied the extradition of five genocide suspects to Rwanda in 2017. The Divisional Court in AAA failed to address this case at all, and the Court of Appeal and now the Supreme Court have rectified that situation. However, the Nteziryayo case is one among many. A wider outlook alerts us to decisions regarding the safety of the Rwandan justice system made by courts in France, the Netherlands, Canada, the US, Canada, Sweden, Denmark, Norway, Germany and Tanzania, including decisions by the ECtHR and the UN International Criminal Tribunal for Rwanda (ICTR). If we look across these decisions what is clear is that these courts’ judgment of the general human rights situation in Rwanda and of the independence of its judiciary is not uniform. The courts have not agreed with one another. Rwanda has been found to be both safe and unsafe simultaneously.

The reason these cases have arisen is that the Rwandan government has issued 1146 indictments for genocide suspects living abroad and has endeavoured to prosecute, extradite or deport these individuals in over 20 countries while also receiving cases transferred from the ICTR. As it stands France, the UK, Italy, Switzerland and Finland have refused to extradite genocide suspects to Rwanda, while Sweden, Denmark, the Netherlands, Norway, Germany and the DRC have allowed extradition and Uganda, Canada and the US have allowed deportations to Rwanda based on violations of immigration law.  These cases can be usefully grouped around those that have offered a positive assessment of the Rwandan judicial system and those that have not.

Where the Rwandan courts have been understood to offer a sufficiently fair and independent legal process, the focus has been on assurances from the Rwandan government and an assessment of the relevant domestic legislative framework in Rwanda. This is notable in decisions made by the ICTR and by courts in Norway, Sweden and subsequently by the ECtHR in 2011, by courts in Denmark in 2013, the Netherlands in 2016, and Germany in 2017.

Where the Rwandan justice system has been found to be insufficiently safe, the focus has been on the need to move beyond assurances and the legal framework to focus on legal practice in Rwanda. This, however, raises the significant challenge of determining what sort of evidence to rely on in assessing this practice. Here the courts have leant heavily on international sources such as Human Rights Watch reports, testimony of non-Rwandan lawyers embedded in Rwandan judicial institutions and, in the case of AAA, evidence from the UNHCR.

One of the difficulties seen across these cases is then a tendency to fall into problematic ‘capacity’ based arguments from which the AAA judgment is not immune. Supporting the findings on the real risk of refoulement, the Supreme Court re-asserts the Court of Appeal’s finding that there is “evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention” (para 104). What does it mean to have a culture of “inadequate understanding”? It is hard not to read this as a deeply paternalistic and condescending view of Rwandan lawyers and government officials. It is also a particularly difficult position to hold where the judgment itself puts forward a narrow understanding of those same obligations. The MEDP is now part of a push for Rwanda to move away from its general “open door policy” towards refugees (para 77), towards one focus on an individual refugee determination process. With over 130 000 refugees in Rwanda today it remains very unclear as to whether this push toward a highly securitized and individual refugee determination process will be in the best interest of those who cross the Rwandan border to flee persecution, inhuman or degrading treatment, punishment, or death. The Rwandan government has engaged in a high-stakes gamble to sure up its international partnerships in Europe and assert the capacity of its justice system, at least in part, to support its continued bid to have genocide suspects arrested, extradited, deported or prosecuted abroad. It is not a gamble that has currently paid off.

The Rwandan responses to the judgment have been mixed. The initial statement from the Government spokesperson Yolande Makolo was to challenge the specific evidence provided by the UNHRC, while Dr Alphonse Mulefu, a senior lecturer at the University of Rwanda has argued for the focus on Rwandan government assurances in determining the safety of the MEDP in particular. In the public discourse, the safety or otherwise of Rwanda has been interpreted as a general statement on personal security rather than as an assessment of the specific asylum procedures. The provision of personal security is one of the central tenets to the current ruling party, the Rwandan Patriotic Front (RPF)’s post-genocide social contract. The mantra is that criticism may be constrained but security will be provided. In this sense, the designation of Rwanda as ‘unsafe’ cuts much more deeply than the actual determination offered by the Supreme Court on Rwanda’s courts and asylum processes and has been met with both incredulity in some quarters or with strong support in others.

The decision of the Supreme Court in AAA offers welcome relief for many people seeking asylum in the UK and it reasserts the centrality of the international protections offered by the principle of non-refoulement yet it leaves open the door for other ‘safe third country’ agreements with refoulement as the only principled constraint. Overall, the ease with which the Supreme Court has felt comfortable judging Rwanda has come hand in hand with a deep reluctance to judge the UK.

This research forms part of the Leverhulme Trust’s grant RPG-2022-265 - ‘Renewing Positive Complementarity: Reframing Justice Relations after Atrocity’.