After the Safety of Rwanda (Asylum and Immigration) Bill 

Blog post by Nicola Palmer. Nicola is a Reader in Criminal Law at Kings College London and a thematic lead for Border Criminologies work on ‘Law and the Courts’. She is the author of ‘Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda’. 

The Safety of Rwanda (Asylum and Immigration) Bill is first and foremost about the UK and its growing practice of anti-immigrant law-making. At its heart, this legislative project has succeeded in shifting the UK’s international obligations under the 1951 Refugee Convention onto Rwanda. This shift is explicit in the wording of the Bill itself. Under Clause 1 (5) (a) a ‘safe country’ for the purposes of the Bill is defined as a country that will act ‘in compliance with all of the United Kingdom’s obligations under international law’. It goes on to designate that all decision-makers must consider Rwanda as safe within this definition.  

As the Bill moves forward for Royal Assent, the focus has immediately turned to the possibility of further legal challenge. However, if we look at the legal change that has been generated since the advent of the Migration and Economic Partnership Agreement’ (MEDP) signed between the UK and Rwanda in April 2022, what becomes clear is that the answer to the inhumanity at the heart of the Safety of Rwanda (Asylum and Immigration) Bill cannot be found in the courts alone. 

Now is the time for a political project that makes the positive case for migration and for the offering of refuge in the UK. Despite overwhelming evidence of the social, economic and cultural value of immigration as well as the importance of international human rights protections, neither of the major parties in the UK appear willing to make this case. Labour MPs voted against the Bill but the Labour Party’s position on immigration is that “it will have new agreements with France and other countries on returns and family reunion”. The lack of a real alternative pro-immigration political project makes the passing of the Safety of Rwanda (Asylum and Immigration) Bill and the extensive legal change that has preceded it far more socially, legally and politically damaging. It provides the legal basis for the UK to forcibly send vulnerable people to other countries and reduces the political debate around this practice to whether Rwanda should or should not be considered suitably safe to receive specific individuals.  

The Safety of Rwanda (Asylum and Immigration) Bill legislates Rwanda as ‘safe’ and in doing so further entrenches the use of regressive ‘safe third country’ agreements by which wealthy countries transfer their international legal obligations onto less economically powerful countries. The Bill must be read in the context of the UK/Rwanda Treaty, the Illegal Immigration Act 2023 and the Nationality and Borders Act 2022, all of which hollow out the substantive protections offered by the Refugee Convention to people arriving in the UK after fleeing persecution and conflict.  

Making Anti-Immigrant Politics into Law  

Under the Illegal Migration Act 2023, any person arriving on UK shores on or after 20 July 2023 without prior immigration permission will automatically be designated as ineligible to apply for asylum. As there is no mechanism to apply for asylum in the UK from outside, this Act when it comes into force renders the vast majority of refugee applications automatically inadmissible. Desperate people arriving on UK shores will simply be unable to apply for refuge in the UK. But they will still arrive.  

As of the 14 April 2024, a total of 73, 239 asylum claims had been registered on or after 7 March 2023 and have been designated ineligible for leave to remain in the UK and all those who claim asylum having arrived on or after 20 July 2023 will be deemed automatically ‘inadmissible’. Many of these individuals are refugees who have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. They are currently in a legal limbo in the UK, housed in, at times, appalling conditions on barges and in hotels, at enormous cost to the state. Under the Safety of Rwanda (Asylum and Immigration) Bill coupled with the UK/Rwanda Treaty, it is now envisaged that those who cannot be returned to their country of nationality will be sent to Rwanda, which will then be responsible for the determination of their asylum claims. The Safety of Rwanda (Asylum and Immigration) Bill has been drafted with the specific intention of limiting legal challenges to this migration arrangement. Under the Bill legal appeals to forcible deportation can only be made based on compelling evidence that an individual would be at risk of ill-treatment in Rwanda and not that they would risk being refouled to another country. 

The original MEDP is now underpinned by the ‘UK-Rwanda treaty: provision of an asylum partnership’. This Treaty was signed on 5 December 2023, and makes the 2022 Memorandum of Understanding (MOU) and the Notes Verbales between the UK and Rwanda legally binding, while requiring Rwanda’s establishment of a new asylum procedure. Both the Treaty and the Safety of Rwanda (Asylum and Immigration) Bill were drafted as a response to the UK Supreme Court’s decision in AAA (Syria) and others which found the initial migration agreement unlawful. 

The Supreme Court’s concern was not, as much of the popular press suggests, that Rwanda as a country was unsafe. Instead, it presented a much more limited finding that “the present deficiencies in the Rwandan asylum system” (para 102) were sufficiently severe that there was a real risk that a genuine refugee’s claim could be refused and they could then be sent to another country where their life or freedom would be threatened. It was in this context that the Supreme Court held that 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 principle of non-refoulement is found in a range of international and municipal legal instruments including Article 33(1) of the 1951 Refugee Convention. It establishes that a refugee cannot be sent to another country where their “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The risk identified by the Supreme Court was not of ill-treatment in Rwanda generally but concerns regarding Rwanda’s individual refugee status determination process specifically. 

The key to understanding why the Safety of Rwanda (Asylum and Immigration) Bill was drafted in its current form was that the Supreme Court ruled that the only legal limit on ‘safe third country’ agreements is found in the principle of refoulement and in that principle alone. The broader and more progressive argument that there is an implied obligation on states that are bound by the Refugee Convention to determine the refugee status of those people who arrive on its territory was dismissed at the Court of Appeal stage and did not reach the UK’s apex court. The argument that such agreements must be in line with a commitment to international cooperation as articulated in the Preamble of the Convention was not raised.  

Refoulement was left as the only legal limitation on safe third-country agreements. The Supreme Court found that an assessment of whether there was a substantial risk of refoulement required an evidential assessment of how the receiving state’s asylum system operates in practice (para 45). The Safety of Rwanda (Asylum and Immigration) Bill is designed to remove this evidential assessment and to replace it with treaty-based government assurances from the UK and Rwanda which includes a monitoring process.  

The UK is not alone in adopting safe third-country agreements. However, it has endeavoured to bypass most of the legal limitations on such agreements. The EU Council Directive 2005/85/EC allows EU member states to send individuals whose asylum applications have been deemed ‘inadmissible’ to any other ‘safe third country’ to have their claims adjudicated there. However, it recognises that this practice is constrained by a set of criteria for what constitutes a safe third country and would be subject to rules laid down in national legislation, including rules requiring a connection between the person seeking asylum and the third country concerned. No such constraint has been recognised by the UK courts. 

In the emancipatory language of Third World Approaches to International Law (TWAIL), the fundamental problem with the Safety of Rwanda (Asylum and Immigration) Bill is not the safety or otherwise of Rwanda but rather that an increasingly limited notion of ‘safety’ constitutes the only constraint on First World states displacing all of their international legal obligations to offer refuge onto Third World states. It is this ‘model’ of regressive ‘safe third country agreements’ that Australia championed and that is now being discussed in  Denmark, Austria, Germany, Italy and the EU more broadly. It is this model that must be politically challenged as legal challenges alone have already proven insufficient.  

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