The Tried and Failed Business of Exporting Asylum

Guest post by Sangeetha Iengar, International Human Rights Barrister at Goldsmith Chambers.

Mere days after news broke of fixed penalty notices being issued to Senior officials who walk the corridors of Westminster, the Government promptly re-spun the news cycle with its announcement that it had brokered a deal with formerly war-torn Rwanda to export its asylum problem. In his speech on 14^th April 2022 Prime Minister Boris Johnson proclaimed that ‘from today, our new Migration and Economic Development Partnership will mean that anyone entering the UK illegally – as well as those who have arrived illegally since January 1st – may now be relocated to Rwanda.’

This response is not novel. The UK has clearly been inspired by the ‘offshore’ or ‘extraterritorial’ asylum processing scheme Australia operates in partnership with the Governments of Papua New Guinea and Nauru.  The Australian schemes have been widely criticised for failing to reach any of its intended goals. Not only have they have cost the Australian public purse a staggering £4.3 billion since 2013, and failed to deter arrivals by boat (indeed numbers of arrivals increased) they have generated an unthinkable human cost for the people refused entry to Australia. 

We know already from Permanent Secretary Matthew Rycroft that the UK’s proposed model also fails to offer value for money or to act as an effective deterrent; here, therefore, I focus exclusively on the legal implications of exporting asylum.

The Mechanics of the Deal

The Government’s announcement suggests that the Rwanda deal is a direct response to small boat crossings by single men in the Channel.  However the Memorandum of Understanding does not limit the scheme by gender or nationality.  Indeed, in theory, families of asylum seekers fleeing Putin’s war in Ukraine could also be met with a one-way ticket to Kigali.

Diving into the MoU in greater detail we learn at § 2.1 that the detention facilities and reception centres in Rwanda will not be under the UK’s jurisdiction.  Asylum seekers who had arrived in the UK and exercised their legal right under the 1951 Refugee Convention to claim asylum in the UK, would not have their claim considered by the UK but will be effectively stripped of their rights as asylum seekers in the UK once involuntarily removed territorially, and become instead subject to Rwanda’s domestic laws.

By relocating asylum seekers from UK territory, the government is attempting to shirk its legal obligations by transferring all legal, moral and territorial responsibility to Rwanda. The price? A cool £120 million upfront and £30,000 per head for each transfer.

Chapter 8 of the MoU, the shortest of the entire agreement simply requires that ‘accommodation that is adequate to ensure the health, security and wellbeing’ of the individual is provided.  The adequacy of that accommodation is not detailed with reference to any international or regional legal framework. 

As the scope of the effect of the MoU is not limited by nationality, it is unclear what the UK proposes to do with the population of Rwandan nationals seeking asylum that it now accepts.  The UK has given international protection to many people fleeing Rwanda on several different grounds.  Specific concerns have been raised for the safety of LGBTQI+ people transferred to Rwanda as the UK’s Home Office already recognises that this community face ill treatment and abuse in Rwanda.  Such matters are not dealt with in the MoU or in any of the Government’s communications.  The ‘deal’ to export legal and territorial responsibility appears to take priority over any legal, moral or human concern for the fact that Rwanda is not ‘safe’ for several vulnerable groups.

What is the Legal Basis?

The government had paved the way to introduce this scheme as far back as December 2020 (the same month as Covid partygate II) by publishing a statement of changes to Part 11 of the Immigration Rules which changed the rules on inadmissibility.

The new paragraph 345A of the Immigration Rules allows the Secretary of State to deem an asylum claim inadmissible and thereby refuse to consider it if that person has passed through a ‘safe’ country and failed to claim asylum there.  Paragraph 345A also gives the Home Secretary power to remove that asylum seeker to any other safe country around the world willing to accept them.  In practice paragraph 345A has been used only sparingly since it came into force as no State has been willing to re-admit asylum seekers who had passed through its territory.

Clauses 15 and 28 of the Nationality and Borders Bill put the mechanics of the Rwanda Proposal into the statute books.  That is, clause 15 moves the inadmissibility rule of paragraph 345A into primary legislation.  This is coupled with clause 28 of the Bill which allows for an asylum seeker to be removed from the UK while their asylum appeal is being pursued.

On the 14^th April 2022, at the stage of the announcement of the Rwanda deal however, the Nationality and Borders Bill had not received Royal Assent which begs the question – why announce the policy before Parliament has approved the Bill?  Did the media frenzy around fixed penalty notices being fired into Downing Street require such a profound policy distraction?

Is the Proposal Lawful?

As a party to the 1951 Refugee Convention, the UK has a legal obligation to give effect to Convention Rights.  It is hard to see how the proposal complies with the Convention’s regime of rights and responsibilities for refugees.

Article 31 of the Refugee Convention expressly prohibits the prosecution or penalisation of asylum seekers who enter the UK without authorisation. 

The travaux preparatoires, or the preparatory work of the Treaty, confirms the ‘ordinary meaning’ of Article 31 as applying to asylum seekers who have come directly from their country of origin or from any other territory.  Indeed, the drafting committee expressly noted ‘A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge.’ 

A latterly constituted drafting committee went further to recognise that refugees may have good cause for leaving any first country of refuge with the then representative for the UK, Mr Hoare, accepting that fleeing persecution was itself good cause for illegal entry, but there could be other good causes.

In R v Uxbridge Magistrates Court and Another, ex parte Adimi the Divisional Court of the UK conducted a thorough examination of the scope of Article 31 and the protection due and observed that ‘Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt.  Nor is it disputed that article 31’s protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely.’

In this case, Brown LJ crucially observed that the need for Article 31 had by no means diminished since it was drafted: ‘the combined effects of visa requirements and carrier’s liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents.’ 

The European Court of Human Rights in Ammur v France [§ 43] also examines the scope of Article 31 in confirming that the internationally recognised immunity from penalty that the Article confers, prevents contracting states from instituting criminal proceedings without regard to the claim for refugee status and without allowing an opportunity to make such a claim.

The Executive Committee of the Programme of the United Nations High Commissioner for Refugees in its Conclusion No.22 (XXXII) 1981, entitled ‘Protection of asylum seekers in situations of large-scale influx’ clearly reaffirms the standards set out in Article 31 as asylum seekers ‘should not be penalised or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interests of public health and public order.’

The remit of the UK’s obligations under the Refugee Convention has been clearly interpreted by the jurisprudence of its own domestic Divisional Court and by the ECtHR as well as by the observations of the Executive Committee of UNHCR.  Using any of these interpretations of the UK’s obligations under the Refugee Convention, the Rwanda export deal would breach Article 31.

The imposition of penalties without regard to the merits of an individual asylum claim will also likely be a violation of the obligation of the UK to ensure and to protect the human rights of everyone within its territory as per Article 2(1) of the ICCPR.

Furthermore, unlike Australia on which the UK model is based, the UK is a state party to the European Convention on Human Rights.  Under the ECHR, removal to a ‘safe’ country where an asylum seeker’s human rights would be violated by prolonged detention or inhuman or degrading treatment would be unlawful and contrary to Article 3 of the Convention. 

In the proposed situation where the UK accepts that Rwanda is unsafe for LGBTQI+ persons, it cannot then lawfully transfer LGBTQI+ people seeking asylum to its territory without further breaching its obligations under Articles 2 and 3 of the ECHR.

Similarly, Article 33 of the Refugee Convention prevents refoulement to a territory where a person’s life or freedom would be threatened for a Convention reason.  It is widely accepted by the European Court of Human Rights (M.S.S. v Belgium and Greece and T.I. v The United Kingdom) that where states expel asylum seekers to a third country without examining the asylum claim on its merits, this results in a breach of Article 3 rights.

Conclusion

The simple answer to the question of whether the UK can avoid its legal responsibilities towards asylum seekers and refugees by physically removing them from sight is - no.  

The failure to admit and assess asylum claims on their merits, the systematic transfer of asylum seekers from the jurisdiction and the failure to seek assurances from Rwanda on the treatment of LGBTQI+ asylum seekers and on the issue of refoulement, all forms the blueprint of a cruel, inhumane and degrading migration policy falling far short of the UK’s legal obligations. 

But in the wake of a government which proposes wave machines in the Channel, pens asylum seekers in unsafe military barracks and attempts to legitimise violent pushbacks at sea, we are left in no doubt that cruel, expensive, draconian migration policies are this Government’s favoured tool to distract from its own catalogue of failings.

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How to cite this blog post (Harvard style) 

Iengar, S. (2022) The Tried and Failed Business of Exporting Asylum. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/05/tried-and-failed [date]