THE SITUATION

On 14th April 2022, the UK government announced a memorandum of understanding with the Rwandan government for the provision of an asylum partnership. The plan is to consider any adult who enters the UK without authorisation for relocation to Rwanda, meaning that the agreement is aimed at those who arrive in the UK through “illegal, dangerous, and unnecessary” methods, and where they could have claimed asylum in another “safe” country like France. Despite the 1951 Refugee Convention not stipulating that a person must stay in the first safe country in which they arrive, and that often those fleeing do not always have recourse to legal methods, the UK government seems adamant that their plans must work. This article will outline the current issues with the government’s plans, the legal challenges over the Rwanda plans, and highlight the implications this could have for the Human Rights Act 1998. 

THE ISSUE WITH THE GOVERNMENT’S PLANS

The UK is a state party to the Universal Declaration of Human Rights 1948 (UDHR), and article 14(1) of the UDHR states that “everyone has the right to seek and to enjoy in other countries asylum from persecution”. This means that in law it is a human right to seek asylum. In a previous Human Rights Pulse blog, Nigel Chidombwe explained the legality of the asylum partnership between the UK and Rwanda under international law, highlighting that the agreement undermines the 1951 Refugee Convention and the principle of non-refoulement. Therefore, the first issue with the government’s current plans is that they violate international law and undermine basic principles of international human rights law. 

Second, as Enver Solomon the CEO of the refugee council has stated, “the UK government’s desire to treat people as human cargo and expel them to Rwanda is not only cruel and unprincipled, but it is completely unworkable”. This statement is accurate, given that the plans originally outlined that Rwanda was uncapped and that Rwanda has the capability to settle “tens of thousands” of people, however, it has recently been reported that Rwanda can take up to 200 refugees. There is the additional issue of cost which fuels the concept that this is unworkable. Not only did the government propose a 120-million-pound aid package to Rwanda for the agreement, but the flight which was stopped but initially chartered for 14th June 2022 cost the sum of £500,000, a figure which excludes the government's legal costs and the sum to be paid to Rwanda for each refugee. As the UK is currently facing what the government declares a cost-of-living crisis, it is not tenable for the government to be spending such extravagant sums of money on their cruel plans. 

A third issue with the plans is that the United Nations High Commissioner for Refugees (UNHCR) has stated that detention of asylum seekers is undesirable, and should only be a last resort. Therefore, using offshore means seems to be an extreme option, as it is likely going to be the case that asylum seekers and refugees who are sent to such centres are going to be held there for an unnecessarily long period of time, and perhaps run the risk of indefinite detention. Detention action outlines what offshore detention centres are. They note that it involves one country (usually a wealthy country) paying off another country (usually a poorer country) to detain people seeking asylum. Offshore detention centres have been controversial due to issues such as inhumane treatment, abuse, and death of detainees. In fact, the current Home Secretary, Priti Patel, has faced a legal challenge from the Freedom from Torture pressure group over her office’s failure to safeguard LGBTQ+ refugees that will be sent over as part of this plan. This is because of the concerns over the treatment of LGBTQ+ people in Rwanda, as well as Rwanda’s track record of extra-judicial killings and deaths in custody, which the UK itself has raised concerns over. Furthermore, Human Rights Watch has claimed that the Rwandan government targets those it perceives as a threat, with arbitrary detention, ill-treatment, and torture being common. 

Offshoring our responsibility towards refugees and asylum seekers might be in keeping with the current government’s authoritarian approach to immigration, but it makes a mockery of our signature to the 1951 Refugee Convention, which entails a commitment to upholding the law and principles within the Convention. The UK must make better provisions within the UK for people who arrive here, such as adequate housing and community-based support, rather than deporting refugees and asylum seekers as though they are criminals. 

THE CURRENT LEGAL STATUS OF THESE PLANS AND ISSUES FACING THE HUMAN RIGHTS ACT

The first set of flights were charted for 14th June 2022. Human rights organisations and lawyers launched a challenge which was heard in the High Court. However, the High Court refused to grant interim relief and permit an injunction to stop the flights. Justice Swift of the High Court stated that there was ‘material public interest’ in letting the Home Secretary, Priti Patel, implement immigration control decisions. 

The matter was then appealed to the Court of Appeal, who were advised by human rights groups to overturn the decision of the High Court. This appeal was rejected on the basis that the High Court had not erred in judgment. The Supreme Court Justice Robert Reed refused lawyers from human rights groups to appeal. 

The matter was then taken to the European Court of Human Rights (ECtHR), which has authority to hear cases being brought against a state for human rights violations under the European Convention of Human Rights (ECHR). It is important to note here, that the ECtHR is not an EU institution, and the UK is a state party to the ECHR and thus must respect the rights and guarantees set out within it. The ECtHR granted an interim injunction at the very last minute, which prevented the flights from taking off on June 14th, 2022, and now there is going to be a judicial review into the Rwanda removal policy. 

An additional layer of concern here is that former Prime Minister, Boris Johnson, has “hinted” at leaving the European Convention on Human Rights and stated that it will be necessary to change some laws to implement the Rwanda policy. A new Bill of Rights is on the table to replace the Human Rights Act, which former Supreme Court Justice Brenda Hale has explained is unnecessary, stating that “the Human Rights Act is a perfectly good piece of legislation”. Replacing the Human Rights Act to force through an inhumane refugee policy and limit the influence of the ECHR is worrying, as individuals who are facing grave violations of their human rights will not have recourse to the ECtHR, and thus this could make the government untouchable and less accountable when it comes to human rights.

The government’s plans undermine international law and international human rights law. Not only that, but the plans are untenable due to cost and capacity concerns, and they offshore our responsibility towards refugees and asylum seekers who arrive in the UK. The government has made it clear that they do not appreciate the ECHR standing in the way of their plans, which is worrying not only for the future of the Human Rights Act, but for all those who benefit from it, including refugees and asylum seekers who the government are attempting to target. 

Amber is a PhD candidate in International Law at the University of Lincoln. She is also a Lecturer in Law and Politics at Lincoln College (Further Education). Amber holds an LLM in International Law from the University of Sussex and an LLB in Law from the University of Lincoln.