The Safety of Rwanda (Asylum and Immigration) Act 2024

The Prime Minister recently announced a General Election for 4 July and stated that no removals will take place before the election. That may be welcome news for our clients, languishing in immigration detention, but it is difficult to second guess what will happen next and the process of considering their claims under this Act does not seem to have stalled. There is still a very real possibility of a flight finally taking off.

In any modern liberal democracy, certain basic principles ought to be obvious to the governing executive: adherence to the rule of law, separation of powers and access to the courts to hold those in power to account.

The Safety of Rwanda (Asylum and Immigration) Act received royal assent on 25 April 2024. It was the government’s fervent response to the Supreme Court’s judgment in AAA (Syria) and others v SSHD [2023] UKSC 42, handed down in November 2023, that declared the Rwanda policy as unlawful.

The Supreme Court unanimously held that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment if they were removed to Rwanda.

The UK parliament is sovereign. It may pass legislation that reflects ‘the will of the people’. The government of the day is entitled to consider a court’s ruling, fix what the court said was wrong and then pass laws that could render the judgment redundant.

The concerns

The problem with the Rwanda Act, in my view, is that it does not remedy any of the concerns set out by the Supreme Court. Yes, there is a brand new Treaty with Rwanda that accompanies the Act, which the government will point to. Critically, the UN Refugee Agency’s (UNHCR) position since the Treaty announcement has not changed. The Supreme Court described the UNHCR’s evidence as ‘evidence [that] should have been given particular weight given its remit and unrivalled practical experience of working in the Rwandan asylum system’. The UNHCR’s updated analysis finds that the new UK–Rwanda treaty and the accompanying Rwanda Act remain incompatible with international refugee law.

Circling back to those first principles above, one would hope that a sovereign parliament would build those principles into any law it passes. If the executive were confident that it had ameliorated the Supreme Court’s concerns, it would not have needed to go to such lengths to seriously oust the powers of the judiciary and its ability to scrutinise the ‘new’ evidential/factual position.

The most egregious section states that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country’. The definition of a decision-maker includes the courts.

The courts ‘must not consider’ that Rwanda will: (a) contravene its refoulement obligations, (b) fail to provide fair and proper consideration of an asylum claim, or (c) not act in accordance with the UK–Rwanda Partnership entered into by the UK and Rwanda subsequent to the judgment (“the Rwanda Treaty”). It doesn’t matter if those things aren’t factually true.