The Safety of Rwanda (Asylum and Immigration) Bill and the Supreme Court’s decision

On 12 December 2023, the Safety of Rwanda (Asylum and Immigration) Bill 2023 passed at its second reading in the House of Commons. Following the Nationality and Borders Act 2022 and Illegal Migration Act 2023, this is another proposed legislative change in quick succession intended to achieve the government’s aim of reducing the number of asylum seekers who arrive in the UK on small boats.

The context of the Safety of Rwanda Bill is the Supreme Court decision on 15 November 2023 declaring the Secretary of State’s policy of removing certain asylum seekers to Rwanda unlawful. That decision was focused primarily on the question of non-refoulement, which is the principle of not returning asylum seekers to the country from which they face persecution. The Supreme Court found that there was a substantial risk that refugees removed to Rwanda from the UK would not have their asylum claims dealt with properly and would instead be sent back to their home countries. As this would amount to refoulement, the policy was declared unlawful.

The response

The government’s response to that decision has been two-fold. Firstly, the government agreed a new Treaty with Rwanda, which it states addresses and deals with the Supreme Court’s concerns regarding non-refoulement. The government has also issued a policy statement, asserting that the situation in Rwanda has changed materially since the summer of 2022, when the policy was first challenged.

Secondly, it introduced this Bill, which places a statutory duty on all decisionmakers dealing with removal decisions to treat Rwanda as a safe country. It also removes the jurisdiction of the courts and tribunals to consider a review of, or appeal against, a decision regarding removal to Rwanda to the extent that it is brought on the basis that Rwanda is, in general terms, unsafe. Specifically, they are not to consider any claim on the basis that: Rwanda may remove that claimant to another state in breach of its international obligations; the claimant will not receive a fair and proper consideration of their asylum claim in Rwanda; or that Rwanda will not act in accordance with the Treaty agreed with the UK government.

In some ways, the Bill appears to implement pre-existing concepts in the specific context of Rwanda. For example, the Nationality, Immigration and Asylum Act 2002 defined ‘safe States’ and listed countries which were to be treated as either definitively safe for the purposes of considering asylum claims, or where the claims are likely to be unfounded. Immigration and asylum legislation has also restricted the jurisdiction of the courts and tribunals in the past.