On 15 November, in an eagerly awaited decision, the Supreme Court of the United Kingdom (UK) dismissed an appeal of the British Secretary of State in R (on the application of AAA (Syria) and others) v. Secretary of State for the Home Department and unanimously upheld the decision of the Court of Appeal that had correctly reversed the decision of the Divisional Court. The Supreme Court stated that there existed substantial grounds to believe that asylum seekers sent to Rwanda may be at risk of refoulement, being transferred to a country where they could be persecuted, mistreated, tortured or even killed. This decision thus confirmed the illegality of the Rishi Sunak government’s controversial plan to deport asylum seekers to Rwanda, irrespective of their origin, if they arrived on British soil illegally.
UK-Rwanda: concerns over the asylum partnership agreement
In April 2022, the UK and Rwanda agreed a Migration and Economic Development Partnership (MEDP), under which a Memorandum of Understanding (MoU) was concluded in the form of an “Asylum Partnership Agreement”. As per this scheme, asylum seekers in the UK would have their claims considered by Rwanda after being relocated, in line with international standards of the 1951 Refugee Convention and Rwandan immigration laws, where claimants have to be protected against inhuman and degrading treatment and refoulement. To this end, a monitoring committee was established to report on the implementation, and provisions regarding the protection and humanitarian needs of those whose applications had been rejected – including an appeal to the relevant ministry and a second appeal to the High Court – were also approved. In return, the UK agreed to settle some of Rwanda’s most vulnerable refugees and paid a lump sum of more than 120 million pounds to Rwanda.
Despite these provisions, the United Nations High Commissioner for Refugees (UNHCR) has expressed numerous concerns about the implementation of this system of “externalization” of asylum obligations, due to the serious risks it poses to refugees and the ability of the Rwandan authorities to assess asylum applications fairly.
The Directorate General of Immigration and Emigration (DGIE), conducting early interviews of asylum seekers, has a high rate of rejections (despite not being empowered to decide), thus depriving applicants of a right of appeal, available only against the refugee status determination (RSD).
Even the RSD Committee, which conducts further interviews, is comprised of non-experts who reject claims without reason, thus reducing the number of appeals to the Ministry. At the final appeal before the High Court, the situation even worsens, as the system remains untested for it has not witnessed even a single case since the existence of this right of appeal, which, coupled with the lack of judicial independence, leads to 100% rejection rate, especially for people from conflict zones (namely Afghanistan, Syria and Yemen).
Another cause of concern is the practice of refoulement in Rwanda. The UNHCR attributes the refusal of applications from non-African asylum seekers (Middle-Easterners and Afghans) to the Rwandan authorities, who consider that such claimants should apply in their own region.
Notably, the human rights record of Rwanda has been criticised (for extrajudicial killings, custodial deaths, enforced disappearances and torture), including by the UK itself at the 2021 UN Human Rights Periodic Review. Rwanda has also been accused of being involved in political assassinations, which has also led the British police to warn the Rwandan nationals in the UK against such practices (Government of Rwanda v. Nteziryayo and Others (2017)).
Supreme Court’s Appeal: Brief Analysis under International and Domestic Commitments
Both the UK and Rwanda are parties to the 1951 Refugee Convention and its 1967 Protocol. In addition, the principle of non-refoulement enshrined in Article 33 of the 1951 Geneva Convention has risen to the status of customary international law, as recognised by the UK in the 2001 Declaration of States Parties to the 1951 Convention and its 1967 Protocol relating to the Status of Refugees.
In domestic law, the UK has ratified the concept under Section 2 of the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002, and the paragraph 17 (c)(ii) of Schedule 3 to the Asylum and Immigration Act 2004. Pursuant to paragraph 12 of Schedule 3 of the 2004 Act, the certification under paragraph 17(c)(ii) of the Act forms an integral part of the UK’s relocation decision, although the certification is subject to the absence of any real risk of the applicant being sent to a country other than that those provided for in the Refugee Convention (R v. Secretary of State for the Home Department, Ex parte Canbolat (1997).
The Supreme Court observed that the Divisional Court failed to make its own assessment of the existence a real risk of refoulement in Rwanda, relying on the executive’s reasoning, which stood exclusively on the assurances under the MoU, completely disregarding the UNHCR evidence on the “history of refoulement” in Rwanda.
This approach also stood in contradiction to Article 3 of the European Convention on Human Rights on the “Prohibition of torture”, and more specifically to the test established in Soering v. United Kingdom (1989), which the Court of Appeal correctly applied, coming to the conclusion that real risks of refoulement existed in Rwanda. This “Soering test” obligates the contracting parties to refrain from acts of torture, inhuman and degrading treatment, including the obligation not to displace the claimants to a country where there exist substantial risks of ill-treatment. The Divisional Court failed the “Soering test”, requiring the Supreme Court to self-ascertain whether there existed a real risk of refoulement to another country in Rwanda.
The said risk was to be judged in light of all the factors from the past, present and future promised scenarios. Even the Committee Against Torture and the Human Rights Committee – respectively established under the 1984 UN Convention Against Torture and under the 1966 International Covenant on Civil and Political Rights, i.e. two instruments to which the UK is a party – have adopted the same approach. Additionally, the European Court of Human Rights, in Othman (Abu Qatada) v. United Kingdom (2013), as well as the UK Supreme Court in Zabolotnyi v. Mateszalka District Court, Hungary (2021), held that extradition must be based on a free evaluation of the assurances given by a State that individuals would be treated in compliance with Article 3 of the European Convention on Human Rights, after examining all the evidence, including past breaches of similar assurances and present circumstances.
Corresponding Case Study: The Italy and Albania Agreement
A similar arrangement was signed between Italy and Albania on 6 November 2023. Unlike the agreement between the UK and Rwanda, this one creates an “Italian jurisdictional enclave in Albanian territory”, where asylum applications are to be assessed in accordance with the legislation of Italy and of the European Union (EU), with the Italian judge responsible for adjudicating the disputes.
This agreement obligates Italy to create two migrant reception centres in Albania, accommodating up to 3,000 migrants from spring 2024, i.e. around 39,000 per year. Funded by Italy, the application of agreement is restricted to claimants rescued by Italian ships, excluding first arrivals in Italy, minors, pregnant women and other vulnerable people.
Not only was the agreement controversial amongst its parties due to the lack of political consensus, but even the EU warned about compliance with international refugee law (especially the core principle of non-refoulement), and of general fundamental rights (such as the right not to be arbitrarily detained and the right to a judge).
While this agreement is certainly a way for Albania to gain Italy’s support for its candidacy for EU membership, its implementation raises concerns, notably the risk of refoulement in Albania, the possibility of differentiated treatments in the two countries, not counting the inhumanity of potentially forcing distressed asylum seekers to sail back and forth between Italy and Albania.
Coming back to the UK-Rwanda agreement, although irregular arrivals across the Channel pose considerable challenges, as the UNHCR declared, they certainly call for “practical, workable alternatives to the MEDP arrangement, including through cooperation with European neighbours in the spirit of responsibility-sharing which lies at the core of the Refugee Convention”, as well as “[f]air and fast asylum procedures that respect international standards (…) to secure the safe and dignified return of those found not to be in need of protection.”
In this respect, the decision of the Supreme Court of 15 November is certainly a commendable one, because apart from upholding the 1951 Refugee Convention, it also prevented MEDP from setting a precedent for many other violations in the field of international law. However, whereas the Rwanda plan was deemed unlawful and was not implemented – as the first flight was prevented from taking off by the European Court of Human Rights in June 2022 – the UK government could replicate it in other countries considered “safe” for asylum seekers. In this respect, it is certainly important that the UK creates a fair asylum system that treats people with dignity in conformity with international standards.