Havva Yesil (Dublin City University)

On 15^th November, the Supreme Court of the UK ruled that Rwanda is not a safe third country where asylum applicants can be sent by the government. In its ruling of 15^th November, the court concluded that domestic legislation, namely the Human Rights Act of 1998, as well as various international legal instruments such as the European Convention on Human Rights, the United Nations Refugee Convention, the United Nations Convention against Torture, and the United Nations International Covenant on Civil and Political Rights, collectively prohibit the United Kingdom from repatriating asylum seekers to Rwanda due to the potential danger of refoulement, which entails returning individuals to a country where their lives would be endangered. A significant number of individuals have sought asylum in the United Kingdom, and this judicial decision marks an impressive victory for the protection of their rights.

The United Kingdom offered to allocate £120 million in aid to Rwanda, with the intention of fostering economic development. This initiative is a manifestation of the United Kingdom’s commitment to engaging with Rwanda. As part of the mutual agreement, Rwanda would accept those seeking asylum, evaluate the validity of their claims, and confer refugee status upon those deemed to have genuine grounds for protection. On December 19, 2022, the High Court declared the programme lawful. Then, the Court of Appeal rendered a decision on June 29, 2023, invalidating the proposal on the grounds of its illegality. The court of appeal determined that the Rwandan asylum system lacks the capacity to assess asylum claims effectively and impartially, thereby exposing refugees to potential harm. Subsequently, the case was brought to the Supreme Court, which delivered its decision on 15 November 2023, declaring the policy to be in violation of the law. Upon careful examination of the case, the court reached the determination that there were significant grounds to apprehend that asylum seekers removed to Rwanda would be exposed to inhumane treatment upon their repatriation to their country of origin. Lord Reed, president of the court, was careful to point out that the strategy would violate numerous international treaties and domestic laws, even though this meant that removals would violate article 3 of the European Convention on Human Rights and the Human Rights Act of 1998.

The agreement between the United Kingdom and Rwanda is not a unique example. The EU has consistently generated multiple agreements with the objective of transferring the burden of migration and border control to countries of origin and/or transit, such as Libya and Turkey. However, the Supreme Court placed a heavy emphasis on the significance of refugee rights, particularly the concept of non-refoulement, notwithstanding the fact that the ECtHR has been granting member states flexibility and legitimising the outsourcing of migration governance such as in the Khalifia case. In the Khalifia case, the ECtHR eroded the principles of international human rights law by claiming that Article 4 of Protocol No. 4, which concerns collective expulsions of immigrants, does not ensure the right to an individual interview.  Moreover, the Rwanda agreement exhibits unique and aggressive attributes, as it involves strengthening border controls to discourage the influx of migrants and implementing offshore processing of asylum seekers upon their arrival in the United Kingdom. In short, this agreement signifies the comprehensive transfer of the United Kingdom’s asylum obligation to another nation since asylum seekers qualifying as refugees would exclusively be eligible to remain as refugees in Rwanda, rather than in the United Kingdom where they initially sought protection.

Such partnerships have the capacity to fail, as seen by historical instances such as the breakdown of the EU-Turkey statement in 2020 due to Erdogan’s decision to open the border for Syrians wishing to enter Europe. Notwithstanding the unanimous decision of the justices, the British government continues to uphold its position on the policy. The UK government has a clear commitment to advancing its border control agenda by actively pursuing these agreements, whether they be implemented in Rwanda or other potential locations, as Sunak addressed that the government was engaged in negotiations for a new treaty with Rwanda, aimed at safeguarding against refoulement. Furthermore, he expressed the government’s willingness to amend existing legislation in order to facilitate the implementation of this policy. However, the inclusion of the spirit of international obligation in the ruling provides optimism that future agreements of a similar nature may not be replicated if the Supreme Court can maintain its consistency, unlike the ECtHR. Following the escalation of the refugee crisis in 2015, the ECtHR has been making rulings that lack consistency, as exemplified by the contrasting decisions in the Hirsi Jamaa and ND NT v. Spain cases.  The president of the Supreme Court expressed scepticism on the reliability of the guarantees provided by Rwanda concerning the treatment of asylum-seekers being transferred from Britain. He raised concerns over the country’s historical performance in the realm of human rights, specifically highlighting examples of torture, unlawful disappearances, and refoulement, which involves repatriating migrants to their countries of origin despite any risks they may encounter. This should be regarded as an instructive model by the UK and EU for future policy developments. Instead of devising pushback policies, international obligations should be prioritized as it was signified by the Supreme Court.

Additionally, it is important to note that some authoritarian regimes may employ the financial resources acquired through agreements with migrants to further consolidate their power and exert greater control over their own population. In order to obtain more support and secure further compromises, they may use the refugees as a method to violate the terms of the agreement, similar to what occurred with the EU-Turkey Statement.  Finally, in the event that the Rwanda plan was obstructed, Braverman urged the UK to withdraw from the ECHR. Despite her sacking, the future of the UK under the European Convention on Human Rights (ECHR) remains uncertain, as the government persists in implementing policies that contradict human rights legislation.  The withdrawal of Britain from the Convention, which it played a founding role in establishing in 1950 to protect human rights, would have an immensely detrimental effect on its global standing.