THE RWANDA BILL: The New UK & Rwanda Deportation Bill

British Prime Minister RishiSunak is trying to persuade rebel MPs from his own party to back his latest plan to send asylum seekers to Rwanda ahead of a crucial House of Commons vote on the policy.

The embattled Conservative Party leader wants to hand over refugees and migrants to the African nation for potential resettlement in a bid to discourage people from crossing the EnglishChannel to Britain in small boats.

But following the UK SupremeCourt’s decision last month to strike down the original legislation on the grounds that Rwanda is not a safe country for asylum seekers, Sunak introduced the so-called Safety of Rwanda Bill, which would make it harder for courts to challenge British deportations to the landlocked republic.

The 43-year-old, who faces a potential rebellion from the centre of his party over concerns his policy contradicts international law, has denied that Tuesday’s Commons session is essentially a vote of confidence in his premiership.

Meanwhile, as well as concerns that the policy is illegal by international law, Conservative politicians further on the right declared on Sunday that the proposed bill was not “sufficiently watertight”.

The issue of illegal migration into the United Kingdom by small boats is a matter of significant public concern.  Illegal arrivals by unsafe routes put individuals in danger and place substantial additional burdens on to public services. These migrants are coming to the United Kingdom from safe countries. The government estimates that if illegal immigration goes unaddressed, the costs of asylum accommodation alone could increase to £32 million per day by 2026 – equivalent to £11 billion per year. The government therefore needs to use all the powers at its disposal to prevent and deter unlawful migration.

In the year ending June 2023, there were 52,530irregular migrants detected entering the UK, up 17% from the year ending June2022. 85% of these arrived via small boats, according to official reports of the UK Government.

The Treaty

The agreement between the government of the United Kingdom of Great Britain and Northern Ireland and thegovernment of the Republic of Rwanda for the provision of an asylum partnership(‘the Treaty’),signed in Kigali on 5 December 2023, will be scrutinised in Parliament andratified in both countries in accordance with their laws.

The Treaty addresses and deals with the factual concerns identified by the Supreme Court regarding the policy of relocating illegal migrants to Rwanda.  It provides for clear, detailed, and binding obligations on both parties in international law.  It introduces a complete bar on any onward removal of relocated individuals fromRwanda, other than in exceptional circumstances back to the UK (upon request).  It introduces a new system for assessing and deciding asylum claims in Rwanda and includes new monitoring mechanisms to ensure practical compliance with the terms of the Treaty. It introduces binding dispute settlement and provides for the opportunity to suspend and terminate the Treaty if required.  

The bill is predicated on bothRwanda and the UK’s compliance with international law in the form of the Treaty, which itself reflects the international legal obligations of the UK and Rwanda. The government of theRepublic of Rwanda has also been clear that it would withdraw from involvement in the scheme if the UK were to breach its international obligations, therefore rendering the bill unable to work in achieving the policy intention of deterrence – as there would be no safe country for the purposes of removal.

The Bill

Constitutional and domestic law

This bill reflects that Parliament is sovereign and can change domestic law as it sees fit including, if that is Parliament’s judgment, requiring a state of affairs or facts to be recognised. This is the central feature of the bill and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic courts. The key measures in the bill areas follows:

• a clear statement of Parliament’s view that Rwanda is safe, “notwithstanding” all specified domestic legislation and the common law, and any alternative interpretation of international law including customary international law
• a clear statement that the validity of domestic legislation subsists “notwithstanding”international law, reflecting the dualist principle that domestic and international law exist on different planes and international law is not given effect domestically unless Parliament expressly chooses to do so
• very limited scope for individual challenges based on compelling evidence relating specifically to the person’s particular individual circumstances, and limiting any suspensive relief to where a person can demonstrate a real risk of serious and irreversible harm if they are removed during that challenge
• specific clauses ousting the HumanRights Act, including s. 2 and s. 3 HRA, and for the first time in domestic legislation precluding the domestic courts from considering claims under s. 6HRA
• a clause making clear that it is for a Minister of the Crown (and they alone) to decide whether the UnitedKingdom will comply with an interim measure. Clause 5(3) makes clear that a court must not have regard to any rule 39 interim measures.

Effect of the bill

The cumulative effect of these provisions, and those laid out in the Illegal Migration Act, is to preclude almost all grounds for individual challenge that could be used to suspend or frustrate removal. This means that illegal migrants will not be able to:

• make an asylum claim in the UK, which 90% of last year’s small boat arrivals made
• take advantage of modern slavery protections, as 71% of those detained for removal in 2021 did
• argue that they face a risk of refoulement in Rwanda, as every single one of the claimants to the High Court from the original Rwanda flight did
• make any other ill-founded human rights claim to frustrate removal, given the bill disapplies the relevant sections of the Human Rights Act 1998

In short, the domestic courts cannot accede to or consider claims which assert Rwanda is generally unsafe or that an individual will be refouled from Rwanda.