The UK government is facing more courtroom showdowns over its plan to send asylum seekers to Rwanda, lawyers have warned, despite new legislation designed to overcome legal blocks to the policy.
Prime Minister Rishi Sunak said a package of measures unveiled this week — including a bill that seeks to sidestep human rights legislation — paved the way for removal flights. He said the new law, together with a revamped treaty between London and Kigali, addressed “all the concerns” raised by the UK Supreme Court last month, when it ruled the scheme was unlawful.
Immigration lawyers acknowledged that, if enacted, the measures would be likely to narrow legal options for asylum seekers threatened with removal to the African country.
But they said legal holes remained — not least since Sunak rejected demands from the right of the ruling Conservative party to opt out of European human rights laws altogether.
“It will perhaps make it harder for people to challenge their removal to Rwanda in terms of exercising their legal rights, but I think they will still be able to do it,” said Muhunthan Paramesvaran, deputy head of immigration at Wilson Solicitors.
What did ministers announce on Wednesday?
The government said the Safety of Rwanda (Asylum and Immigration) Bill was “the toughest immigration legislation ever introduced”.
It would put on the UK statute book an assertion that Rwanda is “safe” for asylum seekers, stating that “every decision maker” in the UK would have to “conclusively” deem Rwanda to be so.
The bill tries to prevent further legal challenges blocking the flights through “notwithstanding” clauses, in effect instructing judges to ignore the UK’s Human Rights Act when it comes to Rwanda-related asylum claims.
What is the significance of the new treaty?
The legislative declaration that Rwanda is “safe” runs contrary to the ruling last month from the Supreme Court, which found that asylum seekers sent to the east African nation would be at real risk of subsequently being returned to the countries from which they had originally fled.
In an attempt to address such concerns, the government also signed a new treaty this week with Kigali designed to strengthen protections for those sent there.
Ministers said that, unlike the previous agreement between London and Kigali, the latest treaty is binding in international law.
The treaty includes provisions for a new monitoring committee to ensure compliance and also an appeals body, comprising judges from a range of countries to hear individual cases.
It also states that those sent to Rwanda “will not be removed from Rwanda except to the United Kingdom”.
Will the government’s strategy work?
Lawyers said that the treaty alone might not have been enough to satisfy the courts, since they would deem the safeguards in the agreement to be inadequate without evidence that they worked in practice.
The Supreme Court ruled there was “a serious question” about whether undertakings given by Rwanda could “be relied on” — noting evidence Kigali had failed to meet its obligations under a similar agreement reached with Israel.
Immigration and rights lawyers said that, when combined with the legislation disapplying human rights law, the measures would be likely to make it more difficult for the policy to be challenged via the domestic courts.
While they are poring over the details of the bill, potential legal routes to thwart it have already been identified.
Sir Jonathan Jones KC, formerly a leading government lawyer now with Linklaters, said that, for as long as the UK was still part of the European Convention on Human Rights, claimants could take their cases to the associated court in Strasbourg.
The new bill contains provisions for ministers to disregard any Strasbourg rulings that seek to prevent removals to Rwanda. However, Jones said this raised the prospect of a “clash between the UK and the ECHR”.
Such a move could trigger a constitutional crisis, lawyers warned.
Alasdair Mackenzie, barrister at Doughty Street Chambers who specialises in immigration and asylum law, said: “This puts the UK on collision course as far as I can see with the European Court [of Human Rights], and it potentially puts the government on a collision course with the domestic courts.”
The policy could still be challenged without resorting to Strasbourg, Paramesvaran said. Individual claimants could seek judicial reviews of the “legality of being denied access to the courts”.
The legislation “was basically saying that no one can go to court to challenge this — but the very legality of that is subject to challenge”.
Such a procedural move would “not even be about the safety of Rwanda, but whether or not a person is even entitled to argue about the safety of Rwanda”.
Mackenzie said: “There are limits to what parliament can do to prevent the courts protecting human rights . . . That certainly seems like a battle that needs to be had: can parliament actually do this?”
How else could the policy be thwarted?
Politically, it is unclear whether the bill as drafted will be enacted, given it is expected to face opposition in the House of Lords.
Veteran British diplomat Lord John Kerr, who is on the international agreements committee in the Lords, predicted the bill would struggle to get through the upper chamber in its current form.
The crossbencher said the Lords would object in particular to the Human Rights Act being overridden. He was also concerned that disregarding rulings from Strasbourg would be unsustainable, since such action could ultimately result in UK expulsion from the convention.
“If we pass this bill, we will have banned the executive and [UK] courts from paying any attention to any interim measures that the [Strasbourg] court has imposed,” said Kerr.
He said the notion of banning the UK executive and governments from complying with Strasbourg was “unprecedented”. “I don’t know if that is compatible with us remaining inside the [European human rights] convention.”
A former top civil servant said the degree to which the bill constrained the courts was “alarming” and highly unusual in that it sought to override a Supreme Court finding that was based on facts set out very clearly in its judgment.
“While it is possible for parliament and government to change the law, declaring the facts to be the opposite to a finding [that Rwanda was not safe] is very strange and rather alarming,” the former senior official said.
