Externalisation of asylum in Europe: Unpacking the UK-Rwanda Asylum Partnership Agreement

By Nikolas Feith Tan, Senior Researcher at the Danish Institute for Human Rights.

Introduction

The UK-Rwanda Asylum Partnership Agreement (APA) is the latest in a line of cooperative asylum arrangements that seek to shift asylum responsibility from destination states in the Global North to countries in the developing world. Such arrangements are generally for the purpose of deterring and deflecting protection seekers and, as such, the APA should be understood as a form of externalisation, an umbrella concept for the efforts of certain states to externalise certain basic functions (in this case asylum processing and protection) in the areas of border control and asylum.

It is important to locate the APA in its broader practice of related (but not identical) arrangements, which include US third country processing of intercepted asylum seekers at Guantanamo Bay, Australian-led attempts at third country processing and protection in Nauru and Papua New Guinea (PNG), the EU-Turkey Statement, Israel’s ‘voluntary departure’ programmes involving the transfer of Eritrean and Sudanese asylum seekers to Rwanda and Uganda, and the short-lived US-Guatemala Asylum Cooperation Arrangement. Almost 20 years on, the APA also resonates with the UK’s ‘New Vision for Refugees’, which included the processing of asylum seekers in transit states after arrival in the EU. And most recently, the UK would appear to have beaten Denmark to the line in announcing a transfer arrangement with Rwanda, a policy vision reflected in Danish legislation since June 2021.

Other authors have provided views on the APA’s probable incompatibility with a range of international law instruments and its deleterious impact on territorial asylum. Indeed, significant questions remain as to the operational, policy and legal modalities and implications of the arrangement (including whether it will be implemented at all). While the APA in principle applies to asylum seekers who arrive irregularly in the UK from 1 January 2022, when transfers will begin remains unclear with a number of legal challenges underway. 

The UK-Rwanda agreement and legal issues arising

The APA is a memorandum of understanding (MoU) for the forcible transfer of asylum seekers who arrive irregularly to the United Kingdom to Rwanda, who will then assume responsibility for both the asylum procedure and protection of those found to be refugees (para 2.1). Furthermore, Rwanda will assume responsibility for the return or channelling into migration streams of persons found not to be in need of international protection. The MoU is set to run for five years, with the possibility of renewal (para 23) and includes resettlement of an unspecified number of refugees from Rwanda to the UK (para 16).

1. Form and nature of the APA

The non-binding nature of the MoU is explicitly stated, with an express provision that its terms ‘do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals’ (para 2.2). The non-binding form of the MoU was presumably chosen to secure a more rapid agreement and to avoid the creation of binding obligations between the UK and Rwanda and accompanying parliamentary oversight. 

Nevertheless, the apparently non-legal form of the APA may open it to legal challenge. While the EU-Turkey Statement, itself in the form of a media release, has thus far escaped judicial scrutiny at EU level, a 2011 MoU for the transfer of asylum seekers between Australia and Malaysia (not a party to the Refugee Convention) was invalidated by the Australian High Court as Malaysia lacked binding commitments to uphold asylum and refugee law standards. The non-binding nature of the APA may beg the question of whether the agreement itself provides sufficient guarantees to uphold the substantive and procedural standards it contains.

2. Personal scope

The UK government has stated that the APA applies to asylum seekers who arrive ‘illegally, or by dangerous or unnecessary methods from safe countries’ in the UK after 1 January 2022 and are deemed inadmissible, either under pre-existing Immigration Rules (Rules 345A-345C) in combination with schedule 3 of the Nationality, Immigration and Asylum Act (paras 3-5), or under Clause 30 of the newly passed Nationality and Borders Act. The new Act has as one of its objectives ‘enabling asylum claims to be processed outside the UK and in another country.’ The above legal bases revolve around the application of the safe third country concept, whereby an asylum claim can be declared inadmissible while removal to a safe third country would remain within the UK’s international obligations, notably Article 3 ECHR. 

The APA’s potential scope of application is thus very broad, with high levels of discretion as to who the UK will select for transfer built into the agreement. As other authors have noted, the application of the APA only to ‘irregularly’ arriving asylum seekers raises questions of non-penalisation under the Refugee Convention, though presumably the UK government will seek to justify the approach by arguing that asylum seekers crossing the English Channel are not ‘coming directly from a territory where their life or freedom was threatened’ as envisaged by article 31(1) of the Refugee Convention, contrary to both international and UK jurisprudence. Moreover, the significant discretion built into the agreement raises more general questions of non-discrimination in terms of who is selected for transfer and on which grounds.

3. Operation of the APA

The APA may be understood as operating in four phases. The first is an ‘initial screening’ after the arrival of asylum seekers in the UK, carried out by UK authorities (para 5). This ‘pre-transfer’ procedure is not described in any detail in the MoU but is presumably envisaged to comply with the UK’s international obligations. Following this procedure, the UK will request the transfer of an individual which Rwanda must approve before the transfer can take place (para 3.2).   

In terms of legal challenges, some groups of asylum seekers must be excepted from transfer, both on the basis of the UK’s non-refoulement obligations and further human rights law obligations. For example, Article 3 ECHR precludes the transfer of Rwandan nationals (excluded also under UK law), seriously ill persons and, potentially, LGBT asylum seekers – in light of UNHCR reporting that LGBT asylum seekers are routinely barred from accessing the Rwandan asylum procedure. Moreover, the UK’s Article 8 obligations may require granting access to family reunification where an applicant has close family lawfully residing in the UK. Finally, the UK’s obligations under the Convention on the Rights of the Child requires consideration of the best interests of the child, both with respect to children in family groups and unaccompanied minors. The UK Home Office has just published guidance documents which will form the basis for assessment of the risks to asylum seekers during this pre-transfer procedure.

The second phase is the transfer of selected asylum seekers to Rwanda by UK authorities (para 6). The UK thus assumes responsibility for the entire forced transfer operation, including the safety and security of asylum seekers, chartering of flights and ‘provision of escorts as necessary’. 

The third phase is the asylum procedure, which under the terms of the APA is seemingly the sole responsibility of Rwandan authorities. While UK government officials have stated that under this model ‘the UK’s legal obligations end once an individual is relocated to Rwanda’, the very nature of human rights law and the principle of non-refoulement in particular, undisputedly place legal responsibility upon the UK after transfer, even if the UK’s effective control over transferred individuals has ended.

The APA provides that asylum seekers will receive a two-instance asylum procedure in line with national and international human rights and refugee law standards (para 9.1). The Agreement also provides that asylum seekers will receive access to an interpreter and legal assistance, though there is no detail as to the quality or cost of such procedural guarantees, nor as to timeframes for decision-making. 

Whether the Rwandan asylum system can deliver such standards of treatment remains to be seen. While according to UNHCR Rwanda’s 2014 Law Relating to Refugees ‘complies with international standards’, the country hosts 127,000 refugees, with the vast majority recognised on prima facie basis. UNHCR further reported in June 2020 that the Rwandan asylum system only had one eligibility officer nation-wide. 

Under the APA, reception conditions are narrowly framed in general terms. According to para 8.1, Rwanda is responsible for providing open reception arrangements in ‘accommodation that is adequate to ensure the health, security and wellbeing’ of the individual throughout the asylum procedure. Rwanda bears responsibility for additional ‘support’, though no further details are provided as to what this entails. Freedom of movement is further provided ‘in accordance with Rwandan laws and regulations’ (para 8.2). These vague formulations do not include details as to the rights afforded to asylum seekers during this phase, such as access to education, employment or medical assistance. Nor does the APA include specific guarantees for vulnerable persons subject to transfer (such as children or persons with medical needs), with the sole exception being victims of trafficking (para 14).

The APA’s fourth phase envisions that asylum seekers recognised as refugees will remain in Rwanda. Here the APA would seem to be contradictory on its terms. Para 10.1 provides on the one hand that Rwanda will provide recognised refugees with the ‘same level of support and accommodation as a Relocated Individual seeking asylum’. On the other hand, the same paragraph goes on to state that recognised refugees will receive treatment ‘in accordance with the Refugee Convention and international and Rwandan standards’. Given Articles 2-34 of the 1951 Convention provide refugees with a graduated set of rights as their attachment to the host state grows which goes far beyond the basic rights afforded to asylum seekers, this clause leaves significant uncertainty as to the rights foreseen for refugees expected to locally integrate in Rwanda. 

The UK Home Office’s newly released guidance takes a particularly narrow view on this point, with its assessment of the rights of asylum seekers and refugees in Rwanda seemingly limited to compliance with Article 3 ECHR. For example, limits on restrictions on freedom of movement for asylum seekers and recognised refugees in Rwanda are assessed only in terms of Article 3 ECHR and not with reference to Article 26 of the Refugee Convention.

For those asylum seekers not found to be in need of international protection, Rwanda further retains responsibility for either their return or regularisation in Rwanda on another basis (para 10.2). According to the APA, Rwanda will only return people to a country where they have a right to reside and, if return is not possible, ‘will regularise that person’s immigration status in Rwanda’ (para 10.4). The APA carves out one narrow mechanism for asylum seekers to return to the UK, but only where the UK is legally obliged to facilitate that person’s return (para 11). Indeed, this clause does not guarantee return to the UK, but requires Rwanda to take ‘all reasonable steps…to make a relocated Individual available for return to the United Kingdom’.

4. Monitoring

Finally, the APA provides for an independent Monitoring Committee with a mandate to monitor ‘entire relocation process’ encompassing the four phases outlined above (para 15). The Monitoring Committee will have wide access to both individuals and facilities under the APA, though crucially there is no provision setting out the powers of the Monitoring Committee (e.g. to request the return of individuals to the UK or to suspend transfers to Rwanda where breaches of international law are uncovered), nor a mechanism for the Monitoring Committee to report its findings.

Beyond the normal application of the Safe Third Country concept

At first glance, the APA may be read as another application of the well-known safe third country (STC) concept. Indeed, the APA relies on similar underlying logics of more classical STC arrangements, notably the legal mechanism of inadmissibility and the assessment that Rwanda affords access to a fair and effective asylum procedure and protection in line with the 1951 Convention. However, while there are clear overlaps  between the APA and other STC clauses, there are several important distinctions that extend the UK-Rwanda agreement well beyond standard STC arrangements.

First, as noted with respect to the Danish proposal, the Asylum Procedures Directive requires a connection between the applicant and the third country concerned, on the basis of which it would “be reasonable for that person to go to that country”. Other prominent examples of the STC concept operate on the basis of a pre-existing connection between persons transferred and the third country in question. Due to Brexit, the APA need not include such a connection requirement, thus opening up the transfer of asylum seekers to Rwanda who have never set foot in the country. Relatedly, while other STC arrangements are limited to the return of asylum seekers who have transited through a particular state, the APA applies in theory to all persons arriving irregularly in the UK.

Second, more classical STC arrangements do not necessarily include a duty on the part of the receiving state to process asylum claims. The EU-Turkey Statement, for example, makes no provision for Turkey to carry out asylum procedures with respect to Syrians returned from the Greek islands. The APA, in contrast, includes explicit guarantees that Rwanda will assume responsibility for the asylum claims of individuals transferred from the UK.

Finally, the APA is qualitatively distinct from more mainstream examples of STC arrangements – such as the Dublin system or US-Canada Safe Third Country Agreement – as it involves the transfer of persons to a country outside the region with markedly lower protection standards in practice. As outlined above, the APA further provides for higher standards of treatment for persons transferred from the UK vis-a-vis other asylum seekers and refugees in Rwanda, which is not usually the case in other STC arrangements.

Locating the APA in broader externalisation tendencies

Clearly, the APA leaves substantial legal, operational and policy questions unanswered.

It remains to be seen whether and the extent to which the APA will be implemented at all. Prior to the announcement of the UK-Rwanda agreement, some authors suggested that Clause 30 of the Nationality and Borders Act may effectively be a ‘dead letter’. While the UK government initially said that transfers under the APA are ‘uncapped and Rwanda will have the capacity to resettle tens of thousands of people in the years ahead’, according to media reports the UK Home Office now considers 300 persons per year to be more realistic.

Assuming that the APA is implemented, at least to some extent, there are serious questions as to its sustainability. While the Australian approach is supported by both major political parties, there have been no transfers to Nauru and Papua New Guinea since 2014 and the PNG centre closed in 2019 after being found to be unconstitutional by PNG’s Supreme Court. In contrast, the Trump-era US-Guatemala Asylum Cooperation Arrangement, under which 939 asylum seekers were transferred from the United States to Guatemala on the basis of the safe third country concept, was suspended due to the COVID-19 pandemic and subsequently rescinded by the Biden Administration. Crucially, the implementation of the APA will no doubt affect the ‘migration diplomacy’ of the Rwandan government. 

A further question is whether the UK-Rwanda APA represents a domino in the externalisation of asylum in Europe. The answer here would appear to be somewhat mixed. On the one hand, since the announcement of the arrangement, the Danish government has said it is also in negotiations with Rwanda on a transfer arrangement (this was previously widely reported but not confirmed). Such negotiations build on a June 2021 amendment to Denmark’s Aliens Act providing for the transfer of asylum seekers to a third country outside the EU. On the other hand, Denmark’s opt-out from key parts of the EU asylum acquis would seem to render such an externalisation arrangement legally possible in Denmark  where it would not be in other EU member states. 

* The author is a convenor of the Refugee Law Initiative (RLI) Declaration on Externalisation and Asylum, which will be launched at the RLI Annual Conference 29 June – 1 July 2022.