The UK-Rwanda deal and its Incompatibility with International Law
29 Friday Apr 2022
By Dr. Maja Grundler, PhD researcher at Queen Mary University of London, and Elspeth Guild, Professor at Queen Mary University of London
On 14 April 2022, the UK government published a Memorandum of Understanding (MoU) concluded with the government of Rwanda for the provision of an asylum partnership arrangement. The MoU foresees the transfer ‘of asylum seekers whose claims are not being considered by the United Kingdom, to Rwanda, which will process their claims and settle or remove (as appropriate) individuals after their claim is decided.’
Following the UK’s exit from the European Union (EU), this MoU is part of the UK’s restructuring of its refugee and asylum law. Yet, the MoU was published before the Nationality and Borders Bill becoming law – the primary law instrument, which is set to contain a legal basis for the safe third country concept underpinning the MoU. For the moment, such a provision only exists in secondary legislations, in the Immigration Rules (Rules 345A-345C). Nevertheless, it appears that the UK government intended the MoU to have immediate effect, with Prime Minister Boris Johnson stating on 14 April that ‘from today […] anyone entering the UK illegally – as well as those who have arrived illegally since January 1st – may now be relocated to Rwanda.’ Thus, not only was the MoU activated without a legal basis in primary law, but it is to be applied with regard to asylum seekers who arrived in the UK before the MoU was even signed. Both of these issues raise serious concerns with regard to the rule of law. What is more, the MoU is incompatible with the UK’s obligations under refugee, human rights, and anti-trafficking law, as well as the Global Compacts.
Incompatibility with Refugee and Human Rights Law
The MoU has been described as an example of externalisation, i.e. ‘efforts by some States (particularly those in the Global North) to try and externalise certain basic functions in the spheres of border control and asylum’. As opposed to other instances of externalisation (such as visa requirements and carrier sanctions, or pushbacks conducted by non-state actors) one aspect often at issue in externalisation cases – the question of whether the asylum seekers in question are within the jurisdiction of the externalising state – could not be less contentious when it comes to asylum seekers who have arrived in the UK irregularly. These individuals are clearly within the jurisdiction of the UK and therefore benefit from the UK’s obligations under refugee and human rights law.
The MoU is problematic in light of the UK’s obligations under the 1951 Convention Relating to the Status of Refugees (Refugee Convention), as well as a number of human rights instruments, such as the Convention against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the European Convention on Human Rights (ECHR).
First of all, the MoU applies only to individuals ‘whose claims are not being considered by the United Kingdom’, i.e. are declared inadmissible because of their irregular entry into the UK. However, Article 31(1) of the Refugee Convention exempts refugees from penalisation for irregular entry, thus explicitly recognising that most refugees have no choice but to travel irregularly. Treating the asylum claim of a refugee who enters irregularly as inadmissible constitutes a penalty.
Further, the MoU may violate the right to non-refoulement, found in Article 33(1) of the Refugee Convention, Article 3(1) CAT, and implied in a range of rights in the ICCPR and ECHR, e.g. the right to life or the prohibition of inhuman or degrading treatment. While the agreement states that the asylum claims of transferred individuals will be assessed in Rwanda in line with the Refugee Convention and international human rights law, the principle of non-refoulement applies not only in relation to an individual’s country of origin, but also with respect to a third country, such as Rwanda. In light of Rwanda’s human rights record, which, according to Amnesty International, contains ‘violations of the rights to a fair trial, freedom of expression and privacy’ as well as ‘enforced disappearances, allegations of torture and excessive use of force’, it is doubtful whether Rwanda is, in fact, safe for transferred asylum seekers. This applies, in particular, to Rwandan nationals, who may be fleeing the country and must not be returned there without having undergone an individual asylum procedure, as well as LGBTQI+ individuals.
What is more, it is not clear that Rwanda will, in fact, be able to guarantee the rights provided for in the Refugee Convention, nor socio-economic rights generally, which may raise issues under the ICCPR and other human rights instruments.
Incompatibility with Anti-Trafficking Law
The MoU is also incompatible with international anti-trafficking law. While the MoU makes reference to Rwanda ‘accommodating’ the need of individuals who are victims of modern slavery, this is not enough to bring the agreement in line with the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). Firstly, the UK has an obligation to identify trafficked persons as per Article 10 ECAT. As soon as there are reasonable grounds to believe that an individual is a trafficked person, that person ‘shall not be removed from [the signatory state’s] territory until the identification process […] has been completed’ (Article 10(2) ECAT). Secondly, persons issued with a reasonable grounds decision have the right to a recovery and reflection period of at least 30 days under the ECAT, during which, according to Art 13(1), ‘the Parties shall authorise the persons concerned to stay in their territory’.
Further, trafficked persons who are conclusively identified may be eligible for a residence permit (Article 14 ECAT). While the granting of residence permits is phrased as a discretionary provision in the ECAT, following the UK Supreme Court’s 2020 judgement in MS (Pakistan), trafficked persons in the UK must be granted a residence permit where the investigation of their trafficking experience is ongoing. Finally, Articles 12(3) and 12(4) ECAT provide for medical assistance and access to the labour market for ‘victims lawfully resident within [the state’s] territory’ (emphasis added).
Incompatibility with the UK’s Obligations under the Global Compacts
In 2018, the UK endorsed the Global Compact on Refugees (GCR) and the Global Compact on Safe, Orderly and Regular Migration (GCM). While the Compacts are non-binding and do not create any new obligations for states, the UK-Rwanda deal is incompatible with the UK’s existing obligations in international law, as discussed above, on which the Compacts are based, and also with the Compacts’ guiding principles and objectives.
The Compacts are underpinned by the principles of non-discrimination and non-regression, respect for the rule of law, and respect for human rights obligations. The principle of non-regression is particularly noteworthy in the context of the MoU. This principle ensures that states endorsing the GCM do not adopt legal provisions which are less favourable than those in force at the time the Compact was endorsed. The MoU, however, is clearly regressive and therefore incompatible with commitments made under the GCM. Further, the GCM in Objective 5 calls on states to establish regular migration pathways and in Objective 7 to address and reduce vulnerabilities in migration. The MoU works to defeat both Objectives. Instead of offering refugees safe and legal routes to the UK, irregular arrivals are removed to a country which is not best placed to address their needs.
Meanwhile, the GCR makes it clear that in order to achieve effective responsibility-sharing in refugee situations, states must focus on a transfer of resources, not people. While the GCR calls for resettlement of refugees, it does not foresee moving applicants for protection.
Conclusion
While EU Commissioner for Home Affairs Ylva Johansson has condemned the UK-Rwanda MoU, it has been reported that Denmark is seeking a similar deal with Rwanda. Indeed, in theory, the EU Asylum Procedures Directive (by which Denmark, however, is not bound) provides the necessary legal basis for returning asylum seekers to a ‘safe third country’ (Arts 33 and 38). However, in light of the above, Denmark and other states toying with idea of concluding their own MoU with Rwanda should think again.
In the UK, the MoU is likely to lead to both legal and practical challenges. Litigation is likely to ensue, with individuals selected for relocation seeking to challenge their removal. In addition, the BBC reports that Rwanda is ‘thought to have enough space for about 100 people at a time and to process up to 500 a year,’ while, according to government statistics, in 2021, over 35,000 people entered the UK irregularly, 28,526 of them by boat.
