The government has announced a deal to outsource to Rwanda the UK’s responsibility to assess asylum claims and host refugees. Boris Johnson has just made a speech saying that “anyone entering the UK illegally, as well as those who have arrived illegally since January 1st, may now be relocated to Rwanda”. Details are not yet available but the BBC reports that this “would be restricted to mostly single men the British authorities believe are inadmissible”.
This is framed as a response to those crossing the Channel in small boats, but as announced could apply to other modes of unauthorised entry: for example, Ukrainian refugees who have entered the UK via Ireland without a visa.
I wrote last year that the supposed “turnaround” or “pushback” policy of intercepting Channel boats at sea would never be implemented. Johnson has now announced its effective abandonment: “after much study and consultation… it’s clear that there are extremely limited circumstances when you can safely do this in the English Channel. And it doesn’t help that this approach I don’t think would be supported by our French partners”.
What does offshoring of asylum claims involve?
The idea of “offshoring” or “extraterritorial processing” is not new in the UK and has been implemented (then abandoned) by Australia. The basic idea is that an asylum seeker is either intercepted before physical arrival and removed to a safe third country or, if they reach the territory of the country concerned, they are then removed to the safe third country.
On one model the asylum seeker, if recognised as a refugee, might then be readmitted to the first country. On another, they will remain in the safe third country or be resettled to yet another country. From what we know of the Rwanda deal, those recognised as refugees will be forced to remain in that country and not allowed to come to the UK. Most people who claim asylum in the UK are recognised as refugees, including those arriving by boat.
As the UN Refugee Agency says, experience shows that these agreements are “eye-wateringly expensive, often violate international law, lead to the use of widespread detention and lead to more smuggling, not less”. The Australian experience was that it came at a horrendous financial and human cost but did not deter boat journeys, nor save lives at sea, nor “break the business model” of people smugglers.
Borders Bill provisions
The Home Office has been briefing that “existing asylum law will be enough to implement the plan” but can only be referring to the forthcoming Nationality and Borders Bill.
At present, it is generally unlawful for an asylum seeker to be removed from the United Kingdom while an asylum claim or asylum appeal is being pursued. Section 77 of the Nationality, Immigration and Asylum Act 2002 provides:
No removal while claim for asylum pending
(1) While a person’s claim for asylum is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
This safeguard is removed by clause 28 combined with Schedule 3 of the Bill (as brought from the Commons; the final version will probably be renumbered). These enable removal of an asylum seeker to a “safe country” while their claim is pending.
A “safe country” is defined as follows:
(a) it is a place where a person’s life and liberty are not threatened by reason of the person’s race, religion, nationality, membership of a particular social group or political opinion,
(b) it is a place from which a person will not be removed elsewhere other than in accordance with the Refugee Convention,
(c) it is a place—
(i) to which a person can be removed without their Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) being contravened, and
(ii) from which a person will not be sent to another State in contravention of the person’s Convention rights, and
(d) the person is not a national or citizen of the State.
The explanatory notes to the Bill say that clause 28 is intended to support
the future object of enabling asylum claims to be processed outside the UK and in another country. The purpose of such a model is to manage the UK’s asylum intake and deter irregular migration and clandestine entry to the UK.
Paragraphs 7-10 of Schedule 3 give the Home Secretary powers to remove states from the list of safe countries.
Where the claim is deemed “clearly unfounded”, paragraphs 11 to 17 of Schedule 3 remove even non-suspensive appeal rights. Schedule 3 also makes it possible to remove asylum seekers to a safe third country while their claims are pending without having to issue a “clearly unfounded” certificate under schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
How legal is this?
It remains to be seen.
The Refugee Convention, as it has been interpreted in the United Kingdom so far, does not explicitly prevent the removal of a refugee to a safe third country. Article 31 prevents the imposition of penalties on refugees in certain limited circumstances. Article 32 prevents the expulsion of a refugee, but only where the refugee is lawfully present. In ST (Eritrea) [2012] UKSC 12, the Supreme Court held that an asylum seeker, even if registered as such, is not lawfully present until they have received a grant of leave to remain. Article 33 prevents refoulement to a territory where a person’s life or freedom would be threatened for a Convention reason.
Human rights law might offer more practical protection. Unlike Australia, the UK is a state party to a binding, enforceable and active regional human rights convention, the European Convention on Human Rights. Removal to a “safe” country where in fact the person’s human rights would be violated, for example by prolonged arbitrary detention or exposure to torture or inhuman or degrading treatment, would clearly be unlawful. This might be a question of fact, depending on what evidence was available. It has already been pointed out that Rwanda is a country that produces LGBTQI+ refugees and doubtless other human rights concerns will come to light.
A further concern might centre on whether effective procedural guarantees exist to protect a claimant against arbitrary refoulement to another country: see M.S.S. v. Belgium and Greece [2011] INLR 533 and T.I. v. The United Kingdom [2000] INLR 211. It is well established that states seeking to expel asylum seekers to a third country without examining the asylum request on the merits have a duty not to remove them if there are substantial grounds for believing that such action would expose them to human rights breaches (under Article 3 in particular).
Whatever the details of the Rwanda deal, litigation will inevitably follow.
