Can Israel tip the balance? A High Court review of the UK-Rwanda deportation policy

Addressing the UK High Court, the United Nations High Commissioner for Refugees (UNHCR) offered scathing remarks. 

"There should be no transfers of asylum seekers from the UK to Rwanda under the UK-Rwanda Arrangement," read a written submission seen by The New Arab. 

The flagship immigration policy must be abandoned due to "a serious risk" of human rights abuses and a serial disregard for international refugee law in the African nation, according to the world’s leading voice for refugees.

Introduced under Boris Johnson’s government, the scheme was championed by the Home Office as a way to halt small boat crossings in the English Channel. However, critics say it will penalise the most vulnerable, create a tiered immigration system and - ultimately - break Britain’s obligations to the Refugee Convention. 

The UNHCR’s remarks, delivered as part of a five-day High Court review into the lawfulness of the policy, were intended to tip the balance away from offshore deportations. 

As government lawyers argued a one-way ticket to Rwanda was "not a punishment" and complied with all necessary laws, challengers - including refugee charities and unions - sought to expose the policy’s illegality and show why the African nation was not a safe decision. 

A core part of their case, and the UNHCR’s rebuttal: Israel’s previous immigration "partnership" with Rwanda. 

Understanding the High Court case 

The UK High Court review into the Rwanda deportation policy is a complicated amalgamation of challenges to government policy. 

Legal claims from refugee charities, Care4Calais and Detention Action, and the Public and Commercial Services Union (PCS), representing Home Office staff, have been rolled up with challenges from individual asylum seekers. 

Last week, we contested the Rwanda removals policy (with @pcs_union and @Care4Calais) in the UK's High Court. We await the verdict, which we know will have sincere implications for human rights for the UK. https://t.co/h9PsniOmYJ

— Detention Action (@DetentionAction) September 13, 2022

The New Arab spoke to Paul O’Connor, head of bargaining at the PCS, to break down key components of their case.  

O’Connor said the arguments can be separated into "generic" claims challenging the policy as a whole. This includes: firstly, proving that the policy is unlawful under international refugee law. 

The 1951 Refugee Convention states no refugee should be returned to a country where they face serious threats to their life or freedom. This is known as the principle of non-refoulement. Britain was one of its founding states. 

The convention also stipulates that "subject to specific exceptions, refugees should not be penalised for their illegal entry or stays". 

The UK Home Office has said repeatedly it wants to crack down on migrants who take “irregular” routes to the UK, such as small boat crossings which have soared in recent months. Rwanda deportations, they’ve said, are intended to "break the business model of people smugglers".

However, many of those embarking on the perilous journeys have few to no safe humanitarian corridors available to them. The majority of those who make the crossing are fleeing persecution in their home countries, according to data from the UK Refugee Council. 

Secondly, said O’Connor, claimants in the High Court are challenging Home Office statements that Rwanda is a safe "third country". 

Although the British government attests there will be a "case-by-case assessment" for each individual considered for relocation, former Home Secretary Priti Patel insisted Rwanda was a "safe" destination. Indeed, just hours before her resignation, the hard-line home secretary was featured in a Home Office video singing Rwanda’s praises. The tweet containing the original video no longer exists. 

Incredible timing for the Home Office to release this video of Priti Patel singing Rwanda's praises, while the High Court is hearing that it's an "authoritarian state with extreme levels of surveillance that...imprisons, tortures and murders" opponentshttps://t.co/PRt91yxBYZ pic.twitter.com/vSGQ8LEmB5

— Lizzie Dearden (@lizziedearden) September 5, 2022

Following Patel’s departure and the arrival of new Home Secretary Suella Braverman, The New Arab was sent this Home Office statement last Thursday: "Our thorough assessment found that Rwanda is fundamentally a safe and secure country with a strong track record of supporting asylum seekers."

"We have sufficient evidence to counter this claim," said O’Connor. "Rwanda is a hostile place for people to go."

According to documents revealed by the High Court, Kigali was taken off a government shortlist for possible deportation destinations. Instead, it appeared on a list of “14 countries presenting substantial issues in relation to asylum systems and human rights and/or political negotiability”. It was persistence from Patel and Boris Johnson that brought Rwanda back into consideration, said reports from The Independent.  

"Rwanda is a one-party authoritarian state that does not tolerate political opposition. It is a regime that repeatedly imprisons, tortures, and murders those it thinks is its political opponents," said Raza Husain KC for the challengers. 

Lawyers representing the claimants referred to internal government communications as evidence the British government repeatedly ignored warnings within their own ranks over Rwanda’s poor human rights record. 

There is also a third line of defence, explained O’Connor, based on specific asylum cases and an individual's risk of a breach of Article 3 rights. Article 3 in the European Convention on Human Rights says no one shall be subjected to torture or inhumane or degrading treatment or punishment.

"We have strong arguments," said O’Connor. 

"The five days were taken up by complex and labyrinthine legal argument, so it is not easy to decipher a straightforward story from it. I am hopeful that we will get home on something," he added. 

While the two judges, Lord Justice Lewis and Mr Justice Swift, had shown a willingness to engage with their points, the union official said, the outcome was "50-50". 

UN rights statements and the Israeli case study  

Evidence from the UNHCR was presented in court to support the two "generic" challenges. 

"UNHCR regrets, particularly in relation to one of the founding States of the Refugee Convention, that it is necessary for it to warn that the UK-Rwanda Arrangement is incompatible with UK’s fundamental obligations under the Refugee Convention," they said. 

The UN’s 28-page verdict rationalised that the policy breached the principle of refoulement, penalised people based on methods of arrival, threatened to strip asylum seekers of their entitled protections and eroded the "good faith" implementation of the Convention.  

"Rwanda is not a safe third country," they said. 

The international body pointed to “uncontroverted evidence” from a previous Israel-Rwanda immigration deal from 2014 to 2018 to make its case.

Under the scheme, Eritrean and Sudanese refugees in Israel were given the option of a "voluntary" transfer to Rwanda. A report - titled "Better a prison in Israel" released in 2018 - said those who took up the offer faced either prison time or could accept $3,500 to go to Africa. Many chose the latter. 

But, rather than resettlement upon arrival, their travel documents were confiscated and asylum seekers were quickly transferred to Uganda. Many then had to embark on dangerous journeys through Sudan, South Sudan and Libya.

The 2018 report - based on interviews with individuals who were eventually able to claim asylum in Germany and the Netherlands - detailed stories of human trafficking, abuse, and torture along these journeys. 

The UNHCR said migrants, who were told by Israeli authorities they would be accommodated in hotels and assisted in their asylum claims, were "routinely" and "clandestinely" taken by Rwandan authorities across the border. "[They] were not permitted to make asylum claims; received threats of deportation from unknown agents…and in some instances disappeared." 

During the UK’s High Court review, comparisons between the Israeli and the UK policy were highlighted by lawyers for the claimants. The “similarities” between the two schemes were discussed by government staff, said Raza Husain QC. 

Evidence from the Israeli scheme gives our challenge "momentum," said O’Connor. It’s significant when you put it in the context of the UNHRC’s statements, he added. "It shows what is happening on the ground."

Lewis Mudge, a Human Rights Watch Director for Central Africa who lived in Rwanda when the Israeli scheme was operational, told The New Arab it was "fair to compare" the two schemes "in terms of what they want to achieve".  

Mudge called the UK deal "inherently cruel [with] no respect for refugee law". Rwanda has a troubling record of kidnapping refugees across other parts of Africa, and of failing to uphold people’s fundamental rights, such as freedom of speech and assembly, he explained. 

Yet, it was "not fair," he added, "as abysmal as it is…[to compare the] transparency" of the two cases. Israel’s was more "murky" involving unofficial chats. In the UK, there are efforts to show the justification of the scheme "as hallow as they are".  

What we can do is "draw broad conclusions," he said. 

What happens next? 

In June this year, the first flight scheduled to take asylum seekers to Rwanda was cancelled minutes before take-off. This was due to an intervention by the European Court of Human Rights stipulating that UK domestic courts must first decide whether or not the policy is lawful. 

A judgement from last week’s high court case is unlikely to materialise for another couple of months. A related case from Asylum Aid will be heard in October, followed by one judgement delivered for both judicial reviews. 

However, reports have already emerged revealing that the Home Office is planning a second scheduled flight. Newly arrived asylum seekers were handed “notices of intent” from the UK government saying plans were underway to send them to Africa, reported the Guardian.  

Care Moseley, the founder of the charity Care4Calais, told The New Arab: "The government wants to go ahead regardless."

"There are so many things wrong [with the policy] it’s hard to know where to start."

Rosie McCabe is a journalist at The New Arab.

Follow her on Twitter: @RosieMcCabe3