Refugees, Rwanda, and the rule of law

Every Afghan and Syrian refugee who has sought asylum before a Rwandan court in recent years has been turned away. Many others have not even lodged their claims because the Rwandan government has “clandestinely” relocated them to neighbouring countries. This places these refugees at risk of refoulement: return to the country they had fled for fear of persecution, torture, or death.

These were two of the key observations made by UK Supreme Court President Robert Reed as he delivered the judgment striking down the government’s policy of removing asylum seekers from the United Kingdom and sending them to Rwanda. The Supreme Court justices unanimously found – on the “basis of the evidence and established legal principles,” that Rwanda was not a safe third country.

The question of Rwanda’s safety for asylum seekers was the core issue before the justices. Under international and UK law, a government may relocate asylum seekers – forcibly or otherwise – to another country, but only if that country is both willing to receive them and safe. Given the financial inducements offered to Rwanda’s authoritarian regime by the UK Home Office, Rwandan President Paul Kagame was willing. The UK paid Rwanda £140 million ($174 million) before a single refugee was relocated there, while the government promised to pay Rwanda more than £100,000 for each asylum seeker it took.

''The Court’s exhaustive review observed that Rwanda has a 'surprisingly high rejection rate for [asylum seekers] from known conflict zones,' and a 'misunderstanding ... of the concept' of refoulement. Under a broadly similar asylum agreement with Israel, it also engaged in refoulement, with refugees 'routinely clandestinely moved to Uganda' in breach of the policy. Much like the UK’s plan, the Israeli arrangement also ended when its Supreme Court struck it down.''

Even with such a large down payment, and with the promise of more to come, Kagame’s government failed to introduce the safeguards required to process asylum seekers properly. This, Reed stressed, was a breach not only of treaties, fundamental norms of international law, and the European Convention on Human Rights (the current bugbear of the hard-right wing of the Conservative Party), but also of British law.

For example, the Asylum and Immigration Act 2004 and the Immigration Act 1971 require the government to uphold the 1951 Refugee Convention, and to safeguard refugees’ “life and liberty.” Refoulement is prohibited, whether it is done directly or by “indirect return via a third country.”

This prohibition is absolute. There are no exemptions or loopholes that permit states to return asylum seekers to their place of origin while their claims are outstanding. By contrast, the agreement between the UK and Rwandan governments has no legal force. It is a purely political arrangement, based on a Memorandum of Understanding (MoU) that offers no protections for relocated refugees’ rights. It is neither “binding in international law” nor “justiciable in any court of law.” Free of legal obligations, Rwanda’s only reason to respect relocated refugees’ rights was to keep the money flowing from the Home Office.

If Rwanda had proven its ability to house asylum seekers safely, and to uphold their rights, this MoU might have been enough. But the Court scrutinised Rwanda’s track record and found that it had demonstrated no such thing. The entire arrangement hung on the fact that a “senior official” from the UK Foreign Office was “confident Rwanda would honour its obligations.” Unlike in cases such as Begum v. Secretary of State for the Home Department, where the Court was willing to defer to the government’s decision to strip an Islamic State recruit of her citizenship on national-security grounds, the question of asylum did not lie “within the exclusive province of the executive.”

The evidence before the Court of Appeal (and reviewed by the Supreme Court) showed egregious issues within Rwanda. Despite the country’s “great progress” since 1994, when it endured “one of the most appalling periods of violence in modern history,” its human-rights record “has been much criticised.” In 2021, the UK government itself condemned Rwanda’s “extrajudicial killings, deaths in custody, enforced disappearances, and torture”; and in 2018 Rwandan police fired “live ammunition at refugees protesting over cuts to food rations.”

Those events may have been enough to give the justices pause – and should have been more than enough to make the UK’s home secretary reconsider the arrangement – but it was Rwanda’s recent record on asylum policy that revealed it could not be trusted. The Court’s exhaustive review observed that Rwanda has a “surprisingly high rejection rate for [asylum seekers] from known conflict zones,” and a “misunderstanding ... of the concept” of refoulement. Under a broadly similar asylum agreement with Israel, it also engaged in refoulement, with refugees “routinely clandestinely moved to Uganda” in breach of the policy. Much like the UK’s plan, the Israeli arrangement also ended when its Supreme Court struck it down.

A tone of disbelief pervades the UK Supreme Court decision. “Surprising” – a euphemism used by judges when they really mean “outrageous,” “absurd,” or “idiotic” – appears throughout the judgment, and one can almost see the justices’ raised eyebrows over the home secretary’s suggestion that Rwanda’s “past and present” conduct does not matter. By refusing to add any caveats to their judgment, the justices unambiguously signalled their contempt for the home secretary’s argument. There is no suggestion that the policy could be made lawful if Rwanda were to offer more specific, legally binding commitments.

Their damning judgment is a fitting coda to Suella Braverman’s tenure as home secretary. The day before the decision came down, she was sacked, ostensibly for accusing police of being too soft on pro-Palestinian protesters. The defenestration of her flagship policy (which she had tried to persuade other countries to emulate) is further confirmation of her incompetence – and a fitting denouement to her failed tenure.

Nicholas Reed Langen is a 2021 re:constitution fellow, edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap.

This article originally appeared on Project Syndicate. 

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