Introduction

By the Safety of Rwanda (Asylum and Immigration) Bill (as introduced to the House of Commons), clause 2, Parliament seeks to declare Rwanda safe for asylum-seekers so that they can be transferred there from the United Kingdom. In so doing it seeks to oust the role of the judiciary in adjudicating both upon individual challenges to the lawfulness of the immigration decisions to transfer asylum seekers to Rwanda and upon the generic risks arising. The Bill eliminates judicial consideration of the risk of harm of onward refoulement from Rwanda to an asylum-seeker’s home state, even though that state is said by that person to be a place where they are at risk of persecution.

Base line criticism and challenges

The moral and intellectual squalor of the Bill is well documented. It causes offence not only because in enacting such legislation Parliament usurps the role of the Courts in adjudicating upon whether on assessment of the evidence there is a risk of harm for asylum seekers in Rwanda, but also because it promotes the government (which has a House of Commons majority) to being judge in its own cause as to the lawfulness of its individual decisions to send asylum-seekers to Rwanda, there being no judicial control on its behaviour if the Bill becomes law. Such an outcome is self-evidently inimical to the rule of law. As James Maddison put it in the Federalist Papers No. 47) (1788), ‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.’

Against that backcloth, in cases raised on what remains available to challenge, at a minimum domestic courts will come to test the lawfulness of the Bill’s ouster clause (that prevents assessment of the risk of harm due to onward refoulement from Rwanda to a home state), the scope for a stay of individual decisions, the risk of harm to individuals within Rwanda (as opposed to onward refoulement), and whether to declare the Bill’s provisions incompatible with rights protected by the Human Rights Act 1998 (such a declaration does not provide a remedy to any asylum-seeker set to be transferred).

Further, as a result of the ouster clause preventing UK courts from examining the issue, it is only at the international European Court of Human Rights in Strasbourg, on applications made by affected asylum seekers, that the risk of harm on account of onward refoulement to asylum-seekers’ home states will be considered, together with a case that there is a want of an effective remedy in UK courts.

In both UK courts and in the European Court of Human Rights, the preliminary issue of the circumstances in which an interim remedy may be ordered, so as to preclude transfer to Rwanda and the risk of attendant harm, is likely to be considered.

That much is understood. But the offence caused by the Bill is wider. It is not simply the offence to the rule of law in a country that wants for written constitution sitting at the apex of its laws that sets out the separation of powers and that guarantees fundamental rights. It is also the offence to reason in the attempt to define reality. You do not have to be a lawyer or politically interested in the rights of asylum-seekers to find the Bill’s provisions offensive. It is offensive to all in how it seeks to turn day into night and in its pretentiousness. This is so even for those who would support its ambitions.

The false logic of the Bill

The logic of the Bill is that: Parliament may have the final word that a foreign country is safe, Parliament is declaring that Rwanda is safe, therefore Rwanda is safe. By such a legal syllogism people (asylum seekers) may be transferred to a country that where they are at risk of harm and where they may suffer harm. In defiance of the Supreme Court judgement in AAA and Others [2023] UKSC 42, which ruled, on examination of the evidence, that there is a risk of harm to asylum-seekers in Rwanda, Parliament asserts that it knows better. Yet its reasoning falls at the first hurdle. Syllogistic reasoning alone, even when baked into a Bill, is no substitute for examination and careful assessment of the evidence of risk of harm in a foreign country. Rwanda does not become safe simply because the UK Parliament declares it to be so. The risk of harm to people remains as the Supreme Court found it.

Further, the statement in clause 1 the Bill, that it is recognised that the Parliament of the United Kingdom is sovereign, offers no support to the Bill’s global ambitions and risks mockery. Even Dicey in his dogmatic statement on the nature of parliamentary sovereignty in his Introduction to the Study of the Law of the Constitution recognised that there were real world limitations on the exercise of Parliament’s sovereign power (8th edition, Liberty Fund, pp. 30-33) and that was without discussion of the absurdity of declaring safe foreign countries over which the UK Parliament has no jurisdiction.

In declaring Rwanda to be safe, there is no suggestion that Parliament has attempted to assess the evidence of risk for itself, say in committee sessions, before making its declaration. There has been no procedure by which evidence of whether asylum seekers are at risk of harm in Rwanda was admitted and evaluated by parliamentarians trained and experienced in considering such material. On no basis arising out of institutional expertise and capacity can Parliament look the Court of Appeal and the Supreme Court in the eye without blinking. Instead of examining the evidence and drawing conclusions as to risk that are supported by reasons, Parliamentarians in declaring Rwanda safe indulge in act of faith in support of dogma. In the result, people (asylum-seekers), that the UK is bound by its international treaty commitments to protect, are at risk of harm.

The UK-Rwanda Treaty

In answer to the point that the Bill’s declaration that Rwanda is safe is predicated on the operation of the new UK-Rwanda Treaty, that too fails to secure Parliament’s vaulting ambition. By the new Treaty Rwanda promises to fulfil certain obligations, such as not to remove an asylum-seeker transferred there from the UK to any country other than the UK. But the risk of harm remains.

First, a promise to behave is not evidence of an absence of risk of harm; the two are in in different categories of things. One is a promise to alter behaviour, the other is an analysis of actual behaviour.

Second, Rwanda has form for making promises upon which it cannot deliver, as the Supreme Court’s consideration of the 2013 Israel-Rwanda Agreement and the 2022 UK-Rwanda Memorandum of Understanding show.

Third, even on its own terms the Treaty would need to be given time to be operationally effective and for an assessment of then-current risk of harm to be made, see the House of Lords International Agreements Committee Scrutiny of international agreements: UK– Rwanda Agreement on an Asylum Partnership (4th Report of Session 2023-2024, HL Paper 43).

Fourth, such evidence as there is of the assessment of the risk of harm in Rwanda since the time-point at which the UK courts assessed the evidence, suggests that the risk of harm remains, see UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum-Seekers under the UK-Rwanda arrangement: an update (15 January 2024).

Fifth, that Rwanda’s new and enhanced promises are made by way of a bilateral treaty rather than administrative arrangement does not without more indicate that it will be able to perform those obligations or that transferred asylum-seekers will not be at risk of harm from onward refoulement.

Legal Fiction

In his poem Legal Fiction, the poet William Empson writes:

Law makes long spokes of the short stakes of men.
Your well fenced out real estate of mind
No high flat of the nomad citizen
Looks over, or train leaves behind.

By declaring Rwanda to be safe, Parliament’s long spokes will operate to put people at risk of harm in foreign countries. As the Joint Committee of Human Rights recommended in its Second Report of 2023-2024 Safety of Rwanda (Asylum and Immigration) Bill (HC435, HL 62):

“58. We have considered the Government’s evidence that Rwanda is now safe, but have also heard from witnesses and bodies including the UNHCR that Rwanda remains unsafe, or at least that there is not enough evidence available at this point to be sure of its safety. Overall, we cannot be clear that the position reached on Rwanda’s safety by the country’s most senior court is no longer correct. In any event, the courts remain the most appropriate branch of the state to resolve contested issues of fact, so the question of Rwanda’s safety would best be determined not by legislation but by allowing the courts to consider the new treaty and the latest developments on the ground.”

As regards the Bill, in its exercise of sovereign power, Parliament’s self-restraint was and is required. Its absence is to Parliament’s shame.