Explained: why the UK’s highest court declared Rwanda agreement unlawful

24 November 2023 · Carmel Rickard

A combination of factors led the UK’s apex supreme court to hold that the government’s deal with Rwanda wasn’t lawful. Among them was Rwanda’s poor human rights record, and the Rwandan judiciary’s lack of independence. The deal, outsourcing the management of asylum-seekers to Kigali, is a key element of the UK government’s policy. But it has also been hotly contested, both in political debate and in the UK courts. Initially, the divisional court dismissed a challenge to the deal, but that approach has now been twice rejected, first by the court of appeal and more recently, by the UK’s supreme court. Here’s what the top court found.

Read judgment

Rwanda’s poor human rights record, plus a judiciary that is less than independent of government, were among the central issues cited by the UK’s highest court when it found that asylum-seekers wouldn’t be safe if they were sent from the UK to Rwanda for assessment.

The case dealt with an agreement signed by Rwanda and the UK for asylum-seekers who have come to the UK to be sent to Rwanda for their claims to be assessed there instead.

As you might expect in a potentially explosive matter like this, the five justices of the UK’s supreme court began their landmark decision by stressing that they were ‘not concerned with the political debate’ surrounding the government’s policy on how to handle asylum-seekers.

Instead, their sole focus was the legal question of whether the Rwanda policy was ‘lawful’ in this sense: was Rwanda a ‘safe’ country for asylum-seekers?

Safe from refoulement

The judges emphasise that among the criteria for a state to be designated as a ‘safe third country’ to receive asylum seekers, was certainty that an asylum applicant’s life and liberty wouldn’t be at risk because of race, religion and other factors like having particular political views or belonging to a particular social group.

The state would also have to respect the principle of non-refoulement – that a refugee or asylum-seeker will not be returned to a country where their life or freedom would be threatened.

Further, in the agreement between Rwanda and the UK, Rwanda agreed to treat each person applying for asylum in accordance with the UN Refugee Convention and international and Rwandan standards.

This meant that Rwanda has to ensure that asylum-seekers are protected from ‘inhuman and degrading treatment and refoulement’, with important guarantees of access to an interpreter and to legal help, for example. They must also have guaranteed access to ‘an independent and impartial process of appeal.’

UNHCR’s unrivalled experience

How realistic were Rwanda’s promises on these issues?

The supreme court said that in this case, the court had to decide for itself whether there were substantial grounds to believe that asylum seekers, sent to Rwanda, would be protected, or whether there was a real risk of ill treatment and refoulement.

The divisional court, which first heard this dispute, deliberately ignored all the evidence and input from the UN High Commission on Refugees as well as other key evidence like Rwanda’s history of refoulement, and defects in the country’s existing asylum system, evidence that was crucial to deciding whether this was actually a ‘safe’ country for asylum seekers.

The divisional court had been wrong to exclude evidence from the UNHCR, the supreme court said. The UNHCR had unrivalled expertise and experience in questions of asylum-seekers and their safety, among other issues. It had been working in Rwanda for many years, having set up a permanent base there in 1993, and had extensive experience of the ‘general human rights situation’ in Rwanda.

Political killings

Since the 1994 genocide, Rwanda had made great progress, said the judges. But while it had become a ‘valued member of the Commonwealth’, its human rights record had been ‘much criticised’.

Political killings in Rwanda, deaths in custody, enforced disappearances and torture had all been a cause of concern and comment by UK courts over some years. The UK courts had even noted British police warnings to Rwandan nationals, living in Britain, ‘of credible plans’ by the Rwandan government to kill them.

According to UN expert reports, most human rights violations were related to criticism of the government, and there were also concerns about restrictions on media freedom and political activities in Rwanda.

Further, said the judges, Rwanda had ratified many international human rights conventions, so its poor human rights record raised ‘serious questions’ about compliance with its international obligations.

Judges might ‘yield to pressure’

So far, Rwanda has had little or no experience of considering asylum claims from the countries of origin of most claimants in the UK, like Albania, Iran, Syria and Vietnam. And the way refugees were handled by Rwanda’s own internal system up to now – people from Burundi and the Democratic Republic of Congo – was a matter of concern to the UNHCR. For example, no written reasons were provided for rejecting applications and there was no right of appeal.

According to the UNHCR, while there was a right of appeal to the high court, with the possibility of a further challenge in the appellate courts, there had never in fact been an appeal since the right was introduced. Untested, there was no evidence as to how it would work in practice.

The supreme court quoted concerns about the ‘willingness of the Rwandan judiciary’ to make findings against the Rwandan government, and pointed to previous UK court judgments that noted evidence of ‘some risk’ that judges ‘might yield to pressure from the Rwandan authorities.’ The evidence make clear that this view was shared by the UK’s Foreign, Commonwealth and Development Office.

Lack of independence

But, say the supreme court judges, ‘the risk of a lack of independence in politically sensitive cases is not confined to the judiciary.’ There was also concern that, while ‘independent legal support and advice’ was available, it would be ‘independent’ only if the matter didn’t become ‘political’.

This was relevant because the courts could be asked to overturn the decision of a government minister or of principal government bodies. ‘The implication of the evidence is that the legal profession and the courts might not operate independently in such cases.’

The present internal Rwandan system of dealing with refugees doesn’t include legal representation. And though the proposed scheme with the UK tried to deal with this, representatives of the Rwandan government had indicated that changes (like legal representation) ‘might not be straightforward to implement in practice’, a concession that clearly worried the supreme court.

High rejection rate

Then there was UNHCR evidence that seems to show a Rwandan bias in relation to particular countries, like a 100% rejection rate of asylum seekers from Afghanistan, Syria and Yemen, three countries from which asylum seekers sent from the UK to Rwanda, might well come.

‘This is a surprisingly high rejection rate for claimants from known conflict zones,’ the judges commented, noting that in the UK, claims from those three countries were successful in 74% of cases from Afghanistan, 98% of cases from Syria and 40% of cases from Yemen.

‘The UNHCR attributes the refusal of such claims by the Rwandan authorities to a view that persons from the Middle East and Afghanistan should claim asylum in their own region.’

‘Political’ decisions on asylum

The court was also concerned about UNHCR evidence of actions by Rwanda’s immigration officials that seem to show asylum decisions being made for political reasons.

For example, certain asylum seekers, from a non-African country with which Rwanda had close political ties, were refused access to Rwanda’s asylum system, and were summarily rejected by the immigration department. Some were forcibly expelled to Tanzania, and others threatened with refoulement to their country of origin.

For the supreme court, this raised the concern not only that the immigration authorities failed to comply with Rwanda’s obligations under the Refugee Convention – but that they had done so for political motives, namely, to further the country’s foreign policy (by not offending a state that was a political ally).

Why not read it yourself?

The judgment is clear, easy to read and not too long. It will give readers fuller insight into the thinking and approach of the UK’s top court to the dispute over the controversial Rwandan project.

But it could also be significant more locally, enriching judicial and legal thinking about the difficult questions raised in considering cases and policy related to refugees, asylum-seekers and others who have been forced, for whatever reason, to leave their homes.

Carmel Rickard

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