Tinkering with International Law and the Constitution – UK Constitutional Law Association
On 15 November, the Supreme Court issued its much-awaited judgment in the case of AAA and others v the Home Secretary, commonly referred to as the Rwanda asylum policy case. The decision came notably quickly, almost a month after the case was heard, indicating the Court’s responsiveness to the urgency and the wider public interest surrounding the case. Despite the swift turnaround, the judgment was meticulously formulated, reflecting the serious implications of the case.
Background to the dispute and the contested law
The Supreme Court appeal dealt with the Secretary of State’s policy of transferring certain asylum seekers to Rwanda, where their claims would be processed by Rwandan authorities instead of the UK and if successful they would stay there. The central issue was the legality of this Rwanda policy, which was given effect under paragraphs 345A to 345D of the Immigration Rules, made in accordance with section 3 of the Immigration Act 1971. These rules allow asylum claims to be dismissed if not made in a safe third country where possible. Asylum seekers can then be transferred to that country or another agreeing safe country without assessing their claim’s merits. A safe country is defined as one where, among other criteria, the principle of non-refoulement is upheld as per the 1951 Refugee Convention, and the right to be free from torture and inhuman treatment is respected in line with international law.
The Immigration Rules include guidance (Country Policy Information Notes) detailing the UK-Rwanda Migration and Economic Development Partnership based on a Memorandum of Understanding between the Government of the UK and the Government of the Republic of Rwanda. This is a political statement which is not binding in international law. The guidance explains the transfer and processing of certain asylum seekers to Rwanda which under the terms of the Memorandum is subject to procedural guarantees including ensuring protection from inhuman and degrading treatment and refoulment of asylum seekers (i.e. forced return back to their country or to a country where they may face a real risk of persecution, inhuman or degrading treatment, punishment, or death). The guidance also suggests that relocating asylum seekers to Rwanda does not risk violating Article 3 of the European Convention on Human Rights (ECHR), when considering issues of refoulement or asylum process deficiencies. It is also important to note that for an asylum seeker to be removed to another country while their claim is pending, the Secretary of State must certify under the Asylum and Immigration (Treatment of Claimants) Act 2004 Act that the country in question will not threaten the asylum seeker’s life or liberty and will not send them to another state in violation of the UN Refugee Convention.
Several asylum seekers challenged the Secretary of State’s inadmissibility and removal decisions, issued under the Immigration Rules between May and July 2022, which stipulated that their claims would not be processed in the UK. Instead, they were to be sent to Rwanda where the respective immigration authorities would assess their asylum claims there and grant asylum to successful applicants. The asylum seekers also challenged the Secretary of State’s issuance of certificates to that effect under the 2004 Act mentioned above.
The Supreme Court’s decision
The Supreme Court ruled that the Secretary of State’s policy was unlawful and dismissed the appeal. This affirmed the Court of Appeal’s earlier judgment that there were substantial risks of improper determination of asylum claims by Rwandan authorities and, consequently, significant risks of refoulement. As long as these risks persist, the Court held, any removals under the UK-Rwanda Memorandum would violate section 6 of the Human Rights Act which makes it unlawful for a public authority to act in a way that is incompatible with a person’s rights under the European Convention on Human Rights. The Supreme Court meticulously evaluated the principle of non-refoulement, an essential protection under international human rights, refugee and customary law (considered to form part of common law) embedded in numerous other international treaties that the UK has ratified and implemented in domestic law. The latter is evidenced by statutes like the Asylum and Immigration Appeals Act (1993), the Nationality, Immigration and Asylum Act (2002) and the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Conversely, the Court decided, the retained EU legislation regarding asylum seekers ceased to apply in the UK following legal modifications made after Brexit and was not relevant in this case.
The Supreme Court focused on assessing the reliability of the diplomatic assurances provided by the Rwandan government regarding the protection of asylum seekers transferred to Rwanda. This evaluation considered Rwanda’s longstanding human rights challenges and the shortcomings in its asylum system. The Court’s scrutiny included an examination of Rwanda’s history with refoulement incidents in past agreements with other states, as well as issues arising since the UK agreed to the Rwanda plan. The Supreme Court referred, in particular, to Rwanda’s 2013 transfer agreement with Israel which the Israeli Supreme Court declared unlawful in 2018 (para 97). Hence the key question was the credibility of Rwandan assurances. The UK Supreme Court emphasised that determining this involves a practical and factual evaluation, assessing whether, based on the available evidence and circumstances, there are adequate safeguards to ensure asylum seekers are protected from ill-treatment. The Court was not satisfied that this is the case at present and the government had neglected to thoroughly evaluate the credibility of the given assurances. Lord Reed, in delivering the judgment, agreed with the Court of Appeal’s determination that Rwanda is not a safe country for asylum seekers. He expressed criticism of both the government’s assessment and the prior High Court decision which found no infringement, arguing that they both failed to appropriately consider the relevant evidence.
Two constitutional implications
The Court’s judgment concerning the UK’s asylum policy and Rwanda has significant constitutional implications. This blog post explores two critical aspects focusing on i) the executive’s respect for international law and the role of judicial review, and ii) the necessity of parliamentary scrutiny in international agreements.
- Executive’s Respect for International Law and the importance of Judicial Review
The Supreme Court’s decision, highlighting flaws in Rwanda’s asylum procedures, underscores the importance of judicial oversight in the UK’s foreign affairs’ conduct and international human rights law compliance. The UN Refugee Agency’s reports highlighting Rwanda’s troubling human rights history and insufficient asylum claim processing influenced the Court’s decision. Based on this evidence, the UK government’s thoroughness in international diplomacy and its level of commitment to international human rights standards is put into question. The fundamental and non-derogable character of the principle of non-refoulement, safeguarded by the 1951 Refugee Convention, the 1984 Convention against Torture, and the European Convention on Human Rights (ECHR), requires more than just simple assurances. It necessitates that these assurances are consistently implemented and practiced by the designated safe country in every case. As Lord Reed therefore highlighted, the issue extends beyond just the ECHR in the context of returning asylum seekers to their countries of origin without thoroughly assessing their claims. Tom Bingham explained in his seminal book The Rule of Law, that the rule of law mandates that the State adheres to its obligations both in international and national law. As such, even if the UK were to withdraw from the Council of Europe, other international treaties to which it is a signatory would still continue to guide statutory interpretation and a violation of international law would constitute a breach of the rule of law.
The significance of judicial review in this context cannot be overstated. The Court’s determination was influenced by the guidance provided by the European Court of Human Rights in cases concerning the removal of asylum seekers from a contracting state to a third intermediary country having regard to deficiencies identified by bodies such as UNHCR in cases including Othman v UK. The Supreme Court therefore emphasised that (contrary to the High Court’s assessment in the first case brought by the asylum seekers against the Home Secretary) it is not sufficient to rely solely on the expertise that resides in the executive, the good relationship that the UK has with an intermediary country, or the terms of a Memorandum signed by the UK and a third country. As the Supreme Court explained in para 42 of the judgment:
[…] an assessment of whether there is a risk of refoulement of asylum seekers removed to Rwanda requires an examination of how the asylum procedure operates there, in order to ensure that it affords sufficient guarantees that asylum seekers are not at risk of being removed to their country of origin without a proper evaluation of their claims.
Although the Court did not directly challenge the UK’s asylum policy regarding removal decisions, its conclusions about Rwanda not being yet a safe destination serve as a warning. This implies the need for the UK government to be cautious in the manner it conducts its foreign affairs prerogative, particularly when entering political agreements with countries that may not comply with non-refoulement obligations. The Supreme Court also explained that assessing the value of assurances given by another country is not analogous to assessing whether a particular course of action is in the interests of national security (as was the case in Begum in 2021), and as such the role of the court cannot be limited in this case.
Following the Supreme Court’s decision, the Prime Minister has proposed emergency legislation and upgrading the current Memorandum with Rwanda into a treaty, aiming to address the issues identified by the Supreme Court. However, the Supreme Court’s judgment implies that these issues cannot be remedied simply through new legislation or a treaty; instead, they require action from the Rwandan authorities, a process that is likely to be time-consuming. The swift move to classify Rwanda as a safe country through emergency legislation continues the government’s winding path of sidestepping international law, a tactic seen inter alia in the criticised early version of the Internal Market Bill which attempted to override parts of the EU-UK Withdrawal Agreement related to the Northern Ireland Protocol. By advancing the Rwanda policy, the government seems to overlook the Supreme Court’s warnings, seeking to pass laws that could intentionally violate the UK’s international obligations, extensively discussed in the Court’s judgment.
In a subsequent article in The Telegraph, former Home Secretary Suella Braverman suggested amending the Illegal Migration Act 2023 which could result in a new treaty with Rwanda being ratified with little Parliamentary involvement. This is because either full implementing legislation might not be required, or the government could use secondary legislative powers to effect any changes. Currently, section 1(5) of the Illegal Migration Act 2023 represents a novel approach in the UK’s constitutional framework by specifically exempting certain persons who enter or arrive in the United Kingdom in breach of immigration control from the protections afforded by section 3 of the Human Rights Act 1998. This exemption is relevant to the interpretation of both primary and subordinate legislation in a way which is compatible with the rights under the European Convention on Human Rights. The application of this exclusion to asylum seekers being transferred to Rwanda sets a notably alarming precedent.
However, given that the UK remains a member of the Council of Europe, individuals would retain the right to escalate their cases to the European Court of Human Rights which may find again that the UK policy infringes upon the applicant’s Convention rights, such as the unqualified right under Article 3 ECHR which includes a duty to investigate allegations of torture, inhuman or degrading treatment or punishment. Such a potential finding would not alter the legal impact of an amended Illegal Migration Act due to the fact it is an Act of Parliament. Yet, as the Supreme Court noted, the European Convention is just one of many international legal instruments safeguarding asylum seekers’ rights. Braverman’s proposals carry deeper implications: her suggestion of introducing legislation that would eliminate legal challenges and judicial review poses a significant risk to the rule of law and the constitutional balance of powers in the UK. Such measures could effectively shield the executive branch from necessary scrutiny, both from within the UK and from international bodies, thereby disrupting the established system of checks and balances and amounting to rule of law backsliding. This brings to mind Lord Steyn in Jackson at para 102:
In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.
The UK’s constitutional landscape has evolved since those observations were made nearly twenty years ago, yet situations may still emerge necessitating judicial interpretation of the general principle of parliamentary sovereignty. The UK constitution, while not limiting Parliament’s legislative authority, seeks to impose legal boundaries on governmental actions through the rule of law, given statutory recognition in the Constitutional Reform Act 2005 as a principle of the UK constitution. Paul Craig explains that the rule of law requires not only a legal justification for legislative and governmental actions, but also integrates a rights-centric component. This component dictates that certain rights either stem from or are safeguarded by the rule of law, making their violation an infringement of the rule itself. Empirical research shows that judicial review is indispensable for ensuring that all administrative bodies adhere to legal limits, empowering claimants and fostering greater trust and confidence in the system. The courts’ role in upholding those limits is crucial for maintaining a strong constitutional balance, particularly in the protection of human rights. Cases like Privacy International bring to light the potential limitations on parliamentary sovereignty that arise from the rule of law. Yet, as Mark Elliott and Alison Young point out, questions still linger regarding the specific requirements of the rule of law, how it should be balanced with parliamentary sovereignty, and the exact wording needed to effectively exclude judicial review, if such exclusion is at all possible.
- The Imperative of Parliamentary Scrutiny and its improvement
I have previously contended that a Memorandum of Understanding (being an expression of political will) is not the most suitable instrument for the UK-Rwanda agreement, particularly due to its significant impact on individual rights. The UK-Rwanda Migration and Economic Development Partnership Memorandum includes important assurances and safeguards, such as those related to inspection and monitoring, access to legal assistance for relocated individuals, and data protection. These elements create legitimate expectations regarding the conduct of the parties to the Memorandum. A treaty, which would explicitly define the rights of the individuals involved in a way that is in line with the UK’s international law obligations, would offer a more robust framework for upholding these legitimate expectations. It would enable individuals to have a reasonable reliance on the conditions established by public authorities. In this context, the Prime Minister’s response to transform this agreement into a treaty represents a positive move, contingent on Rwanda demonstrating in the near future that its commitments are being effectively and demonstrably upheld. This approach would formalise and potentially enhance the adherence to international standards and expectations.
The UK-Rwanda MoU was only published on 14 April 2022 when it became operational on signature, which left no space for any type of review or revisions by Parliament. A new treaty, on the other hand, would need to undergo Parliamentary scrutiny under Part 2 of the Constitutional Reform and Governance Act (CRaG) 2010. This scrutiny is vital for ensuring international agreements align with the UK’s constitutional values, including the rule of law. Parliamentary debate, spurred by the Supreme Court’s observations, will undoubtedly underscore the necessity for Rwanda to implement substantial structural reforms. As the Supreme Court stressed at para 102:
[…] intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice. […] The central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement (including in the context of an analogous arrangement with Israel), and the scale of the changes in procedure, understanding and culture which are required.
The anticipated reforms are expected to take time to implement effectively, with a duration that probably surpasses the timeline for the next general election in 2024 or early 2025. As underscored by the Supreme Court, and citing the Lord Chief Justice, the question of whether deficiencies in Rwanda’s asylum system can be rectified is not a matter that falls within the government’s special institutional expertise (para 58). It is expected that Parliament will actively engage with and address this question if a new treaty is laid before it.
The Rwanda case, however, highlights the limitations inherent in the existing CRaG process of treaty scrutiny. As Alexander Horne, Arabella Lang, and Holger Hestermeyer have argued, ‘treaty scrutiny mechanisms in the House of Commons are both fragile and contingent’. Indeed, the executive branch has the primary responsibility and authority in treaty matters. Parliamentary scrutiny occurs late in the treaty negotiation process, often leaving little time for meaningful examination. Under CRaG, treaties must be laid before Parliament for 21 sitting days, during which either House can object to their ratification. A minister has the discretion to extend the 21-day sitting period for treaty scrutiny, but Parliament does not have the authority to compel them to make such an extension. Additionally, the government’s explanatory memoranda are typically provided shortly before intended ratification, further limiting Parliament’s ability to scrutinise a treaty effectively. The absence of established procedures for treaty debates and votes remains a significant deficiency in our constitution which needs to be addressed going forward.
Under CRaG, the House of Commons can delay the ratification of a treaty with Rwanda, while the House of Lords would play an advisory role. If the Commons passes a resolution against ratification within the 21 sitting day period, this will trigger an additional 21-day delay, potentially postponing ratification. However, the government can repeatedly reset this 21-day window by providing a statement justifying why the treaty with Rwanda should be ratified despite the Commons’ objection. In exceptional cases, a minister may ratify a treaty without completing this process, unless either House has passed a resolution opposing ratification. The Lords, on the other hand, cannot block or delay ratification beyond the initial 21-day period, and their objection can be overridden by the government, provided it offers a justifying statement. The Parliament Acts would not be applicable in the treaty ratification process, as it differs from the usual legislative procedure, limiting the Lords’ influence compared to their role in domestic legislation. It is important to note that neither House has, since CRaG was passed, debated or voted on a motion objecting to the ratification of any treaty.
Should a Bill be introduced to implement the UK-Rwanda Treaty, it could potentially allow Parliament, if agreeable, to bypass the usual ratification process under CRaG (for e.g., as in the EU (Withdrawal Agreement) Act 2020). In this scenario, the ratification of the treaty would hinge on the speed of the Bill’s passage through Parliament, rather than on the CRaG process. However, as noted by Arabella Lang, many treaties, including those with significant policy implications, like the prospective UK-Rwanda Treaty, often necessitate only minor modifications to domestic law (e.g. the Illegal Immigration Act), or sometimes none at all. This situation can lead to the ratification of even a substantial treaty with minimal or no Parliamentary involvement.
Conclusion
The Rwanda case is a stark reminder of the delicate balance between executive prerogative in the conduct of foreign affairs and the rule of law. The Supreme Court’s judgment reinforces the rule of law in the face of potential executive overreach. It also prompts a broader discussion on the UK’s approach to asylum processing, its alignment with international law, and human rights standards. This situation is not merely about legal technicalities but also has broader implications for the UK’s constitutional health. The government’s perseverance to ‘stop the boats’ and its pursuit of the Rwanda asylum policy at all costs will likely influence the UK’s future approach to international agreements’ scrutiny and its commitment to human rights, both domestically and internationally.
Many thanks to Michael Gordon, Paul Scott and Arabella Lang for their comments and suggestions.
Theodore Konstadinides, Professor of Law, Essex Law School, University of Essex.
(Suggested citation: T. Konstadinides, ‘Reassessing the UK’s Rwanda Asylum Policy: Tinkering with International Law and the Constitution’, U.K. Const. L. Blog (21st November 2023) (available at https://ukconstitutionallaw.org/))