The Government's Rwanda Argument
Last week a hearing began to consider the agreement between the UK and Rwanda to remove asylum seekers. The legal question before the courts is an interesting one and is perhaps more nuanced than you would think based on media reports but, before we get into that, it is worth reviewing how we got to this point.
14th April 2022: The government announces plans to send people to Rwanda if their claim is found to be inadmissible under the rules.
26th April: The claimants in the case gave notice to the Home Secretary stating that they believe the policy is unlawful.
16th May: A number of people received ‘notices of intent’ saying that they may be sent to Rwanda.
31st May: The Home Office announced that the first flight to Rwanda would depart on 14th June and those due to be on board were informed.
10th June: The High Court gave permission for a judicial review of the policy but refused to make an order that would prohibit the individuals from being sent to Rwanda in the meantime.
13th June: That decision by the High Court was appealed to the Court of Appeal but the appeal was refused.
14th June: In a dramatic last day, the Supreme Court refused permission to appeal but the European Court of Human Rights granted an interim measure, stopping the flight from taking off.
Now we come to the current case and, for the claimants, the argument is relatively straightforward. Under Article 3 of the European Convention on Human Rights, there is a prohibition on torture, inhuman and degrading treatment. Given that the UK has, numerous times over the past couple of years, called for an investigation into torture, extrajudicial killings, and forced disappearances in Rwanda, they are right to be concerned.
There are other arguments as well, based on the irrationality of the decision, whether enough was being done to prevent cases of malaria, and if there had been a breach of the Refugee Convention, however I want to focus on the government argument that is being presented by Lord Pannick.
Again, there are various strands in play but the main thrust comes from Schedule 3, paragraph 17 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
We can see from paragraph 17(c) that there is a legal basis for transferring an asylum seeker to another country so long as their life and liberty is not threatened for discriminatory reasons, and they are not going to be sent on again to a third country.
This is the central crux of the government’s argument. These two conditions in paragraph (c) are subject to “the Secretary of State’s opinion” and so, it follows, that it is not for the court to intervene if the Home Secretary believes that Rwanda meets these criteria.
Unfortunately for Lord Pannick and the government’s legal team, it is far from this simple. The legislation does not make Article 3 of the ECHR go away and there are questions about whether the Home Secretary can reasonably believe that Rwanda is indeed safe given that the UN Refugee Agency has serious doubts about the ability of that country to process the migrants and treat them fairly.
A lot will depend on the Memorandum of Understanding agreed between the UK and Rwanda which contains a number of assurances about the conditions secured for migrants. It is noteworthy that the memorandum explicitly states that the assurances “do not create or confer any right on any individual or third-party” and that get-out clause is something that could be damaging to the government argument.
The policy remains inhumane but the legal arguments on both sides will present a lot for the court to ponder. We may not get a decision from the High Court until October but even then there will no doubt be a series of appeals.
Once again there is no podcast this week as there have been no new judgments from the Supreme Court.
Instead this gave me a chance to work on some new videos. Below are links to my annual updates for my Gumroad courses as well as links to the courses themselves.
Family Law Update // Gumroad Course
Commercial Law Update // Gumroad Course
Employment Law Update // Gumroad Course
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