Rwanda Plan: breakdown of the judgment

Faheem Ashraf & Georgia Lord – 21 Feb 2023

This article will summarise the key facts of the recent High Court ruling on the UK government’s policy of sending unsuccessful asylum seekers to Rwanda, the critiques of the ruling as well as the implications the ruling will have on the future of immigration control and human rights. This article will also explore whether the Rwanda policy is an effective deterrent against small boat crossings and an effective use of the public purse and resources. 

In December 2022, the UK High Court passed an influential and controversial judgment. In the judgment, the Court held that the government’s much criticised policy to send unsuccessful asylum seekers to Rwanda is lawful. The case at the Court involved eight asylum seekers from Iraq, Iran, Syria, Vietnam, Albania and Sudan who argued that their asylum requests should be reviewed in the UK and not in Rwanda, reasoning that their claims would not be sufficiently examined in the country. They also argued that the Home Secretary’s legal analysis, which surmised that the East-Central African country was a “safe country”, was flawed. Asylum seekers highlighted that if sent to Rwanda, they would face maltreatment, which would amount to a human rights violation, and contended that the UK government sharing their data with the Rwandan authorities before their claims had been concluded was unlawful. Other arguments contested the fairness of government procedure, highlighting how it punishes asylum seeking (which is against international law) and discriminates against young male asylum seekers from countries (except Ukraine). The case saw interventions from NGOs, one border force officers’ union as well as the UN High Commissioner for Refugees (UNHCR).

The Court disagreed with the asylum seekers, finding that the Home Secretary had taken reasonable steps in her analysis to conclude that Rwanda is a “safe country”. The Court also maintained this despite human rights abuses against dissidents and political asylum seekers, as highlighted by the asylum seekers’ legal team. Furthermore, it is permissible for the Home Office to contact Rwandan authorities regarding an asylum application before its conclusion and lawful to share data before an application is settled, if reasoned in the name of public interest. Against the grain of public opinion, the Court found that any indirect discrimination against male asylum seekers of certain nationalities is justified. The judgment also found that the process used for the Rwanda decisions is fair and that there is no need for asylum seekers to have legal representation during the process or legal advice before their screening interview. The Court concluded that the policy does not punish asylum seekers.

Since the UK is party to the 1951 Refugee Convention, has the High Court erred in its ruling that the Rwanda policy does not violate Article 31 (non-penalty for “illegal” entry) and Article 33 (non-refoulement) of the Convention? Arguably, yes. It is baffling that the Court considered credible human rights reports (from Human Rights Watch and the General Human Rights in Rwanda) to be irrelevant to its analysis of Rwanda as a safe country. These reports specifically highlight the treatment of protesting asylum seekers and political dissidents respectively. Sending those fleeing persecution to a country with an unsatisfactory human rights record does little but extend their suffering. Furthermore, the government’s travel advice on Rwanda states that LGBTQIA+ people suffer discrimination and abuse, “including from local authorities”, and that there is a lack of legal protection for LGBTQIA+ people. Enver Solomon (Chief Executive of the Refugee Council) wrote in The Guardian that the policy “takes punishment of fellow human beings to a new level”.

This case shows that the “depressing and distressing” policy is here to stay (unless there is success on the partial appeal at the Court of Appeal). It is also a stark reminder of the state of human rights post-Brexit, as the Home Office does not need to do a thorough examination of the asylum seekers’ claims, since EU law no longer applies to the UK. This fits into the backdrop of a wider regression of human rights which have been upheld by the judiciary when challenged (e.g: the deprivation of citizenship in the Shamima Begum case). Given that the government is considering leaving the European Convention on Human Rights, the precedent set by this case will play a more significant role in future deportations to Rwanda, as asylum seekers will not have the protection of the ECHR to challenge any Home Office decision. 

Until then, the next steps will be the Court of Appeal, with no flights commencing whilst appeals are underway, and continued advocacy by Asylum NGOs and legal teams on an individual case by case basis. The operation and impact of the Rwanda Plan still remains to be seen, however the Australian offshoring model provides the UK with a cautionary tale: it did not intercept the smuggling business model, slow migration numbers nor protect refugees from criminal gangs. It also created the highest rates of mental illness amongst detainees ever recorded.

To those who oppose the Rwanda Plan, the silver lining remains the huge undertaking of an offshoring scheme. The Home Office will need to make “legally defensible decisions in individual cases” to deport anyone, and UK 2021 figures show only 113 asylum seekers were successfully removed. Leading immigration barrister Colin Yeo stresses the history of abandoned Home Office schemes and suggests the plan serves more as a “distraction from the asylum backlog and other issues”. On the other side of the process, Rwanda has only agreed to accept a few hundred asylum seekers per year, which begs the question – with £140 million already banked, could its government be relying on a failure within the chain of command? In any case, Rwanda has no need to overextend its end of the bargain. 

Set against a historical low in successful deportations, the Rwanda Plan reveals more than a haemorrhage of time and public resources, but a UK government with little to offer. Instead of building an accessible asylum system with opportunities for refugee self-reliance, the ‘out of sight’ mentality remains the UK’s preferred option. With maze-like bureaucracy and a huge asylum backlog, is the Home Office even benefitting from further unworkable proposals? And most importantly – is offshoring our problems really a sustainable approach?