Image source: Flickr
On Friday 10th May, OHRSS held a panel to discuss the Government’s Rwanda policy. A wide range of issues were covered, from the impact on the UK’s international reputation for upholding the Rule of Law to the unprecedented nature of the Safety of Rwanda (Asylum and Immigration) Act 2024 (hereafter referred to as ‘the Rwanda Act’).
I intend to use this article to consider what lies ahead for the UK’s migration policy. In order to do this, I will consider three key questions will courts and politicians will be forced to reckon with over the coming months.
1) What will the impact of the Irish High Court Case be?
This week, Humphreys J in the High Court of Northern Ireland handed down judgment in a judicial review proceeding brought by the Northern Ireland Human Rights Commission (NIHRC). The NIHRC sought to challenge core provisions of the Illegal Migration Act 2023 (hereafter referred to as ‘the IMA’). To refresh, this is the legislation that laid the groundwork for the Government’s Rwanda policy and sparked the Supreme Court’s finding that Rwanda is an unsafe country in AAA v Home Secretary in November of last year. One provision of the IMA in particular has attracted controversy. That is s.2 which imposes a duty on the Home Secretary to remove a person from the UK if they arrived by irregular means (for example, by small boat). This is subject to certain limitations, for example if a person came directly from an unsafe country.
The NICHR challenged the IMA on the basis that it is incompatible with the Windsor Framework (a political declaration by the EU and the UK to resolve the status of Northern Ireland as part of the UK’s withdrawal from the UK). Significantly, for present purposes, the Windsor Framework committed the UK Government to upholding the guarantee of human rights in Northern Ireland that formed a crucial part of the Belfast/Good Friday Agreement (the 1998 agreement which brought peace and an end to the Troubles).
The judgment held that, among other parts of the Act, s.2 of the IMA would indeed cause a “significant” diminution of asylum seekers’ rights. The court therefore disapplied these sections. Minister for Legal Migration and the Border Tom Pursglove responded to the ruling by stating in the House of Commons that “[t]he Government will take steps to defend their position, including through an appeal.” Therefore, the matter is not closed.
But before we speculate how the judgment will be treated on appeal, it is worth examining the significance of the judgment in its own right. It does not mean that the IMA in invalid in the whole of the UK; the specific aspects of the Windsor Framework that incorporate the Good Friday Agreement only apply to Northern Ireland. However, it is more than a symbolic blow because it reflects the resistance that the courts are exerting on the Government’s seeming disregard for Human Rights. It is significant that a first-instance court (as the High Court is) had the confidence to make such a ruling. Certainly, in the AAA litigation, both the England and Wales High Court and the Court of Appeal deferred to the Government’s finding that Rwanda was safe. It was only in the Supreme Court that the Government’s determination was rejected. Though there is a limit to how useful speculation on one case can be, the judgment in the NICHR may well indicate the particular sensitivity that Northern Irish courts have to any policy that looks like it may imperil the foundations of peace. The Government’s blasé response (i.e., reflexively appealing the case, seemingly without sparing a thought for the merits of it) demonstrates that the UK Government is playing with fire as far as Northern Irish peace is concerned.
2) Will the Government Get Any Flights Off to Rwanda?
The Rwanda policy seems to have acquired outsized political importance for the Government. Conservative hopes for the imminent general election appear to have been pinned to the idea that symbolic deportations to Rwanda will save them from the polls that point towards electoral annihilation. The Government faces numerous hurdles to getting this to happen. They are, in descending order of likelihood of success in stopping the Government, as follows:
Individual Challenges in the Domestic Courts
First, individual challenges to deportations in the UK courts could prove a major headache for the Government. S.4 of the Rwanda Act states that, despite s.2 requiring courts to treat Rwanda as a safe country, individuals will still be able to argue that specific individual circumstantial factors render Rwanda an unsafe country for them. An interesting question is how this provision will be litigated in the courts.
At one end, it may be interpreted very restrictively. Essentially, this would reduce successful s.4 appeals to unique cases such as a Rwandan dissident who had conclusive evidence of unjustified mistreatment by Rwandan authorities. This is a specific argument about a specific threat.
If s.4 is interpreted more leniently, then it may cover scenarios such as an LGBT person arguing that LGBT people are persecuted in Rwanda. This is a specific argument about a general threat.
At its broadest, s.4 may be as wide as to cover the following situation: a person argues that (despite not having any individual characteristics that mark them out for persecution) as a human being, with a sincere interest in having their human rights protected, they are concerned that Rwanda has a poor record on human rights which could lead to their human rights being endangered. This is a general argument about a general threat.
Given the potential for interpretation 3 to invalidate the whole Act, it is unlikely that the courts would interpret Parliament’s intention as being to produce such a section. Therefore, the big question is where on the spectrum around interpretation 1 and 2 the courts will land. Policy Exchange, a right-leaning thinktank, has published a report which expresses its fear that s.4 “is not altogether clear and may prove unstable in practice, which might frustrate speedy removals to Rwanda.” It proposes that “Parliament should amend the clause to spell out more precisely which types of case are intended to fall within its scope.” For example, requiring a pre-existing link to Rwanda or evidence of a real risk that the Rwandan government would directly persecute the individual. This should be read, of course, on the understanding that some Policy Exchange academics may want the UK to shed any deference to the ECHR and that they dislike the fact that s.4 seeks to moderate the extreme nature of the Rwanda Act.
Challenges by the ECtHR
Rule 39 of the ECHR is a temporary measure that the ECtHR can use in exceptional circumstances to issue a temporary injunction, for example to halt a deportation if the court identifies a real risk to the individual. If asylum seekers have exhausted their options in the UK courts, they may turn to this mechanism of the ECtHR to prevent their deportation to Rwanda. S.55 of the Illegal Migration Act grants the Home Secretary power to ignore any injunction. In addition, under s.54, UK courts are required to not issue any delaying judgment while an appeal case is heard. Rishi Sunak controversially confirmed in an LBC interview last month that he would ignore any rule 39 order of the ECtHR to stop a deportation to Rwanda. The UK has, so far, only failed to comply with a rule 39 order – in 2010, British authorities in Iraq transferred two Iraqis to the Iraqi Government in breach of an interim injunction. For the UK to pre-meditate ignoring rule 39, potentially on a regular basis, then this would cause serious international embarrassment for the UK and see its international reputation as an upholder of the Rule of Law trashed. It remains to be seen whether 1) the ECHR will issue any such orders and 2) whether the Government really would ignore them.
Challenges to the Validity of the Rwanda Act
In the 2019 case of Privacy International v Investigatory Powers Tribunal, some members of the Supreme Court, in obiter remarks, considered whether the UK Supreme Court would ever issue a ruling that primary legislation was invalid, if the legislation breached fundamental rights. This technique is described as ‘exceptional circumstances review’ (ECR). Examples raised included a hypothetical scenario where the Government abolished judicial review. 3 out of the 7 justices considered that there could, indeed, be circumstances in which the Supreme Court may indeed do the unthinkable and declare an Act of Parliament invalid. Could the Rwanda Act be the place for this?
Let us consider one provision of the Rwanda Act which has been identified as particularly problematic. It is s.2(1) which requires that “[e]very decision-maker must conclusively treat the Republic of Rwanda as a safe country.” There are two possible interpretation of what s.2(1) is doing. The first is that it is a ‘deeming clause’. The second is that it is a ‘mere statement of fact’. The distinction is important. If it is a deeming clause, then that means that Parliament is explicitly instructing courts to deem Rwanda safe. This implied that Parliament has explicitly countenanced that Rwanda may not be safe. As a corollary of this, it means that Parliament has explicitly contemplated that this policy may violate asylum seekers’ human rights. This looks like the sort of legislation that the Supreme Court considered may be a candidate for ECR.
On the other hand, if s.2(1) is a mere statement of fact, then all it does is reaffirm s.1(2) which finds that Rwanda is safe as a result of the Rwanda treaty signed between the two governments. It, therefore, predicates the continued operation of s.2(1) on the ongoing validity of the Rwanda treaty. This raises the possibility that there may be routes to finding the Rwanda treaty without resorting to the drastic mechanism of ECR. Perhaps the Prime Minister’s ongoing willingness to remain in the Rwanda treaty (in light of evidence of Rwanda’s potential unsafety) could be a target of judicial review. Or even, if evidence that Rwanda is unsafe is presented to a court, then they may find that that evidence renders s.2(1) inoperable. Given that the Supreme Court will likely be extremely reluctant to declare the Rwanda Act to be invalid, it is possible that these alternative routes could be preferable.
3) Are Labour’s Proposals a Better Alternative?
On 10th May, in a speech in Dover, Keir Starmer set out Labour’s alternative plans for illegal immigration. The follow points emerged: expanded cross-border police powers and operations to disrupt people-smugglers; using anti-terror powers against smugglers; and processing the near-100,000 backlog of asylum claims.
The first point to note is that it represents an important shift in tone. The Government’s current policy of deterring asylum seekers treats them as the problem. By contrast, Labour suggests that the criminal gangs exploiting asylum seekers are the problem that must be addressed. It is commendable that Labour intends to end the demonisation of the vulnerable individuals at the heart of illegal immigration. But the criminal gangs who engage in people-smuggling do not emerge in a vacuum; they arise as a direct result of the desperation facing asylum seekers and the non-existence of safe routes to claim asylum. Therefore, it will be incredibly challenging for police operations to compete with this.
The second point to note is the idea of using anti-terrorism powers against the gangs. Labour has suggested granting a Border Security Command anti-terror powers to deal with the smuggling gangs. These powers will include freezing assets of people-smugglers. Before passing judgment on this, the plan will have to be fleshed out in more detail. But I would sound a note of caution in extending anti-terror powers. The proliferation of measures such as Closed Material Proceedings under New Labour raised serious rule of law concerns. It is particularly important that anti-terror powers are not used to steamroll human rights. It seems a little concerning that illegal immigration – an issue that prima facie does not involve terrorism – should be dealt with under a scheme designed for a different problem. An important consideration here is the fact that the line between people-smugglers and asylum seekers can be somewhat blurred. For example, the person steering the boat may be an asylum seeker who is steering in exchange for a reduction in the price of passage or because the person steering became incapacitated. Therefore, it is essential that Labour targets the people behind the smuggling operations (the ‘Moriarty in the web’), not the vulnerable migrants coerced into performing some of the functions of smuggling.
Author: Ben Sheridan
References:
[2024] NIKB 35
[2023] UKSC 42
[2019] UKSC 22