22/02/2024, by Bamara Prosper
On November 15th, 2023, the United Kingdom’s Supreme Court declared unlawful the UK/Rwanda asylum plan, and stressed that Rwanda is not a safe third country where asylum seekers could be relocated to. This decision was taken in a unanimous judgment of five Supreme Court judges who concurred with the Court of Appeal that there are substantial grounds for believing that if asylum seekers are removed to Rwanda they would face serious risks of ill-treatment due to a high likelihood of refoulement. The Supreme Court drew attention on Rwanda poor Human Rights Records and expressed deep concerns about the imperfect understanding, by Rwanda government employees, of refugee matters-related international texts such as the International Refugee Convention. This decision of the supreme court to dismiss UK government’s plan to remove refugees to Rwanda was broadly cheered around the world and was particularly welcome by UK Catholic Church institutions and respected personalities such as Bishop Paul McAleenan of the Episcopal Conference, Aisha Dodwell of England & Wales Catholic Charity Agency CAFOD, Sarah Teather of the Jesuit Refugee Service JRS…
- Bishops’ Conference, CAFOD Charity Agency, and Jesuit Refugee Service – JRS
“Greatly relieved” said Bishop Paul McAleenan, the lead bishop for migrants and refugees for the catholic Episcopal Conferencel in UK, according to the Newspaper CRUX of November 16th, 2023. He affirmed the Catholic Church will continue to advocate for an immigration system that places the human person at the center, qualifying the UK plan to send refugees to Rwanda as a policy that ignores the innate human dignity of those seeking sanctuary. In an interview by the Official News Portal of the Holy See (Vatican News), Aisha Dodwell, the Head of Campaigns at the Catholic Agency for Overseas Development of England and Wales (CAFOD) expressed great satisfaction with the UK Supreme Court unanimous judgment of November 15th, 2023 against the plan to remove asylum seekers to Rwanda. Her reaction was spontaneous “This is a good ruling. It shows us that not only is the government’s Rwanda plan immoral, it’s also unlawful and unworkable. Really, it’s time for the plan to be scrapped…” In unambiguous reaction, Sarah Teather, director of Jesuit Refugee Service in UK (JRS), said her organization had always opposed the “cruel and unworkable” policy of removing asylum seekers to Rwanda. “Forcibly removing people to Rwanda would achieve nothing except to violate their basic rights, trash the UK’s reputation on the international stage, and exacerbate fear and uncertainty among those seeking sanctuary here,” she said in a statement. She emphasised that the Jesuit Refugee Service – JRS of the UK has directly supported more than twenty people, including survivors of torture, facing removal to Rwanda; she explained that the threat of removal is felt far more widely: “Through our accompaniment of refugees, we understand the human impact of this policy and the profound dangers it presents to people in search of safety.” These declarations by one of the highest representatives of UK Catholic church and by high level officials of prominent UK Catholic Church Charity and Humanitarian groups such as CAFOD and JRS, leave no doubt that the Catholic Church is very much concerned with the extent to which the Human Rights are respected by countries across the globe. In view of the way Catholic groups and high personalities including members of the Bishop’s Conference have been energetically engaged in advocating against violations of the refugee rights in the UK, and considering the strong manner in which they supported the supreme court ruling against the UK government’s Rwanda plan, one wonders why Rwanda Catholic Church bishops and affiliated institutions were/are not felt in this humanitarian battle! Why do they opt to stay silent and passive when the lives of refugees are being turned into pawns of immoral and inhumane financial and political gambling?
- Background
Following increasing numbers of illegal migrant to the UK from France and elsewhere, a new strategy was proposed, as allowed by the existing EU and UK legislation, to remove asylum seekers to a safe third country where their claims would be examined and decided upon in compliance with UK standards for similar refugee status applications. The UK Secretary of State in charge of refugee matters explored different candidates that would qualify as safe third countries, and Rwanda featured among the potential destination for asylum seekers from UK. This means that the UK government judged Rwanda as a safe third country able to receive refugees and to respect UK standards of handling refugee claims, a move that created controversy and objections from human rights institutions and activists all over the world. The legal framework of this policy is based on paragraphs 345A to 345D of the Immigration Rules (as then in force), in accordance with section 3 of the Immigration Act 1971. As highlighted in the Supreme Court ruling, the policy is given effect under the above paragraphs for asylum claims made on or before 27 June 2022, including those with which the current proceedings are concerned. But in principle, the plan concerns anyone having entered the UK illegally after 1 January 2022. Consistent with the indicated paragraphs, the policy states that “an asylum claim can be ruled inadmissible, with the consequence that the merits of the claim need not be considered, where the asylum seeker had the opportunity to apply for asylum in a safe third country but did not do so. If it is decided that an asylum claim is inadmissible, the asylum seeker can be removed either to the safe third country where the opportunity to make the asylum claim arose, if that country is willing to accept the asylum seeker, or to any other safe third country which agrees to accept him or her. The policy proceeds on the basis that the asylum seekers who are to be removed to Rwanda had the opportunity to apply for asylum in a safe third country (in most cases, France) but did not do so, and that Rwanda is another safe third country which has agreed to accept them, and to which they can therefore be removed.” The UK government’s plan as announced in April 2022 was to first engage in a 5 year trial agreement with Rwanda to see how the plan unfolds while monitoring all the steps for a good evaluation that would inform future decisions. During this initial phase, a certain number of asylum seekers were supposed to be relocated to Rwanda to file asylum request there. They could then be granted refugee status to stay in Rwanda or apply a local settlement there on other grounds, or request to be resettled in another “safe third country” for asylum seeking purposes. Another possibility was for Rwanda to ask the UK to take in some of its most vulnerable refugees. As a first move towards the project’s implementation, the UK delivered an initial payment £140m to the Rwandan government, before any asylum seeker could be sent there. The UK’s objective in initiating this policy was to attempt to deter people from undertaking risky journeys to make their way to the UK through clandestine, illegal, dangerous or unnecessary ways, such as crossing on small boats across the English Channel. The highest number of such illegal migrants who used this route since records began, more than 45,700 people, was reached in 2022. Since the policy to send asylum seekers to Rwanda was announced, an increasing number of voices, including the concerned refugees and Charity organisations as well as human rights activists, have reacted against the project and threatened to take the case to the court. The High Court of London was the first to handle the case in December 2022, and it ruled that UK government’s Rwanda asylum plan breached neither domestic laws nor the United Nations Refugee Convention. This Court granted permission to asylum-seekers in the UK and charities supporting them to appeal against this ruling that permitted the UK government to send asylum-seekers to Rwanda lawful. The permission to appeal was granted after the High Court ruling was met with great opposition, and the NGO Asylum Aid, a charity organization that offers legal advice and support to asylum seekers in the UK, applied for permission to challenge the policy at the Court of Appeal. Such a permission to appeal against the High Court ruling meant that deportation flights would be suspended. At the Court of Appeal, a dismissal decision was taken on June 29th, 2023, after a split two-to-one ruling of three Court of Appeal judges announced that Rwanda could not be considered a “safe third country” where migrants could be sent. However, the judges pointed out that a policy of deporting asylum seekers to another country was not in itself illegal. The conservative government immediately decided to challenge this ruling at the U.K. Supreme Court, knowing it had only until July 6th to lodge the appeal.
- The Supreme Court Judgment
3.1 Paragraph 345Bi
The concept of “a safe third country” was the first matter of controversy to be clarified by the Supreme Court. Paragraph 345B of the Immigration Rules defines a safe third country in the following terms: “A country is a safe third country for a particular applicant, if: (i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country; (ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention; (iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and (iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.” A probing into the matter with reference to paragraph 345Bi leads to a great deal of evidence that Rwanda is not a country that respect the fundamental human rights as stipulated in the Universal Declaration of Human Rights (UDHR), signed on 10 December 1948. The fear that Rwanda may not be a safe third country from the human rights respect point of view is bolstered by a number of reports from credible sources. For instance, the recent Human Rights Watch’s report on Rwanda sheds light on the human rights situation prevailing in Rwanda. This report titled “Join Us or Die” and released on October 10th, 2023 tells that in order to deal with criticism and suppress voices of real or imaginary critics, Kagamé’s RPF-led regime, on power since 1994 to date, has always used brutal and violent means such as extrajudicial killings, enforced disappearances, torture, political prosecutions, and unlawful detention, as well as threats, intimidation, harassment, and physical surveillance. Such measures have even been exported outside the country where refugees and asylum seekers are hunted down for killing by the government of Rwanda. Apart from the Human Rights Watch, other international institutions and media have alerted the international community about Rwanda government’s local and international intimidation acts and assassination practice, through documentaries, annual reports, etc. Examples of such internationally credible institutions are: the US State Department, Canada Broadcasting Corporation-CBC, Australian Broadcasting Corporation-ABC, British Broadcasting Corporation-BBC, Reporters without Borders, Amnesty international… HRW’s report is corroborated by UK’s declaration at the Universal United Nations Human Rights Council’s Periodic Review of Rwanda in Geneva in January 2021, where the United Kingdom government criticized Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”, in addition to confirmed serious incidents such as the 2018 incident where Rwanda police used live ammunitions to kill over a dozen Congolese refugees who protested over cuts to food rations.
3.2 Paragraphs 345Bii & 345Biii
Paragraphs 345Bii and 345iii address the non-refoulement obligation. Experience with Israeli refugees previously sent to Rwanda reveals an unacceptable violation of the non-refoulement rights that resulted in a dramatic failure of the Israel/Rwanda agreement. UK ministers were informed by the Foreign, Commonwealth & Development Office (FCDO) officials, in April 2013, that Rwanda had participated in a programme with Israel from 2013 to 2018 under which asylum seekers were given cash incentives to leave Israel voluntarily and the option to settle in Uganda and Rwanda; but those who were transferred to Rwanda were not given the right to settle and were at risk of refoulement. Israeli Supreme Court ruled that the programme was unlawful in April 2018. The UK Supreme Court disagreed with the Secretary of State’s statement that the Israel/Rwanda agreement was irrelevant. In fact, the different arrangement from the UK/Rwanda agreement (MEDP), entered into some years earlier, didn’t clarify whether the government of Rwanda could be relied on or not concerning compliance with its assurances under the MEDP. The Supreme Courts’ objection was formulated in the following terms “We do not agree that it (Israel/Rwanda agreement) is irrelevant. Although the terms of the agreement may well have been different from the MEDP, and it ceased to operate five years ago, it is nonetheless a recent agreement for the transfer of asylum seekers for processing in Rwanda, under which the Rwandan government undertook to comply with the principle of non-refoulement. Its apparent failure to fulfil that undertaking is relevant to an assessment of the risk of refoulement under the arrangements entered into with the government of the United Kingdom”.
3.4 Paragraphs 345Biv
Paragraph 345Biv describes the right for refugee to have a fair evaluation of his/her refugee application in accordance with the 1951 UN Refugee Convention, and to be conveniently protected in case of successful application consistent with the 1951 Convention. Available information reveals a certain culture (by Rwanda officials) of inadequate understanding of Rwanda’s obligations under the Refugee Convention. Also noticed in Rwanda is an unjustified tendency to dismiss applications from the Middle East and Afghanistan applicants. As a matter of fact, contrary to the Secretary of State’s assumption that there is nothing telling that Rwanda will not abide to its commitments as set out in the MEDP, the above observations raise serious doubts that Rwanda will be able to respect the stipulated commitment. The fact that employees of Rwanda institutions in charge of asylum related matters are found to lack a good understanding of Rwanda’s obligations under the Refugee Convention (insufficient understanding of the Refugee Convention text itself) is a very serious reason to suspect Rwanda will not be able to fulfill its obligations as stipulated in UK/Rwanda MEDP, unless necessary changes are made to Rwanda’s asylum procedures and practice before any undertaking to send asylum seekers there. Of note is that such necessary changes cannot be straightforward since they are understood to involve a change of attitudes, effective training, an effective monitoring system, and enough time to assess progress.
3.2 Rwanda asylum system through the lens of UNHCR
In the eyes of UNHCR, Rwanda asylum system is flawed at many levels. It’s shocking to realize that notwithstanding the fact that Rwanda maintains an open door policy for refugees fleeing conflicts in neighboring countries, these refugees remain in Rwanda without going through any formal asylum determination process, and only a tiny of individual asylum claims are processed by national authorities. For instance, the Rwandan government indicated that a total of 152 cases have been decided in a four year period, between 2019 and 2022. Of note is that Rwandan authorities have little to no experience with asylum applications from most of the countries from which asylum claimants in the United Kingdom commonly come, such as Albania, Iran, Iraq, Pakistan, Syria and Vietnam. Regarding internal legislation in Rwanda, UK Secretary of State pointed out that Rwanda’s principal legislation concerning refugees, Law No 13/2014 relating to Refugees, has been described by UNHCR as fully compliant with international standards, but serious concerns expressed by UNHCR relate not to the text of the legislation but to how the system operates in practice, since there is a conspicuous lack of compliance with the law and a worrying lack of transparency. The general picture of the Rwandan asylum procedure is the following: “The initial stage in the process is the responsibility of the Directorate General of Immigration and Emigration in Rwanda (“the DGIE”), which is an entity within the National Intelligence and Security Service. Under Rwandan law, its role is to undertake the necessary preparation of asylum claims for determination by another body, the Refugee Status Determination Committee (“the RSDC”). The main function of the DGIE under the law is to conduct interviews with asylum claimants.” According to the law, one of the DGIE’s roles is to conduct interviews with asylum claimants, with no authorization to reject a claim. Rejection is the responsibility of the RSDC. However, it has been observed that the DGIE summarily rejected 8%, and UNHCR’s perception is that the true number of rejections by the DGIE is likely to be higher. Besides, no written reasons for rejection are given and there is no right of appeal (since the law makes provision for appeals only against decisions taken by the RSDC). More shocking, the RDSC decisions are not motivated or show very perfunctory or formulaic motivations such as “Refugee Status requested was not granted because you don’t meet the eligibility criteria, and the reasons you provided during the interview were not pertinent”. Failure to provide reasoned decisions makes it difficult to formulate an appeal against the decisions since the basis on which the claim was rejected is unknown, which makes all possible appeal processes doomed to failure. Worth mentioning is that the law provides for the right to an ultimate final appeal to the High Court with the possibility of a further appeal to appellate courts, but there is no known case where this ever happened. This means that the system in question is untested, and it is unlikely that the judiciary will have the courage to find against the Rwandan government’s intelligence network involved in evaluations of asylum requests. UNHCR’s evidence reveals 100% rejection rates at the Rwandan RSDC level during 2020-2022 for nationals of Afghanistan, Syria and Yemen, from which asylum seekers to be removed from the United Kingdom to Rwanda may well emanate. By comparison, Home Office statistics for the same period show that asylum claims in the United Kingdom were granted in 74% of cases from Afghanistan, 98% of cases from Syria, and 40% of cases from Yemen. UNHCR also produced evidence that a number of recent asylum seekers from a non-African country with close bilateral relations with Rwanda were denied access by the DGIE to the Rwandan asylum system. UNHCR has further highlighted Rwanda’s practice of refoulement, by mentioning a number of cases of threatened refoulement by Rwanda government and by reporting six recent cases of expulsion of persons who claimed asylum on arrival at Kigali airport, some of which resulted in refoulement or would have done so had the UNHCR not intervened. UNHCR expressed concerns regarding a surprisingly generalized inadequacy of the Rwandan government’s understanding of the requirements of refugee law. For example, its response to UNHCR’s evidence demonstrates a misunderstanding of the meaning of the concept of refoulement. Finally, UNHCR indicated that the Rwandan officials who participated in training which it had organised had very limited or no understanding of how to assess refugee status. Instead of accepting and requesting help and time to grasp all the concepts stipulated in refugee related international texts including the 1951 Convention, Rwanda government attempted to resort to a method known as “GUTEKINIKA” in the Rwandan political jargon (meaning the art of lying, deceiving and falsifying) by telling the UK Home Office officials that Rwanda officials had received training from the International Organization for Migration, a claim debunked by UNHCR with written evidence from that organisation which expressly denied having provided any such a training to Rwandan officials. At the end, the final unanimous decision taken by five judges of the Supreme Court stated that the Court of Appeal was correct to conclude that the plan to remove refugees to Rwanda is definitely unlawful.
Conclusion
Five judges of the Supreme Court unanimously ruled that “we conclude that the Court of Appeal was correct to reverse the decision of the Divisional Court, and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. It was accordingly correct to hold that the Secretary of State’s policy is unlawful. The Secretary of State’s appeal is therefore dismissed. A few moments later, Roman Catholic Bishop Paul McAleenan, shared his feelings of total satisfaction “Whilst today’s Supreme Court ruling is to be welcomed, we will continue to advocate for an immigration system that places the human person at its centre. Refugees are human beings made in the image and likeness of God, not a political problem to be solved. Forcibly removing people to Rwanda would achieve nothing except to violate their basic rights, trash the UK’s reputation on the international stage… It is important to recognise the wonderful work of Catholic charities and civil society organisations that do so much to help migrants and refugees when they come to the UK. We will continue to pray for those who are on the move, as well as for the government that it will respect this ruling and respond to the needs of migrants and asylum seekers in a way that fully upholds their human dignity.”
