A new research note published by Policy Exchange today recommends that the House of Commons support the Safety of Rwanda (Asylum and Migration) Bill when it receives its second reading tomorrow (Tuesday 12 December).

The Bill is described as an “intelligent and broadly effective response to the Supreme Court’s recent Rwanda judgment”.  The Bill does not reject that judgment, or disrespect the Supreme Court in any way, but instead gives effect to Parliament’s judgement that the new Rwanda Treaty addresses the concerns raised by the Court. 

The Bill will work to stop further argument in the courts that removals to Rwanda are unlawful because there is a risk that Rwanda may wrongly send a person on to an unsafe third country.  This is an important legal change. 

However, the Bill as it stands does not adequately anticipate and address the risk of other types of litigation, which may challenge the premises of the Bill and/or frustrate its implementation in practice.  The Bill can and should be amended to address the relevant risks:

• The Bill does not disapply section 4 of the Human Rights Act 1998 (HRA).  What this means is that the Bill’s opponents will be able to apply to the court for a declaration that the legislation is incompatible with Convention rights.  This will provide an opportunity for the courts to question Parliament’s judgement that the Rwanda Treaty changes the relevant facts and that Rwanda is now safe.  This would weaken the UK’s position in relation to the European Court of Human Rights in due course.  In addition, a declaration of incompatibility in this context could not lightly be ignored.  It would be very significant in political terms and would make continuing with the Rwanda plan very difficult.  The Bill should be amended to disapply section 4 of the HRA.

• The Bill should also be amended to disapply section 10 of the HRA, which lets a Minister amend legislation by order, if or when a UK court makes a declaration of incompatibility or when a decision of the European Court of Human Rights suggests that UK legislation is incompatible with the ECHR.  If Parliament enacts the new Bill, it should not be vulnerable to being set aside or fundamentally changed by ministerial say-so.

• Clause 4 of the Bill aims to make an exception to the general rule that decision-makers, including courts, must treat Rwanda as a safe country.  The clause imposes a high threshold before a particular person can establish that Rwanda is for him or her an unsafe country, but risks remain.  Clause 4(1) draws a distinction between general arguments about whether Rwanda is safe and the particular individual circumstances of the person in question.  The distinction is not altogether clear and may prove unstable in practice, which might frustrate speedy removals to Rwanda.  Parliament should amend the clause to spell out more precisely which types of case are intended to fall within its scope.  The paper recommends requiring the particular individual circumstances to involve a pre-existing connection to Rwanda, or to raise a real risk that the Rwandan government itself would persecute the person in question.

The amendments that this paper proposes would strengthen the Bill.  They can be adopted without placing the UK in breach of its international legal obligations.  They would not somehow provoke the UK courts to abandon parliamentary sovereignty, which is the bedrock of the constitution.  The amendments would not require Rwanda somehow to be complicit in the breach of anyone’s human rights and therefore it seems unlikely that Rwanda would resile from the Treaty because the Bill is amended in this way.

Hon Alexander Downer, former Foreign Minister of Australia and Chairman of Trustees at Policy Exchange:

“This paper makes a powerful argument that the Bill is a legitimate and effective response to the Supreme Court’s recent judgment.  It deserves Parliament’s support.  The Bill builds on the UK’s new treaty with Rwanda, which meets the Supreme Court’s concerns about the risk that Rwandan officials might make mistakes in processing asylum claims and wrongly send a genuine refugee back to an unsafe country. The Bill goes a long way towards making it lawful to promptly remove asylum-seekers to Rwanda in compliance with international law. 

“But the paper also points out that the Bill does not fully address the risk of further litigation, which may challenge the foundations of the Rwanda plan or may frustrate its operation in practice.  These are not insurmountable problems.  They can be addressed by way of the amendments that this paper proposes, which promise to make the Bill more effective in securing its important objectives.  If the Rwanda scheme can be made to work, and if it can be scaled up, then there is no doubt that it will stop the practice of migrants paying people smugglers to make hazardous journeys across the English Channel. Potential migrants will be faced with a choice of either remaining in France or being sent to Rwanda. But the one choice they won’t have is to reside in the UK.

“If the scheme is successful, it will restore public support for immigration and detoxify the politics of illegal immigration. This has been the Australian experience. When offshore processing on Nauru was first introduced by the Australian government, it was furiously opposed by the official opposition Labour Party. Today, only the extremist Green party opposes offshore processing – there is bipartisan support between the two major political parties for this policy. If the Rwanda scheme continues to be frustrated by the courts and illegal migration continues, then this toxic political issue will continue to fuel public anxiety and concern. The consequences in Europe are there for all to see with the rise of extremist political movements. To avoid this plight, the UK needs to make sure that the Rwanda plan is legally watertight. This outstanding paper by three authors who are amongst the most qualified legal commentators in the country is a significant contribution to the debate about how to improve this most important of Bills.” 

Commenting, author of the research note, Professor Richard Ekins KC (Hon), Head of Policy Exchange’s Judicial Power Project said:

“The Safety of Rwanda (Asylum and Migration) Bill is an intelligent and effective response to the Supreme Court’s recent Rwanda judgment, which needs to be enacted if removals to Rwanda are to go ahead.  It is entirely legitimate for Parliament to conclude that the new Treaty changes the facts and therefore to provide that Rwanda must be treated as a safe country.  However, amendments are still needed, as our new Policy Exchange paper highlights.”