Read me my Rights

Introduction

At all three stages of the court proceedings about the legality of the Rwandan refugee scheme the UK Government (HMG) doggedly argued in the face of compelling evidence to the contrary that Rwanda is a safe country for refugees. In their judgement of 15 November 2023 the Supreme Court (SC) emphatically held that it is not.

Three weeks later HMG switched tack to a new position enshrined in the Safety of Rwanda (Asylum and Immigration) Bill currently being rushed through Parliament. Clause 2(1) of the Bill says “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.” On the face of it this provision negates the Court’s findings of fact. It is simply untrue.

Not so, say HMG. They claim that Rwanda has become a safe country in the 18 months which have elapsed since the court proceedings began. This position is explained in some detail in a document called “Policy Statement – Evidence of the Safety of Rwanda” published by the Home Office on 12 December 2023 (“the Evidence Paper”). In his foreword the Home Secretary Mr Cleverly declares that Rwanda is already a safe country for asylum seekers. According to him the Evidence Paper – “..should be read alongside the treaty with Rwanda laid on 6 December 2023….This will enable Parliament to conclude that the Supreme Court’s judgement has been addressed and that Rwanda is safe for relocations.”

In this article I take a critical look at this position. Three preliminary points come to mind. First, HMG lost badly on the facts. The reasons for holding that Rwanda is unsafe are wide reaching and compelling. It would be surprising if all the problems have already been sorted out.

Second, as 11th October this year HMG’s team of distinguished lawyers were assuring the Supreme Court that Rwanda was a safe country. Are we really to believe that privately HMG had no confidence in this position, that they were quietly working furiously behind the scenes to rectify the huge problems with the whole scheme and that they were able to deliver a complete fix within two months of the court hearing? Third, the Supreme Court findings of fact are a judicial determination by an impartial court based upon tailed evidence from a United Nations agency (UNHCR) with enormous experience and credibility in this field. HMG has adopted the role of judge in its own cause by pronouncing that Rwanda is now a safe country. One might

have at least expected them to canvass the opinion of the UNHCR on this bold claim.

Timing

Time is of the essence for HMG who continue to insist that a lawful scheme, with planes in the air, will be up and flying by spring of this year. But hold on a minute. According to the Evidence Paper the new treaty with Rwanda, a key change which converts Rwanda to a safe destination, has yet to be ratified. Likewise the new Rwandan legislation which is required to implement the necessary changes will take months to enact (assuming it gets through the Rwandan Parliament) – paragraph 20. At paragraph 13 it says –

“HMG and [the Government of Rwanda] have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system.” This strongly implies that the work needed to cure all the legal defects in the scheme has not been completed.

It is patently obvious then that, by its own admission, HMG is misleading the public by making headline claims that Rwanda is already safe.

Evidence – What Evidence?

The evidence which found favour in the Supreme Court came in the form of voluminous affidavits from the UNHCR. The court, applying well established case law on this, emphasised the importance which ought to be attached to that evidence. It said – “[69] …….UNHCR “has unrivalled practical experience of the working of the asylum system in Rwanda through long years of engagement” (para 467). It has been operating permanently in Rwanda since 1993, and had 332 staff there at the time of its evidence in these proceedings.”

Then, at [70], the SC made the telling observation that – “In the circumstances of the present case, however, [the UNHCR] evidence on significant matters of fact is essentially uncontradicted by any cogent evidence to the contrary…”

HMG has made no attempt in the Evidence Paper or elsewhere to answer the obvious questions about how they can match the scope and quality of the UNHCR evidence. The Evidence Paper does not identify any witnesses at all. The December 2023 treaty with Rwanda is repeatedly referred to in the Evidence Paper as an important piece of evidence. In respect of the claim that Rwanda is already a safe country it is nothing of the kind.

HMG’s track record on evidence (properly so called) in this case is unimpressive. Lord Justice Underhill in the Court of Appeal had some uncomplimentary things to say about this. One of

HMG’s main pieces of evidence, which came from a senior Home Office official, comprised responses to the detail of the UNHCR affidavits This was based on information he received from the Government of Rwanda. The judge concluded –

“ [137] ……..Those responses were required at fairly short notice, and I do not underestimate the difficulties in obtaining information remotely. But I have to say that they are not very satisfactory. It is not stated from which departments or other sources the statements in them are derived and they are at several points unclear, lacking in detail or inconsistent.”

It is legitimate to question whether the quality of evidence available to HMG now is good enough to support their claim that all is now well with the Rwandan scheme.

Rwanda’s Human Rights Record

The SC rejected HMG’s submissions that Rwandan human rights abuses, including the genocide of 1994, are irrelevant to the question of whether Rwanda is a safe country for refugees. The court summarised its findings on this as follows –

“ Rwanda has a poor human rights record. In 2021, the UK government criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”. UK government officials have also raised concerns about constraints on media and political freedom [75]-[76].”

In its judgement at [76] the SC said –

“….. Refugees had not been generally ill-treated, but there had been exceptions when they had expressed criticism of the government. The most serious incident occurred in 2018, when the Rwandan police fired live ammunition at refugees protesting over cuts to food rations, killing at least 12 people. As the Lord Chief Justice noted in the present case (para 511), there remain “profound human rights concerns.”

The Evidence Paper has a lengthy section (paragraphs 33 to 47) which discusses Rwanda’s human rights record. There is nothing in this which was not or could not have been said by HMG in the recent English court proceedings. There is nothing which points to any material changes or developments in the last 18 months which could alter the SC assessment on this. There are several references to new arrangements and undertakings from the Rwandan Government contained in the new treaty. In relation to these HMG fails to acknowledge that the historic human rights abuses in Rwanda have occurred during a period in time in which that country was a party to several international agreements (referred to in the Evidence Paper) which were

supposed to prevent those abuses. They fail to acknowledge the importance of the SC’s finding that Rwandan assurances of any kind are apt to be unreliable – see below.

Finally, HMG fails to acknowledge the importance of their own assessment in 2021 of Rwandan abuses referred to above. The Evidence Paper is extremely unconvincing on this important issue.

Structural Defects in the Rwandan Scheme

This is the most significant and enduring reason given by the SC for its finding that the scheme is unlawful. It summarised the position as follows –

“UNHCR’s evidence is that there are serious and systematic defects in Rwanda’s procedures and institutions for processing asylum claims.”

The UNHCR evidence on this was detailed and damning. HMG offered nothing in court to contradict it. But now, according to the EP, all these failings and shortcomings have been resolved. The EP latches on to an observation made by the SC at [105] –

We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up…….. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future,…..”

This needs to be seen in context. According to the UNHCR evidence the Rwandan system is –

“marked by acute unfairness and arbitrariness, some of which is structurally inbuilt; and by serious safeguard and capacity shortfalls, some of which can be remedied only by structural changes and long-term capacity building…”

The SC had this to say on the Rwandan system –

“104……The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring.”

These observations strongly suggest that the problems are so deep-rooted as to be incapable of a quick fix of the sort which, according to the Home Secretary, has already been achieved. The SC are saying in terms that, in addition to a culture change and the provision of adequate resources, Rwanda will have to build up a track record of compliance before it can be said to be a safe country for asylum seekers. There is nothing in the Evidence Paper which suggests that this has been achieved. In the lengthy section of that document which deals with the Rwandan system

(paragraphs 76 to 147) the so-called evidence is all about changes that will be implemented once the necessary Rwandan passes legislation to implement the new treaty.

Rwandan Assurances – Past and Future

The new, as yet unratified (and unimplemented), treaty with Rwanda of 12 December 2023 is at the front and centre of HMG’s claim that Rwanda is now safe for asylum seekers. It is worth remembering that the principal theme of HMG’s losing position in the courts was that, regardless of historical problems, the Rwandan Government had provided formal assurances in the 2022 Agreement with the UK that the British scheme would operate in a manner which is fully compliant with UK domestic and international legal requirements. The Court of Appeal and the SC, again applying well established authorities, rejected this position. At [49] the SC cited with approval a dictum from a previous case – “A state’s failure to fulfil assurances in the past may be a powerful reason to disbelieve that they will be fulfilled in the future ….”

The SC , summarising the third of its reasons for holding that Rwanda is unsafe, said –

“Thirdly, Rwanda has recently failed to comply with an explicit undertaking to comply

with the non-refoulement principle given to Israel in an agreement for the removal of asylum

seekers from Israel to Rwanda which operated between 2013 and 2018 [95]-[100].”

In a passage concerning HMG’s unwarranted reliance on Rwandan assurances the SC (at 53] pointed out that when the Rwandan scheme was still in contemplation officials in the UK Foreign Office advised against prioritising Rwanda as a partner country. This was overridden by advice from Home Office officials –

“on the basis of desk-based research into the Rwandan asylum system, and on what they were told during two short visits to Rwanda in January and March 2022.”

HMG’s decision to proceed with the Rwanda scheme was based on that Home Office advice. The SC said (ibid) that – “possibly because of the pressures under which they had to work, the officials who prepared the [Home Office advice] relied heavily on assurances by the Rwandan government, without close examination of supporting evidence, or consideration of publicly available material which placed some of those assurances in question.”

It is extraordinary that HMG’s latest position as set out in the Evidence Paper relies heavily on the contention that yet another treaty with Rwanda will solve the problems. Yet that is what it says in several places. Is this simply naivety or is it disingenuous?

The successful implementation of the original UK/Rwanda scheme, an agreement entered into in 2022, was entirely reliant on Rwandan assurances as to how the scheme would operate. The SC findings which show that Rwandan could not possibly honour those undertakings is a powerful reason to disbelieve that the assurances given in this new treaty will be honoured. This (taken together with the failed Israeli scheme) strongly undermines the justification for placing any reliance on the latest batch of Rwandan assurances. Surely the authors of the Evidence Paper must realise this. Surely the MPs who vote for this Bill would realise this if they took the trouble to think about it. Perhaps they are so attracted by the political benefits which they see in this scheme that they do not care whether Rwanda is a safe country for refugees or not.