The Safety of Rwanda (Asylum and Immigration Bill 2023)

Narrowing The Challenge In The UK Courts

The question is, will it work and in my view it will, certainly in the UK courts. The bill blocks off delaying removal to Rwanda except in one exceptional circumstance and that is where a person is able to produce convincing evidence that although Rwanda is safe in general, there is some particular characteristic that they have that makes it unsafe for them to be removed to Rwanda. That is the only narrow window that an asylum seeker has.

What is more, any proceedings brought against removal on this basis has to be completed within 30-days and there are restrictions on the court to make interim injunctions to delay the position pending the hearing, which the court is not allowed to do unless there is serious and irrevocable serious harm of sending someone to Rwanda pending the decision. This will be a very high threshold to satisfy and this is why it is arguably the toughest Asylum and Immigration Bill to date because it makes the UK courts do what parliament tells it to.

A Clash With International Law

The position of the Bill in international law is more complex. When the Rwanda Bill is read alongside the new treaty signed with Rwanda it does appear to alleviate the concerns of The Supreme Court as to the safety of asylum seekers sent to Rwanda. There is no breach to international law to the extent that the treaty essentially stops asylum seekers from being sent back to their home countries even if they fail in their asylum claim or decide not to make one. Article 19 of the treaty also makes provision for the resettlement of some of Rwanda's most vulnerable refugees in the UK.

The Rwanda Bill is arguably in breach of the Refugee Convention, the European Convention on Human Rights (ECHR) and the Human Rights Act because it blocks people's access to the courts and does not allow them to argue their case. The Rwanda Bill expressly asks the UK courts to disregard the ECHR to which the UK is a signatory. This will not sit well with many on the left of the Conservative Party and those on the Right would argue that the UK should no longer be a party to Convention. The Right will argue that sooner or later someone will make a claim to the European Court of Human Rights which does not have to pay any attention to domestic legislation when making its decision. However, decisions of the European Court are not binding and this is the position that Rishi Sunak proposes. However, this could put us on a collision course with the Council of Europe and the EU more widely because it will put us in breach of our obligations under the EU-UK Cooperation Agreement signed at the time of Brexit.

What Next For The Rwanda Bill

The Right of the Conservative Party are seeking further amendments and the Government needs to ensure that Rwanda does not walk away from the deal, which Rwanda will do so if the rights of an asylum seeker to take a case to the European Court are removed. The Government does not have much room to manoeuvre. One possible concession that could be made to the right of the conservative party is to add a definition clause to the Bill which narrows the definition of when an asylum seeker can use the 'suffer irrevocable harm' argument.

Having passed the first reading in the House of Commons the Bill will go to the House of Lords who will make amendments which the Government will strike out and reinstate the original provisions when it returns back to the Commons. The right of the Conservative party will likely concede particularly if the 'definition clause' mentioned above is added and to prevent an implosion of the Conservative Party in an election year. In the second reading in the Lords, they will also to concede.