Sharmistha Michaels explores the legal controversy over the UK government outsourcing asylum seekers to Rwanda in her article for the Solicitors Journal
King Charles’ Coronation Ceremony in May promises to celebrate modern multicultural Britain with refugees at the heart of it. Yet it seems at odds with the threat that hangs over migrants following the Home Secretary’s announcement on 14 April 2022 of a new migration plan to deport Asylum seekers to Rwanda.
Deportation of asylum seekers to Rwanda has been a controversial issue, with its critics arguing that the policy to remove the person who has made the asylum claim to a “safe third country” as inhumane and violative of international law.
Paragraphs 345A- D of the Immigration Rules set out conditions that must be met, for the Home Secretary to decide whether an asylum claim is inadmissible in the UK and whether she can remove them to a ‘safe’ third country.
In simple terms, a claim would be inadmissible if the Home Office Decision maker can say the asylum seeker could have claimed asylum in a third country and chose not to do so. Where their claim falls to be inadmissible, the Secretary of State can remove that person either to the safe third country, they could have made their asylum claim in or any other safe country that is willing to accept the asylum seeker.
Under the Migration and Economic Development Partnership (‘the MEDP’) Rwanda is considered a safe country. The purpose of this policy, the Home Office says, is to encourage asylum seekers to claim asylum in the first safe country they reach and to deter them from making dangerous journeys to the UK facilitated by people smugglers on small boats. This policy excludes certain groups including families, unaccompanied asylum-seeking children.
On 19 December 2022 in AAA and others v Secretary of State for the Home Department  EWHC 3230 (Admin) in a judgment handed down by Lord Justice Lewis and Mr Justice Swift the High Court ruled the government’s policy to deport asylum seekers was ‘lawful’ and did not breach the UN’s Refugee Convention on Human Rights laws.
This was in response to a judicial review application brought in June 2022, by human rights groups challenging the legality of the deportation of eight unnamed asylum seekers from Syria Iran, Iraq, Vietnam and Albania. In the ruling the two judges found the policy lawful, dismissing the application to try to prevent the policy going ahead.
However, they found flaws in the Home Office Decision making process in relation to the asylum seekers, Lord Justice Swift added that the Home Secretary “has not properly considered the “eight individual cases” quashing those decisions and referred the cases back for fresh consideration.
This decision came six months after the first deportation flight that was due to take off with 37 asylum seekers from the UK to Rwanda. So far, no asylum seeker has been deported under this policy due to an intervention by the European Court of Human Rights.
On the 16 January 2023, the High Court ruled that those individual asylum seekers facing removal could appeal to the Court of Appeal and ask the Court of Appeal to consider whether Rwanda’s assurances under the agreement with the UK amounted to sufficient guarantees of safe and fair treatment and whether the High Court was wrong to decide the Rwanda removal policy was not “systematically unfair.”
The scheme seems flawed in many ways as a decision can be made that a person is eligible for removal to a safe third country without proper consideration of their individual circumstances. This can include not considering the person's history of persecution, trauma, and other vulnerabilities.
Under this scheme, once an asylum seeker is sent to Rwanda, it is envisaged that they will be processed under Rwanda’s legal system and will not be able to return to the UK. They will either be granted status as refugees or removed to their country of origin or simply allowed to overstay.
Critics of the scheme, despite government assurances, say Rwanda’s asylum system is not fully developed and is believed to be under-resourced. Asylum seekers may therefore not have access to the same protections and rights they would receive in other countries and decisions could take a long time to process.
The UN High Commissioner has expressed serious concerns about the potential for lack of access to legal representation, interpreters, as well as the lack of access to housing, healthcare, and other basic needs and potential discrimination against LGBTQIA+ persons. Furthermore, some asylum seekers may be at risk of being returned to the country they originally fled, which can put them in danger of persecution or other human rights abuses.
This policy of third country processing of asylum claims is not new and countries such as Israel and Australia have used offshoring policies for asylum seekers. In Australia for example the offshoring policy similarly targets those who arrive illegally by boat with the same aim, to discourage people smugglers.
These people are transferred to offshore detention centres for their claims to be processed in Papua New Guinea’s Manus Island and the South Pacific Island nation of Nauru. This offshoring policy has faced strong criticism from the UN and aid groups due to the conditions in the detention centres and the alleged abuses faced by those detained.
Israel’s offshoring policy was stopped following legal challenge and criticism by Israel’s Supreme court, where several thousand asylum seekers were sent to Rwanda and Uganda. Although Israel’s scheme was optional the alternative was not attractive i.e., a failed asylum seeker would be sent back to the country they had fled.
Deportation to Rwanda of asylum seekers is problematic for many reasons. The government has said the “bold new plans” will deter criminal gangs people smuggling and stop the exploitation of asylum seekers. As the Scottish Refugee Council noted:
“that this government is choosing to model its asylum policy on Australia’s failed system mired by well documented serious human rights abuses, is shocking.”
What we see is a government abdicating responsibility onto another country, in this case a country which has a history of political repression, and a government that can be quick to suppress dissent potentially putting asylum seekers who are deported there at risk of arbitrary detention, torture, or other forms of abuse. Critics also suggest the scheme breaches the principle of refoulement which says that no migrant can be returned to a country where they would face irreparable harm.
It is not clear when the deportation flights to Rwanda will begin as the plan is subject to an injunction by the European Court of Human Rights (ECHR) preventing deportations until the legal process had been exhausted. Whenever they do restart the flights, I suspect that they will be subject to challenge for a long time to come.
It isn’t too late for the Government to scrap this policy, as so aptly put by the journalist Michaela Wong in The Guardian:
“High court judges only tell governments what they are allowed to do, not what they should do.”
It remains to be seen how this policy will operate in practice and what will happen when individual claims on behalf of asylum seekers continue to delay the government’s plans to ship people off to Rwanda.
Sharmistha is a barrister specialising in Human Rights, Extradition, Immigration, Asylum and Professional Discipline & Regulatory law.