Wed 22 Jun 2022

Constitutional Questions - asylum seekers flights to Rwanda

Following a busy week for constitutional issues, the second blog in our three-part series considers the legal issues surrounding the decision to transfer UK asylum seekers to Rwanda.

The Home Office (the HO) policy of flying asylum seekers to Rwanda has been controversial both among lawyers and wider society. There are some legal issues which arise from the policy, separate from whether it is or is not an acceptable policy which is a political question.

The HO entered into a Memorandum of Understanding (the MoU) with the Government of Rwanda to transfer UK asylum seekers to have their claims processed in Rwanda. The MoU sits against a background that it is not a legal requirement for asylum seekers to seek asylum in the first safe country they reach in Europe, although the HO state this is their current position. Since Brexit there is also no right to return a failed asylum seeker to another safe EU country.

The MoU is not a treaty between states which can be enforced and is covered by treaty law. The MoU is an agreement, which has no legal force of itself, but sets out what the parties have agreed will happen between them. There was therefore no requirement to have the MoU put before and debated by Parliament and the HO has dealt with policy as an administrative matter. The legality of the policy is to be considered by the UK courts by way of judicial review beginning in July 2022.

The MoU provides that HO will send asylum seekers to Rwanda where officials there will determine whether their applications seeking asylum will be granted. No consideration will be made in the UK of the asylum seekers application. Successful applicants will not be returned to UK from Rwanda, even if they would have been successful in an application to stay in the UK, but will be assisted to make a new life in Rwanda. Legally this process is not making a decision based on UK law as to whether the asylum seeker should succeed in their application, generally known as offshoring, but is treated as an application for asylum in Rwanda, processed in Rwanda.

Last week saw a series of applications to UK courts seeking to prevent removal of the first asylum seekers being sent to Rwanda. The three courts within the UK refused the applications for judicial review on the basis the human rights concerns around the initial removals could be addressed by the HO accepting that they would return the asylum seekers to the UK should the challenge to the policy be refused in July.  The final application to the Court of the European Convention of Human Rights (the ECHR) in Strasburg issued an interim order preventing the removal of the last asylum seeker. The UK was a founding member and remains a signatory of the ECHR who are the ultimate court determining human rights issues for signatories of the convention. The plane was effectively grounded.

The UK government have complied with the order although they are making preparations for further removals. They have also indicated they are considering the role of the ECHR going forward and amendment of UK human rights legislation which was already under consideration.

The involvement of lawyers petitioning the various courts to prevent the removals taking place was a matter of "disappointment" to the UK Government albeit the HO office were successful in the UK courts. However, Lord Reed, President of the UK Supreme Court, stated that;

"In bringing that application, the appellant's lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the Government."

The politics of this story continue to occupy the UK Government, Parliament and wider interests in the community. The judicial review in July will fully address the legal issues arising from the policy and it would be very surprising if the case did not make its way to the Supreme Court again and possibly even to Strasburg.

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