Dangers of an Overextended Parliament: the Safety of Rwanda Act

The United Kingdom remains under the surveillance of multiple international human rights organizations since their initial passing of the 2023 Illegal Immigration Act and now their Safety of Rwanda (Asylum and Immigration) Act 2023 (the Act). The Act claims to serve a purpose similar to the 2023 Illegal Immigration Act—to deter unlawful and unsafe migration, but this time by “enabling the removal of persons to the Republic of Rwanda” [1]. While the Illegal Immigration Act codified restrictions on who could enter the UK as a refugee, the Safety of Rwanda Act allows the UK to redirect arriving refugees out of the UK and to Rwanda by legally declaring it a “safe country.” However, this practice has raised debates over whether the Act violates the 1951 Refugee Convention’s principle of non-refoulement. The principle of non-refoulement says “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” [2]. Despite this human rights concern, Parliament was able to pass the Act because of parliamentary sovereignty, a statute that guarantees UK Parliament the final say over British courts, even if they find proposed legislation unlawful [3]. The passing of the Safety of Rwanda (Asylum and Immigration) Act 2023 demonstrates the flawed nature of parliamentary sovereignty as it disregards the opinion of the UK Supreme Court, disapplies critical human rights law, and poses risks to refugees’ well-being.

In order to declare Rwanda a “safe country” for all other judicial entities, Parliament had to dismiss the opinion of both the UK Appellate and Supreme Court. On November 15, 2023, the United Kingdom Supreme court judged that Rwanda could not legally be declared a “safe country.” The Supreme Court ruling came after the Divisional Court originally ruled in favor of the Secretary of State for the Home Department, judging the Act to be lawful. However, multiple refugee claimants appealed this decision, and the Supreme Court ultimately ruled in agreement with the Appellate court: “We conclude that the Court of Appeal was correct to reverse the decision of the Divisional Court and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement” [4]. To summarize, the British Supreme and Appellate Court found that removing asylum seekers to Rwanda was unlawful because the risk of refoulement would be present, therefore directly violating protections in Article 33 of the Refugee Convention [5]. However, parliamentary sovereignty allows the government to work around the expertise of the courts by facilitating a treaty between the UK and Rwanda. This lets Parliament declare Rwanda a “safe country” despite the court’s opposing opinion. Parliament justifies this by claiming the treaty addresses all concerns raised by the Supreme Court [6]. However, the Rwanda-UK treaty does nothing more than regurgitate standards that are already in place. For example, Rwanda’s most prominent promise in the treaty is to not to send refugees back to their home countries [7]. Again, this refers to the risk of refoulement defined by Article 33 of the 1951 Refugee Convention. The treaty simply serves as a loophole around the Supreme Court’s ruling and demonstrates how Parliament can use its sovereignty to neglect its international responsibilities per the Refugee Convention. The founding of the UK Supreme Court in 2009 was meant to keep parliamentary sovereignty in check [8]. Thus, assigning Parliament final say in all legislative matters relating to The Safety of Rwanda (Asylum and Immigration) Act 2023 leaves Parliament unchecked and is a step backwards for this cause.

Another display of Parliament overstepping and interfering with the fate of refugees can be found in the Act’s disapplication of critical legal frameworks. Section 3 of the Act is titled “Disapplication of the Human Rights Act 1998” [9]. Here, the Act disapplies sections 3 and 6 through 9 of the Human Rights Act 1998 which sought to incorporate the rights laid out by the European Convention on Human Rights of 1953 into British law [10]. Some of these include the right to life, liberty and security, and freedom of expression [11]. Section 3, “Interpretation of Legislation,” is what requires all proceeding legislation to be compatible with the Convention [12]. Section 6 makes it illegal for courts and tribunals to act in a manner incompatible with the Convention [13]. Sections 7-9 lay out the rules for proceedings against noncompliant public authorities [14]. Because Parliament is designated as the final authority in the UK, it is able to undermine protective legislation such as the Human Rights Act 1998. In the context of the Safety of Rwanda Act, disapplying these sections essentially creates immunity for British courts and tribunals that send refugees to Rwanda, and technically makes the Act lawful. Parliamentary sovereignty provides a legal loophole for the UK’s lawmaking body. And whether it was the intention of Parliament or not, the Act is an example of the consequences of such a circumvention, being a direct attack on refugees.

Testimonies from refugees who have fled Rwanda for the UK also corroborate the argument that Parliament should not be able to declare Rwanda a “safe country” for the purpose of relocating asylum seekers. One Rwandan was granted refugee status in the UK on October 12, 2023. This was around the same time Parliament was arguing for the declaration of Rwanda as a “safe country” in the Supreme Court [15]. The individual’s plea for asylum was accepted since he had well founded fears of persecution for speaking out against the Rwandan government and crimes allegedly committed by President Paul Kagame’s forces in the Democratic Republic of Congo [16]. However, the passage of the Act, might complicate the asylum application process for future cases where Rwandan citizens flee to the UK. Additionally, Victoire Ingabire Umuhoza, a writer for The Guardian, reports on Rwandan’s thoughts about the Act: “Rwandans I speak to disapprove of the deal, but wouldn’t go public about it for fear of the authorities” [17]. For many refugees, political persecution is the reason for leaving their home countries, and fear surrounding the Rwandan government is real and imminent. Therefore, it does not make sense to declare a country “safe” when it still poses the same major threats that refugees originally fled from. Accordingly, refugee informants from Rwanda are proof that the threat of refoulement persists with the passing of the Safety of Rwanda (Asylum and Immigration) Act 2023. This puts the Act in direct contradiction with the 1951 Refugee Convention and demonstrates the harm of unchecked parliamentary sovereignty. Accounts of Rwandan refugees explain the dangers that subjects of the Act may face, and therefore emphasize the ill-use of parliamentary sovereignty in passing this legislation.

Proponents of the Act will likely point to Section 4, which addresses individual circumstances, in attempts to justify the remaining unwarranted conditions. Section 4(1)(a) specifies that the Secretary of State or immigration officers can still decide if Rwanda is a safe destination for individuals in question [18]. Some may argue that this clause protects individual liberties by making space for individuals to contest their removal to Rwanda. However, Section 4(2) states:

“But subsection (1) does not permit a decision-maker to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its international obligations (including in particular its obligations under the Refugee Convention)” [19].

This undermines the validity of any protection that would otherwise be guaranteed in section 4(1)(a) by explicitly preventing decision-makers from considering refoulement in their assessment of the refugee’s safety. Therefore, Section 4(1)(a) does not provide a sufficient avenue for refugees to contest their relocation from the UK to Rwanda. Overall, this clause is not the effective catch-all that Parliament frames it as and refugees are still left vulnerable because of these restrictive exceptions.

Parliament should uphold the Supreme Court’s decision that relocating refugees arriving in the UK to Rwanda is unlawful. Parliamentary sovereignty has allowed for dangerous legislation to enter the floor. It has permitted the government to overlook the Supreme Court’s ruling against the lawfulness of declaring Rwanda a “safe country” for refugees. It has exacerbated the dangers of the Act by carving out exceptions from the Human Rights Act 1998. It has undermined the severity of the human rights concerns that Rwandan refugees face, and therefore the risk of refoulement in the Act thrives. The role of parliamentary sovereignty in the passing of the Act exemplifies a larger issue concerning loopholes and ambiguity in human rights law. As the refugee crisis continues to swell it becomes even more pressing to uphold international standards. Parliamentary sovereignty in the case of the Safety of Rwanda (Asylum and Immigration) Act 2023 should encourage us to think about how structures of authority at the local level can undercut even the most well-established international human rights laws. Ultimately, understanding this can be helpful in refining methods of enforcement, punishment, and remedy for noncompliance with human rights law.

Bibliography:

[1] Safety of Rwanda (Asylum and Immigration) Bill, 2024 c. 8, sec. (1).

[2] “Convention relating to the status of refugees,” United Nations Human Rights Office of the High Commissioner, accessed March 6, 2024, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees.

[3] “Parliament’s Authority,” UK Parliament, accessed March 3, 2024, https://www.parliament.uk/about/how/role/sovereignty/.

[4] AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department, UKSC 42 (2023).

[5] “Convention relating to the status of refugees,” United Nations Human Rights Office of the High Commissioner, accessed March 6, 2024, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees.

[6] Jill Lawless, “Britain and Rwanda strike a new treaty in efforts to revive asylum plan blocked by UK courts,” AP News, December 5, 2023, https://apnews.com/article/uk-rwanda-migration-plan-james-cleverly-aa0f252b87b77dcd724b634840f4e83b.

[7] Ibid.

[8] Constitutional Reform Act, 2005 c. 4.

[9] 2024 c. 8.

[10] “The Human Rights Act,” Equality and Human Rights Commission, November 15, 2018, https://www.equalityhumanrights.com/human-rights/human-rights-act.

[11] Ibid.

[12] The Human Rights Act, 1998 c. 42, sec. (3).

[13] Ibid., sec. (6).

[14] Ibid.

[15] Lawless, “Britain and Rwanda strike a new treaty in efforts to revive asylum plan blocked by UK courts.”

[16] Jon Ungoed-Thomas and Antony Barnett, “Revealed: UK granted asylum to Rwandan refugees while arguing country was safe,” The Guardian, January 27, 2024, https://www.theguardian.com/world/2024/jan/27/revealed-uk-granted-asylum-to-rwandan-refugees-while-arguing-country-was-safe.

[17] Victoire Ingabire Umuhoza, “The new ‘Rwanda Deal’ was a shock to Rwandans. We know this is no place for asylum seekers,” The Guardian, December 12, 2023, https://www.theguardian.com/commentisfree/2023/dec/12/rwanda-deal-rwandans-asylum-seekers-human-rights.

[18] 2024 c. 8, sec. 4(1)(a).

[19] Ibid., sec. 4(2).