Written by Joshua Tate for the International Criminal Law Section.
The UK-Rwanda Asylum Partnership has been the source of distress for some in the UK. However, it is important to remember that the UK did, ultimately, vote in favour of Brexit. In balancing these opinions, the question remains: what is the right thing to do? This article explores this issue by taking the recent Supreme Court ruling into consideration.
"Flying High or Falling Short”
Probably the last time we heard of immigration and asylum seekers was on BBC News, listening to Suella Braverman speak about her dreams to "be on the front page of The Telegraph with a plane taking off for Rwanda"[1]. The plan was introduced by Priti Patel, but one that was pushed by Suella Braverman as part of the Home Office for the Conservative Party.
The initiative was brought about as part of the Migration and Economic Development Partnership. One might assume this partnership was to foster diplomatic relations, and in part, it is. However, this is not where the controversy lies.
It is the ‘asylum partnership arrangement’[2] that has evoked both strong support and scathing criticism from politicians, institutions, and of course, the general public. The arrangement entailed the UK sending -well, flying- asylum seekers to Rwanda, where their asylum claim would be processed; if successful they would settle there, and if not they would face being removed and sent back to their home country.[3]
Asylum seekers are not strangers to moving from one country or region to another, so why is this such a contentious issue? In Australia, asylum seekers can even have their claims processed in neighbouring Nauru or Manus Island.[4]
Opposition to offshore processing partly lies in the increased risk of psychiatric harm[5]. The UN High Commissioner for Refugees (UNHCR) issued a guidance note in response to an increasing number of this type of initiative[6]. Unfortunately, the guidance is ambiguous. Although it discourages this type of practice, it states “there is no obligation for asylum-seekers to seek asylum at the first effective opportunity, yet at the same time there is no unfettered right to choose one’s country of asylum.”[7]. This offers nothing when considering Braverman’s frustration lies with asylum seekers who passed through safe countries such as France to reach the shores of the UK.
A UNHCR meeting concluded that arrangements should be aimed at responsibility sharing and international cooperation.[8] It then becomes clear to see why Braverman has driven this initiative considering, from her perspective, France is uncooperative and the UNHCR does not provide guidance for determining if an asylum seeker is being unfair by seeking to settle in a specific country of their choosing.
Unfortunately for her, the Supreme Court has recently ruled the Rwanda asylum arrangement to be unlawful due to a potential contravention of the European Convention of Human Rights (ECHR) Art. 3 (prohibition of torture) from “(a) as a result of deficiencies in the asylum system with a consequent real risk of refoulement or (b) in Rwanda itself”.[9]
This ruling is significant for many reasons. How will the government respond? Will they seek to modify the current initiative? Will they perhaps repeal the Human Rights Act 1998, thereby removing the influence of the ECHR? The public voted for Brexit, and many saw the referendum as one on immigration, so is the ruling fair to them? Equally, many have found the semantics used by both the media and the Home Office troubling given the language presents the issue as one of an invasion. This could have unduly influenced the public.
Immigration and asylum-seeking will likely continue to be a prevalent issue given the amount of conflict scattered across the globe and it is clear that an effective solution is needed, as opposed to the shifting of responsibility. But what that looks like is another matter entirely. Ultimately one thing is for sure though, Braverman’s dream of seeing a plane taking off to Rwanda will have to wait.
References
[1] Suella Braverman says it is her ‘dream’ and ‘obsession’ to see a flight take asylum seekers to Rwanda | The Independent
[2] Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement - GOV.UK (www.gov.uk)
[3] Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement - GOV.UK (www.gov.uk), para 2.1
[4] Asylum seekers and refugees | Australian Human Rights Commission
[5] Psychological Distress in Australian Onshore and Offshore Immigration Detention Centres from 2014–2018
[6] Refword | Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers, Para. 2
[7] ibid. Para 3(i)
[9] R (on the application of AAA) v Secretary of State for the Home Department EWCA Civ 745, [527] Access: AAA (Syria) & Ors, R (on the application of) v The Secretary of State for the Home Department (Rev1) [2023] EWCA Civ 745 (29 June 2023) (bailii.org)
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