The Rwanda Act: what next in the courts?

The Safety of Rwanda (Asylum and Immigration) Bill has now been passed by both Houses of Parliament and will become an Act once it receives Royal Assent. Although the House of Lords held out for several rounds of ping-pong, in the end the only concessions were an amendment requiring the Secretary of State to produce an annual report about the operation of the Act in relation to modern slavery and people trafficking; and a non-statutory commitment (not apparently a “concession”) that the government would not remove to Rwanda those deemed (after a review) eligible under the Afghan relocations and assistance policy.

The essential elements of the Act therefore remain unchanged: 

•    a conclusive statutory declaration that Rwanda is “safe”, binding on all relevant decision-makers, courts and tribunals – notwithstanding any other provision of domestic law (including the Immigration Acts and most provisions of the Human Rights Act 1998) or international law.

•    the exclusion of most routes of legal challenge.

•    provision that where the European Court of Human Rights (ECtHR) indicates interim (rule 39) measures delaying or preventing removal to Rwanda, government ministers (and only ministers) can decide whether to comply.

The Act is one of the most controversial and divisive in modern times. The political debate about it will continue: whether it will actually deter illegal immigration into the UK or make a meaningful contribution to “stopping the boats”; what the scheme will (and has already) cost; how soon the practical arrangements can be made for removals; indeed, whether anyone will in fact be removed to Rwanda; and what the legislation says about the government’s attitude towards international law, the role of the courts, and the human rights of individuals.

This note is focussed on what will happen in the courts, to which the action will no doubt now move. What types of legal challenge might there be?

A “constitutional challenge” to the whole Act

One suggestion has been that the courts might strike down the entire Act on the grounds that it is, in some sense, “unconstitutional”. Criticism has focussed on the deeming provision in section 2, which declares Rwanda to be safe now and for all time, notwithstanding the recent finding of the Supreme Court that it was unsafe, and whatever might happen there in the future. As Lord Anderson has put it, the Act “declares Rwanda to be safe (which it isn’t yet) and will always be safe (which is obviously unknowable)”. In truth what the Act is doing is making it lawful to send people to Rwanda whether it is safe or not.

However perverse or objectionable this proposition might seem, it is now the law. Under our constitution, parliament is sovereign and can pass any laws it likes, even perverse or objectionable ones. It is the role of the courts to give effect to legislation passed by parliament: the courts have no power to strike down an Act of Parliament. Although from time to time commentators, even senior judges, have contemplated the possibility of laws so abhorrent that the courts might decline to give effect to them, the working assumption must be that the courts will give effect to the Rwanda Act, including the conclusive declaration that Rwanda is “safe”.

That doesn’t mean such challenges won’t be brought. What if in the future there were to be the most compelling evidence (eye witness testimony, videos, reports of respected independent bodies) of refugees being badly mistreated in Rwanda or illegally refouled to unsafe third countries, and a complete breakdown of the arrangements agreed in the UK-Rwanda Treaty? What are the courts to make of such evidence? The Rwanda Act says the courts “must not consider it”. It is one of the most offensive aspects of the Act that it requires the courts (as well as ministers and immigration officers) to disregard real life evidence about the mistreatment of human beings, however compelling and extreme it might be. 

You might hope that the government (whether the current or future one) would stop removals to Rwanda, or even repeal the Act, in the face of such evidence. But what if they carried on regardless? It will be a brave claimant who tries to persuade a court, against the words of the Act, that parliament cannot really have intended the deeming provision in section 2 to apply even if things got really horrible in Rwanda. But you can see how someone might try if that happened. 

Short of such a “constitutional” challenge, however, the Act itself provides for some routes of legal challenge – albeit narrow ones.

A declaration of incompatibility under the HRA

First, although section 3 disapplies much of the Human Rights Act 1998 (HRA), it leaves open the possibility of seeking a declaration of incompatibility under section 4 of the HRA. The home secretary, in introducing the Rwanda Bill, accepted that he was unable to state that it was compatible with the European Convention on Human Rights (ECHR). Thus it will be open to a claimant to argue that the Act gives rise to a breach of their ECHR rights: that might be, for example, the right to life (Article 2), the right not to be tortured or mistreated (Article 3), the right to respect for private and family life (Article 8), or (bearing in mind the constraints on legal challenge under the Act), the right to a fair determination of a claimant’s civil rights and obligations (Article 6). 

A declaration of incompatibility is just that – a declaration. It does not strike down the relevant legislation. It does not legally require the government to do anything. But it would (or should) have political and moral force. And it might pave the way for a claim in the ECtHR (see below).    

Claims based on particular individual circumstances

Section 4 of the Act allows decision-makers and courts to consider claims that Rwanda is not a safe country for a person based on compelling evidence relating specifically to the person’s particular individual circumstances (rather than on the grounds that Rwanda is not a safe country in general). That might perhaps be evidence about an individual’s personal or family background, health, sexuality, or their past relationship with the authorities in Rwanda.  

However, by section 4(2), such a claim can’t be based on the risk that the individual might be “refouled” – i.e. sent on to another country in breach of Rwanda’s international obligations. The risk has to arise from their treatment in Rwanda itself.

Section 4(4) goes on to provide for very limited circumstances in which a court can grant an interim remedy to prevent or delay someone’s removal to Rwanda. Such an interim remedy can be granted “only if the court or tribunal is satisfied that the person would, before the review or appeal is determined, face a real, imminent and foreseeable risk of serious and irreversible harm” if removed to Rwanda. (Incidentally this is similar to the test for interim measures applied by the ECtHR.)

These grounds of challenge are obviously designed to be as narrow as possible. However there is no doubt that such challenges will be brought, possibly in large numbers. Whether any claim succeeds will obviously depend on the strength of the evidence about a person’s individual circumstances and the risk they might face if removed.

A claim might be lodged as soon as someone is notified or aware that they are due to be removed. Such claims will typically be accompanied by applications for an interim order to delay removal – on the basis that it will all be too late once someone has been sent to Rwanda. The courts are used to hearing emergency applications very quickly. But the full hearing of a claim might take many months, with the possibility of appeals to the Court of Appeal and the Supreme Court.

Applications to the Strasbourg court

The other possible route of challenge is to the ECtHR in Strasbourg. Again the argument would be that the Act, or a particular decision under it, breaches a claimant’s ECHR rights. A claimant would be expected to bring such a claim only once any claims in the domestic courts have failed. The ECtHR will not be bound by the UK legislation or by the presumption that Rwanda is “safe”. It will conduct its own assessment on the basis of the evidence before it. 

If the ECtHR concludes that an individual would face an imminent risk of irreparable harm if removed to Rwanda, it may issue a rule 39 measure, preventing removal until the full case can be determined. Under section 5 of the Rwanda Act, only a government minister can decide whether or not to comply with such a rule 39 measure. The prime minister has said that no “foreign court” will prevent flights taking off. But failure to comply (i.e. removing someone in defiance of a measure) would almost inevitably involve a breach of the UK’s international law obligations under the ECHR, and would clearly put the UK in conflict with the ECtHR and the Council of Europe.

Whether or not the ECtHR ordered interim measures, it might find the UK to be in breach of the ECHR following a full hearing of a case and (for example) make an award of damages.

The parliamentary debates are over but the legal ones are to come. Given what is at stake we can expect plenty of action in both the domestic and Strasbourg courts.