The Rwanda plan could have gone ahead if Tory Ministers had taken human rights seriously
Supporters of the Rwanda plan should not think that its failure means the UK needs to leave the ECHR to stop the small boats - it doesn't
The Rwanda scheme aimed to deter illegal entrants from crossing the Channel to claim asylum in the UK. Instead of having their claims considered in the UK, illegal entrants would be deported to Rwanda, where their claims would be assessed by Rwandan officials. Successful claimants would be settled in Rwanda.
The plan was devised when Boris Johnson was Prime Minister and Priti Patel was Home Secretary. A Memorandum of Understanding (MOU) between the UK and Rwanda was published on 14 April 2022.
The Rwanda scheme need not have infringed human rights law. UK judges accepted that it was consistent with the 1951 Refugee Convention on the Status of Refugees (the Refugee Convention) and the European Convention on Human Rights (ECHR) to deport illegal entrants to a safe country which would process their claims and allow successful applicants to settle there.
The office of the United Nations High Commissioner for Refugees (UNHCR) had published guidance in 2013 on transfers of asylum-seekers to another country for processing, followed by settlement in the country to which they had been transferred.
An important caveat when reading guidance and other communications from the UNCHR is that they may reflect not only the legal requirements of the Refugee Convention, but also the UNCHR’s view of the “appropriateness” of national policies, and their consistency with principles of “global solidarity and responsibility-sharing.” Parties to the Refugee Convention are bound by the text of the Convention but not by these broader considerations.
The 2013 guidance states that the primary responsibility to provide protection rests with the State where asylum is sought, but adds that asylum-seekers have no unfettered right to choose their country of asylum.
In its critical assessment of the UK/Rwanda arrangements in June 2022, the UNHCR found aspects of the scheme inconsistent with its 2013 guidance. In particular, it expressed “serious concerns” that asylum-seekers deported from the UK to Rwanda would not have access to fair and efficient procedures for the determination of refugee status, and would be at risk of being sent back to an unsafe country of origin.
The UNHCR considered that “long-term and fundamental engagement” was needed to develop Rwanda’s asylum assessment system so that it could adjudicate individual asylum claims efficiently, fairly and consistently.
In November 2023 the UK Supreme Court endorsed UNHCR criticisms of the Rwanda plan, holding the Rwanda scheme to be unlawful because Rwanda could not be considered to be a safe country.
Rwanda’s ability to fairly process asylum claims could not be relied upon
The key reason why Rwanda could not be considered to be safe was that it did not have a system capable of fairly processing asylum applications, and of ensuring fair judicial appeals where necessary. This meant that in practice genuine asylum seekers could be refused asylum in Rwanda, and risk deportation to the country from which they had fled.
The Sunak Government tabled an improved Rwanda plan
The UK Supreme Court’s verdict on the Rwanda plan in November 2023 had been anticipated by the Government. The text of a UK/Rwanda treaty, agreed but not yet in force, and intended to replace the earlier MOU, was published only three weeks after the Supreme Court’s judgment. The treaty made significant improvements in the scheme tabled more than 18 months earlier.
For example, there was to be a new structure for deciding asylum claims in Rwanda, with a First Instance Body staffed by appropriately trained individuals who had received instruction in asylum and refugee law. There would also be an Appeal Body, with a Rwandan President and one other Commonwealth national co-president with asylum/humanitarian protection experience. The Presidents would select judges of a mix of nationalities.
Both the First Instance Body and the Appeal Body would for transitional periods take advice from independent experts before reaching their decisions. There was also to be an independent Monitoring Committee which would scrutinise all elements of the relocation of asylum-seekers and the processing of claims and report to a UK/Rwanda Joint Committee.
The UNCHR assessment of the new UK plan in January 2024 concluded that the treaty provided an important basis for achieving fair and efficient asylum procedures, provided the necessary legal framework was put in place and implemented in practice.
The treaty could not put right deficiencies in the Rwandan system until it was actually up and running and providing a fair and effective system of asylum assessment and judicial appeals. Bringing the treaty into force would be a first step in that direction but would still leave much to done on the ground in Rwanda, including the enactment of Rwandan legislation, and bringing about the changes required by that legislation and the treaty.
The Sunak Government changes the rules of the game
With a general election inevitable in 2024, the Sunak Government chose to cut corners. It promoted the passing of an Act to ensure that all UK decision-makers, including UK courts, would treat Rwanda as being a safe country for UK asylum-seekers transferred from the UK, with effect from the date of entry into force of both the legislation in question, and the UK/Rwanda treaty – 25 April 2024. The Act ruled out challenges to deportations to Rwanda based on the ECHR.
Less than a month later, with the Rwanda plan still in limbo, Rishi Sunak announced that there would be a general election in July. Labour won that election, and the new Prime Minister, Sir Keir Starmer, announced the scrapping of the Rwanda plan on his first day in office.
Some UK politicians blame the ECHR for the failure of the Rwanda plan, but an alternative and wholly tenable view is that the plan failed because the Johnson Government tabled a badly prepared and obviously inadequate plan in the first place, and that if the amended plan had been tabled at the outset, things could have worked out very differently.
An alternative history of the Rwanda plan
In an alternative history civil servants briefed Ministers in the Johnson Government that they had consulted UNCHR documents on Rwandan capacity to process asylum claims and held discussions with UNCHR officials and the obvious conclusion was that the Rwandan system was not fit for purpose. It would need a new culture, led by a new structure, better-qualified staff, and judicial overview by a new appeal body outside the framework of the existing Rwandan judiciary. UK civil servants advise that a new system would take time to bed down, require monitoring, and a transitional scheme of lengthy duration.
In this alternative history, the treaty which was published in December 2023 is published in April 2022. It contains extra transitional provisions whereby asylum-seekers transferred to Uganda will be assessed by UK officials as well as Rwandan officials and the UK agrees to accept as refugees those asylum-seekers with links with the UK, or who are rejected by Rwandan officials but rated as genuine refugees by UK officials. Home Secretary Priti Patel cooperates throughout with the UNHCR, as does her successor Suella Braverman.
Over the next 18 months the new system is put in place in Rwanda. It is bench-tested with simulated interviews using anonymised profiles of previous successful and unsuccessful asylum applicants in the UK, while at the same time legal challenges to it proceed through the UK courts. The first transfers to Rwanda take place early in 2024.
The UK does not need to leave the ECHR to stop the small boats
The purpose of this mix of true account and alternative history is not to argue that the fact that a policy might be human-rights compliant automatically qualifies it as a good policy. It is to make a contribution to the debate in the UK over the UK’s membership of the ECHR. One line of argument is that the UK will never stop the small boats unless it leaves the ECHR. The failure of the Rwanda scheme is said to be proof of this. It is no such thing.
For better or worse, if the Johnson Government had taken human rights seriously, the Rwanda plan, in a form very similar to that provided in the UK/Rwanda treaty, could have gone ahead.
Derrick Wyatt, KC is Emeritus Professor of Law at the University of Oxford and a former barrister. He argued cases before the EU Courts and advised businesses and governments.