Philip Collins is a PhD Candidate at the University of Galway’s Irish Centre for Human Rights and is also a graduate of the University’s LLM Programme in International Human Rights Law. His research focus is on the right to seek asylum within international refugee law. He is also a practicing immigration attorney in the US, specialising in asylum law and family reunification.
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On November 15th, 2023, the UK Supreme Court handed down its highly anticipated decision in R (on the application of AAA (Syria) and others), the legal challenge lodged by asylum-seekers against the UK Home Secretary seeking to put an end to the UK-Rwanda Asylum Deal formed in April 2022. The deal (officially known as the ‘UK and Rwanda Migration and Economic Development Partnership’), outlined in a non-enforceable Memorandum of Understanding (‘MOU’), was meant to be an arranged exchange of development funding in return for Rwanda’s onboarding and processing of the claims of certain asylum-seekers arriving in the UK. After over a year-and-a-half of legal challenges in the lower courts, the UK Supreme Court issued its long-awaited ruling, finding that the Deal –at least in its current form– would be a violation of the UK’s international legal obligation to protect asylum-seekers from being sent or returned into danger, i.e., non-refoulement.
Non-refoulement stands as a well-established cornerstone of international refugee law, compelling states to refrain from returning refugees to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, political opinion, or membership in a particular social group. Slightly different forms or elements of this principle are echoed throughout a number of international multilateral treaties, as well as the European Convention on Human Rights and in the UK’s own domestic law. Thus, after a thorough review of the Home Secretary and Rwanda’s assurances in relation to the Asylum Deal, along with the countervailing evidence presented by the UN High Commissioner for Refugees (‘UNHCR’) and other advocacy groups, the Supreme Court came to the unanimous decision that there were substantial grounds for believing that asylum-seekers would be at real risk of refoulement if they were sent to Rwanda, even despite its designation as a ‘Safe Third Country’.
The attempt to legally safeguard the Asylum Deal in this way was meant to closely follow UK’s 1971 Immigration Act, which (broadly) defines a ‘Safe Third Country’ as a place where asylum-seekers lives and liberty are protected, where they can apply for and receive refugee status, and where non-refoulement is respected and adhered to in accordance with the 1951 Refugee Convention. In other words, that there would be no risk of either refoulement or chain-refoulement, a process by which migrants are transferred from one state to the next until they are ultimately sent or returned into danger. Perhaps in theory, a ‘Safe Third Country’ arrangement could conceivably fall in line with international human rights and refugee law and the principle of non-refoulement – but in reality, these types of arrangements are fraught with complications. The 2016 EU-Turkey Deal for the return of Syrian refugees from Greece to Turkey, for example, placed many Syrians directly in harm’s way and resulted in many being forcibly returned to Syria. The US similarly formed an ‘Asylum Cooperative Agreement’ with Guatemala in 2019, flying hundreds of Honduran and El Salvadoran nationals to Guatemala where none, it was later found, received asylum, and many were returned to the countries and the dangers they originally fled.
By contrast, the UK judgment afforded a significant amount of deference to the UNHCR’s expertise, findings, and evidence relating to the Rwandan asylum system. For its part, the UNHCR adopts the position that asylum seekers and refugees should ordinarily be processed in the territory of the state where they arrive or which has jurisdiction over them, and that states should adhere to the international solidarity and burden-sharing spirit outlined the Refugee Convention even when undertaking ‘transfer arrangements’ with third countries. Where a ‘Safe Third Country’ policy such as the Asylum deal is proposed, UNHCR takes the position that such arrangements are unlawful forms of externalization where they “involve inadequate safeguards to guarantee international protection” or “shifting responsibility for identifying or meeting international protection needs to another State or leaving such needs unmet.” The Supreme Court reviewed UNHCR’s findings of such inadequate protection in Rwanda’s asylum system citing a lack of legal representation in the asylum process (para 84), 100% denial rates for certain nationals from conflict zones (para 85), and its ‘practice of refoulement’ (para 87), especially against asylum-seekers from the Middle East and Afghanistan. Additionally, it found that Rwanda’s assurances in a previous arrangement with Israel led to the clandestine deportation of hundreds of asylum-seekers to Uganda (para 96).
The responses from Rwanda and the Home Secretary to many of these issues proved unconvincing to the court as attempts to deflect or explain away the evidence. The Home Secretary even asserted that it makes no difference whether asylum claims are processed correctly in Rwanda since asylum-seekers would still not be subject to refoulement, an argument which the Supreme Court called “somewhat surprising” considering that the terms of the MOU directly contradict this claim (para 94). In the end, while it noted Rwanda’s good faith in entering into the arrangement, the Supreme Court relied on the evidence before it, noting that ‘intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice” (para 102). On the evidence, the Court found that it was not.
This decision of the Court to rely on the evidence over the assertions of government officials to the contrary –and indeed to even to cite to and deferentially apply the principles of international refugee law and non-refoulement– undoubtedly make this judgment noteworthy on the international landscape. Legal practitioners everywhere, and especially in the UK, see this judgment as a validation of the rule of law in a world where anti-immigrant sentiment and policies have become the norm. Though even among supporters of the judgment, there has certainly been some valid criticism of the ruling’s focus on Rwanda’s own assurances about its asylum system, especially considering it is the UK, not Rwanda, that was seeking to externalize its own responsibilities to asylum-seekers in its controversial efforts to ‘stop the boats’. And for its part, a Rwandan government officials has decried the judgment as undue criticism of its commitment to international obligations and overall safety as a place for refugees.
Despite the importance and prominence with which this decision sits on the world stage, moving forward, it’s unclear what lessons will be learned from it. The immediate reaction from the UK Prime Minister was to press forward an emergency ‘Plan B’ on the UK-Rwanda agreement. And sentiments that the UK should withdraw from the European Convention on Human Rights, the law of which drove much of the Supreme Court’s decision making, have grown. A follow-up agreement with Rwanda or firmer international agreement, such as a bilateral treaty, could certainly make future challenges to the proposed policy much more difficult. By and large, the Supreme Court judgment bypassed any question as to whether a ‘Safe Third Country’ agreement in and of itself could be a lawfully viable mechanism to control migration.
In fact, the ruling certainly seems to suggest that had the evidence of a substantial risk of refoulement for asylum-seekers not been as strongly present in this case, the policy might have stood as a lawful exercise of the state – even where it might contradict the UNHCR’s contention that any agreement which completely passes all responsibility to another state to identify or meet international protection needs is an unlawful act of externalization. It follows, then, that potential future agreements with appropriate safeguards against refoulement for asylum-seekers might pass the Supreme Court’s test, but could fly in the face of the UNHCR’s position on transfers of responsibility. With that in mind, will this ultimately be a victory, then, for the rule of law, or does this leave the door open to “minimal risk” evaluations that would allow some, but not a substantial, amount of refoulement for asylum-seeking individuals? It’s difficult to see how such an arrangement could align with international refugee law.
For those states that are dead set on restricting migrant flows to their shores and borders, the tendency to abdicate their burden-sharing obligations and responsibilities toward asylum-seeking migrants is unlikely to dissipate anytime soon, even in the wake of this judgment. But for the first time in what feels like a long while on the world stage, international refugee law has carved out enough rights for refugees to show that, at the very least, there is a minimum standard below which states cannot and should not cross in denying them due protection. Whether this lesson is learned or not, and whatever the outcome of any future arrangements may be, it’s safe to assume there are at least six individuals praising the outcome of this judgment in a way that most others couldn’t: the Syrian, Sudanese, Iraqi, Vietnamese, and two Iranian individuals who fought the case all the way to the UK Supreme Court, and won.
Irish Centre for Human Rights 