UK-Rwanda migrant deal challenges international protection law

In late April 2024 the British parliament passed a law – the Safety of Rwanda Act – enabling it to transport migrants arriving in the UK to Rwanda. When the legislation was approved by parliament, there were 52,000 asylum seekers who could potentially be sent to Rwanda.

The law has been condemned by a range of UN actors, human rights lawyers and activists.

As a scholar of international law – with a particular focus on the protection of asylum-seekers, refugees, migrants – one of my biggest concerns is that the UK’s Safety of Rwanda act flouts one of the fundamental principles of international law: the principle of non-refoulement. The principle prohibits countries from transferring or removing people from their jurisdiction or control when there are substantial grounds to believe that they could be at risk of irreparable harm. This includes torture or other cruel, inhuman or degrading treatment.

“Substantial grounds” is determined by the host country. However, international agencies (like UNHCR) can intervene. Courts in the US interpret “substantial grounds” as a situation in which an individual “is more likely than not” to be at risk of irreparable harm.

Countries are obliged not to send people to countries where they could suffer harm. If they deserve asylum, refugee status should be granted. Otherwise, they should be provided with an alternative form of protection.

Opponents of the UK’s policy argue that removing asylum-seekers to Rwanda would violate this principle.

A group of human rights experts who advise the UN human rights body have already warned that airlines and aviation authorities could be at risk of violating the law by facilitating removals to Rwanda from the UK. This is because the experts believe asylum seekers could be at risk of being sent into a situation where their basic rights could be in danger.

The principle’s history

In the aftermath of the first (1914-1918) and second (1939-1945) world wars, millions of people fled their homes in search of refuge. In response, the international community steadily assembled a set of guidelines, laws and conventions aimed at protecting the basic human rights and treatment of people forced to flee conflict and persecution.

The process, which began under the League of Nations in 1921, culminated in the 1951 Convention Relating to the Status of Refugees. This provide the most comprehensive codification of the rights of refugees at the international level.

The principle of non-refoulement was first enshrined in the 1951 convention, and has since been recognised by other international legal instruments and treaties:

• 1967 Protocol Relating to the Status of Refugees
• International Covenant on Civil and Political Rights
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• United Nations Declaration on Territorial Asylum
• 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

The principle has become a customary international norm. This means that all countries – even those that haven’t ratified all these treaties – must respect it.

Enforcing the principle

Both domestic and international courts can deal with cases. So far in Africa, only domestic courts have dealt with the infringement of this principle. In Europe, the European Court of Human Rights has intervened.

If a country is taken to court for violating the principle of non-refoulement and it loses, several consequences can follow:

Court orders and injunctions: The court may issue orders to stop deportations.

For instance, in the 2010s, Israel reached agreements that Rwanda and Uganda would accept Eritrean and Sudanese asylum seekers deported from Israel. But many asylum seekers deported to Rwanda and Uganda faced further human rights abuses. Many were left without legal status or access to basic services, forcing them into precarious situations. Israeli human rights groups filed petitions against the deportations, leading to several legal battles. In 2018, Israel’s Supreme Court temporarily blocked the deportation plan, demanding more transparency and assurances regarding the safety and rights of the deportees. Under mounting legal and international pressure, Israel eventually suspended its deportation plan in April 2018. The government had to reconsider its policies towards asylum seekers.

Compensation and redress: The country might be ordered to provide compensation to the affected individuals for any harm suffered due to the violation.

For instance, in 2011 the European Court of Human Rights forced Belgium to pay an Afghan asylum seeker €24,900 in damages and €7,350 for costs and expenses. Belgium violated the principle when it sent the asylum seeker back to Greece, knowing about substandard conditions and deficiencies in the Greek asylum system.

Reputational damage: The country may face international criticism and damage to its reputation, affecting its diplomatic relations and standing in the international community.

Sanctions: In some cases, the country might face sanctions or other penalties imposed by international bodies or courts. For instance, in 2021 the EU imposed sanctions on Belarus, partly due to its treatment of asylum seekers and migrants.

Changes to law and policy: The ruling may compel the country to amend its laws and policies to prevent future violations and ensure protection for asylum seekers and refugees.

Scrutiny: The country may come under increased scrutiny from international human rights organisations and monitoring bodies to ensure compliance with the court’s decision.

What this means for the UK-Rwanda deal

In late 2023, the UK Supreme Court found that sending people to Rwanda risked violating international treaties prohibiting refoulement. Part of the ruling read:

The central issue in the present case is [the Rwandan government’s] practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement…

But the UK government ignored the courty’s ruling and pressed ahead with getting the law through parliament. In a bid to manage the negative fallout from the bill, the UK government released a policy statement saying that refoulement would not happen. It said a monitoring committee would ensure compliance with the UK’s international obligations.

The Safety of Rwanda Act provides that the government of Rwanda will not remove anybody who is transferred from the UK to Rwanda, except to send them back to the UK.

The main problem is whether Rwanda’s government will follow through on its promises. There are flaws in the country’s asylum system and changes are needed in how it handles refugees.

For example, refugees in Rwanda face prejudice and discrimination and most are poor. Over 90% live in camps and rely on a meagre cash assistance of 10,000 Rwandan francs (US$7.94) a month to buy food.

Human rights organisations have also pointed out that Rwanda’s human rights record makes it no country for refugees.

In addition, there have been episodes in which people have been sent back to dangerous situations. For instance, when Israel entered into a similar deal with Rwanda in 2013, thousands of people were expelled to countries of origin by Kigali without being allowed to claim asylum.

What next?

There’s a chance that, before UK asylum seekers are sent to Rwanda, they may lodge cases against the UK government claiming the risk of refoulement. This will delay their departure as courts would need to consider claims based on the person’s background and make a decision based on their circumstances on whether the threat truly exists.

Evidence might include aspects of an individual’s personal or family background, health, sexuality, or their past relationship with the authorities in Rwanda.

Whether any claim succeeds will depend on the strength of the evidence about a person’s individual circumstances and the risk they might face if removed.

Cristiano d’Orsi, Lecturer and Senior Research Fellow at the South African Research Chair in International Law (SARCIL), University of Johannesburg

This article is republished from The Conversation under a Creative Commons license. Read the original article.