What have we agreed with Rwanda?
A first look at the new asylum partnership treaty
Introducing the government’s asylum partnership treaty with Rwanda, the home secretary said it “responds directly” to concerns raised by the Supreme Court three weeks ago.
Five justices found there had been real risk, at the time legal challenges were launched last year, that future claims for asylum in Rwanda would not be decided properly. That would put claimants at risk of being returned directly or indirectly to their country of origin, where they would be in danger.
However, Lord Reed and his four most senior colleagues added, “the structural changes and capacity-building needed to eliminate that risk may be delivered in the future”. That’s what James Cleverly is counting on.
The treaty he signed yesterday looks similar to the memorandum of understanding — or MOU — signed by Priti Patel on 13 April 2022. Some of its terms have simply been copied across. For example, a veto in article 4.2 of the treaty that says “all transfer requests by the United Kingdom shall require approval by Rwanda prior to any relocation” was previously in paragraph 3.2 of the MOU.
But there are some important differences.
Although a memorandum of understanding is an agreements between states, its provisions are not legally binding in international law.
Treaties are different. They are international agreements between nation states that create rights and obligations in international law. In the UK, treaty-making is a function of the government under the royal prerogative.
Since 1924 there has been a convention — known as the Ponsonby rule — that, once signed, treaties are laid before parliament for 21 days before they can be ratified. In 2010, this convention became a statutory requirement. However, no debate or vote in parliament is required before a treaty is ratified.
The House of Commons has the power to delay ratification for 21 days — repeatedly, if it wishes — but only if the government makes time for debates and votes. The House of Lords can vote against ratification but the government can still proceed by making a statement setting out why it believes ratification should go ahead.
In the old MOU, a relocated individual was defined as an asylum seeker who is being, or has been, removed from the United Kingdom and who the Rwanda and the UK have agreed will be relocated to Rwanda.
In the new treaty, a relocated individual is an individual who is being considered for removal, is being removed or has been removed from the United Kingdom to Rwanda in accordance with the treaty. That definition covers not only asylum seekers but also others who arrive illegally in the UK.
The old MOU said Rwanda and the UK merely “assure one another that the understandings reached in this arrangement will be met in respect of all relocated individuals”.
The new treaty goes much further. This is part of article 3:
The treaty is also much clearer about claims for humanitarian protection made by people who say they would face a real risk of inhuman, degrading treatment or torture or a real risk to their life if they were sent back to their country of origin. Rwanda has agreed that these individuals will be treated in the same way as refugees.
Article 11(1) allows the UK to ask for a relocated individual to be returned to the UK. Crucially, a relocated individual cannot be sent anywhere else by Rwanda. This is part of article 10:
That’s apparently meant to cover migrants who commit serious crimes in Rwanda or who pose a threat to the country’s national security. Home Office sources told the Telegraph that the provision would apply only to a small number of serious offenders and, once returned to the UK, they could still be deported back to their home country if it was a “safe” destination.
A new joint committee is to be established, with senior representatives from Rwanda and the UK. It will provide a forum for discussing best practice. A monitoring committee will be drawn from people independent of Rwanda and the UK.
Article 15 includes a new safeguard:
As the Home Office says,
The monitoring committee will also develop a system which will enable relocated individuals and legal representatives to lodge confidential complaints directly to them. It will have the power to set its own priority areas for monitoring, and have unfettered access for the purposes of completing assessments and reports. It may publish reports as it sees fit on its findings.
The new treaty includes a mechanism for resolving disputes over how it is to be implemented, if necessary through binding arbitration.
The treaty will enter into effect once it has been ratified by both parties. It will remain in force until 13 April 2027, which was when the old MOU had been due to expire. It may be extended if blocked by a court and it can be renewed by agreement.
Annex A deals with:
legal awareness training
treatment in accordance with the refugee convention.
Annex B deals with claims for asylum and humanitarian protection. It creates two new decision-making panels — a first instance body and an appeal body. The first instance body has important responsibilities:
The appeal body will have one Rwandan and one other Commonwealth national co-president with experience of asylum or humanitarian protection. They will choose “other judges from a mix of nationalities”.
Annex C deals with information management and protection.
As far as I can see, there is no provision in the treaty for UK government lawyers to be based in Rwanda, an idea that was floated in the media. But it’s understood that UK lawyers may be seconded to work there. And they might be needed to give evidence in the event of challenges in the UK courts.
The treaty has certainly been beefed up. But ministers won’t have been very pleased to hear officials from the Rwandan government suggesting yesterday that no improvements were needed to their asylum provisions because these had been misjudged by the UN human rights commissioner and, as a result, by the UK Supreme Court. Rwanda’s foreign affairs minister, Vincent Biruta, said the country had been unfairly treated by the courts, international organisations and the media.
We now await the government’s promised “emergency” legislation. Ministers are still discussing how far it should go.
If and when new laws are passed by parliament, we’ll see how well they stand up to challenge in the courts.
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