The New Emergency Rwanda Asylum Bill

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
8 December 2023

The Government has published its emergency Rwanda Bill, which will disapply sections of the Human Rights Act 1998. Suella Braverman warned that the Tories would face “electoral oblivion” if the legislation was not tough enough. The Bill said that ministers have the power to ignore judgments from Strasbourg but stop short of disapplying the ECHR. This means it does not go as far as what former Home Secretary Suella Braverman called for.

The Prime Minister urged the MPs that a Bill which disapplies sections of the Human Rights Act offers the Tories a chance to unite and take the fire to Labour. The seven-page Bill was published shortly before Mr Sunak’s address to the 1922 Committee and James Cleverly’s statement to the House of Commons. The Bill’s solution to the Supreme Court verdict last month is to disapply elements of the Human Rights Act which would have exposed the Government to legal challenges, while also declaring in law that Rwanda is a safe country. It will let ministers override the European Court of Human Rights’ edicts to block planes from taking off. However, it stopped short of leaving the Convention and does not include clauses which would allow ministers to ignore the ECHR and other international treaties in the area of asylum.

In short, the Government’s argument is that the legislation unveiled tonight is as far as they could have gone without abandoning international law. If they had gone further in abandoning the Convention, then the argument is that the partnership between London and Rwanda would have been at risk.

The Bill is to conclusively deem Rwanda a safe country. The Bill is the toughest immigration legislation ever introduced to Parliament and delivers on the Prime Minister’s priority to stop the boats and ensure the people know that if they come to the UK illegally, they will not be able to stay.

Like much of the legislation, the current Bill begins with a statement of its purpose.

Section (2) of the legislation says that the Act gives effect to the judgment of Parliament that the Republic of Rwanda is a safe country. The measure means that the judgment of Parliament displaces the Judgment of the Supreme Court three weeks ago.

Section (4) says that it recognises that the Parliament of the United Kingdom is sovereign, and the validity of an Act is unaffected by international law.

Recognised by whom we ask?

Everybody recognises that these are fundamental principles and to put it into statute now does not give them greater authority.

Section (5) defines a safe country as: “a country to which a person may be removed from the United Kingdom in compliance with all of the United Kingdom’s obligations under international law.”.

Subsection (6) then defines international law in the broadest possible terms.

What can this legislation do?

The most this legislation can do is to stop the Courts of the United Kingdom finding removals to Rwanda unlawful.

Clause 2 of the legislation explains how these principles are meant to be applied.

“Every decision maker must conclusively treat the Republic of Rwanda as a safe country”.

What it says is that UK Immigration Officers are answerable to the Home Secretary as well as to the Courts in the UK that may hear challenges to their decisions.

Subsection (3) explains that the Court or Tribunal must not consider a review or an appeal against the decision of the Secretary of State or of an Immigration Officer relating to the removal of a person to the Republic of Rwanda to the extent that a review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country. This does not mean that these provisions repeal the Human Rights Act 1998. It still governs other legislation. It means that a Court in the UK, when deciding whether Rwanda is safe, must take no notice of case law developed by the Human Rights Court in Strasbourg and the Courts will not be allowed to read down the legislation to make it compatible with the human rights.

Are there any exceptions?

Clause (4) includes an exception. It says that if there is compelling evidence relating specifically to a person’s particular individual circumstances, that Rwanda is not a safe country for the person in question, then a decision maker does not have to treat Rwanda as safe. The remainder of Clause 4 narrows this exception down further. There is a comparable exception relating to serious harm in the Illegal Migration Act 2023 which is not yet in force. These provisions may have been added to ensure compliance with Article 6 of the Human Rights Convention which provides for access to a Court.

Clause (5) acknowledges that a person facing removal to Rwanda can still make an urgent application to the European Court of Human Rights. An applicant would have to exhaust domestic remedies first but if those remedies no longer exist, there would be no need to go through the motions. The Human Rights Court may issue what it calls interim measures, and as far as the Court is concerned, these are binding on the State concerned. An interim measure was used to block flights to Rwanda in the summer of last year. Again, it is for the Minister of the Crown to decide whether the United Kingdom will comply with the interim measure. The Illegal Migration Act 2023 contains something similar.

Can this legislation be challenged on the grounds that it is unconstitutional?

It is conceivable that the Rwanda Bill will bring to light what was, until now, a hypothetical question about the relationship between Parliament and the Courts.