Sending all unwanted migrants to Rwanda: when the United Kingdom flouts the right of asylum

On December 19, the "dream" of Suella Braverman, the British Interior Minister, was - almost - realized: the one who dreamed of see a first plane take off before December 25 for Rwanda carrying on board migrants who entered irregularly on English soil will not have received this "Christmas present", but at the very least it will have had the satisfaction of hearing the London High Court validate legal feasibility of the device.

Expected far beyond the borders of the United Kingdom and the circle of specialists in migration issues, this judgment bears witness to the stakes of a reckless mechanism by which the British government intends to show its voters – because this will probably be its main effect – that the "control of the borders", promised during Brexit, is on its agenda, and that there are therefore still a few reasons to vote "conservative" in the next elections.

What does this agreement provide?

The official ambition of this "memorandum of understanding" is to limit the arrival on English territory of foreigners without the right to enter and stay there. This is to discourage crossings of the Channel on makeshift boats, which have multiplied in recent months to reach more than 40 in 000.

from a memorandum of understanding signed on April 13, 2022, the system provides for the transport to Rwanda of asylum seekers who have arrived in the United Kingdom “illegally or by dangerous or unnecessary methods from safe countries” and who cannot be admitted to English territory. After a "screening" (brief examination) of their situation, these people, if they fall within the scope of the agreement, will be sent to Rwanda - whatever their nationality, and even if they have never had any contact whatsoever with that State. Most of those who crossed the English Channel in 2022 on makeshift boats are from elsewhere from Albania, Afghanistan or Iran.

Rwanda – United Kingdom: controversial agreement on migrants, TV5 Monde, June 11, 2022.

Once in Rwanda, this State will be responsible for welcoming them and examining their asylum application. If it prospers, they will be allowed to stay in Rwanda, with little or no possibility of returning to the United Kingdom. If the application is rejected, Rwanda will have to grant the persons thus rejected a residence permit on another basis, or send them back to a third country which would accept them. Finally, this agreement is defined by its drafters as legally “non-binding” and non-appealable.

This will not have prevented the European Court of Human Rights from asking, the June 14, 2022, the emergency suspension of the first flight planned on this basis and, on December 19, the English High Court to validate the agreement.

A legally problematic device

The system devised by the United Kingdom contributes to “these apo-politics”, intended to “keep at a distance” migrants from Western territories.

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Australia was a forerunner by entrusting the examination of asylum applications to Nauru; the EU followed in the mid-2010s by facilitating the return to Turkey of persons arriving in an irregular situation on the Greek coasts; the Denmark is thinking about it. The United Kingdom is however the first to entrust to a third State, in general, not only the task of examining asylum applications, but also of receiving protected or rejected persons on its territory. Such a device raises a number of legal difficulties, as well as the in particular noted the Office of the United Nations High Commissioner for Refugees (UNHCR).

One of the main ones is the qualification of Rwanda as a “safe country”. Under Article 33§1 of the 1951 Geneva Convention relating to the status of refugees and customary international law, States cannot return foreigners, even in an irregular situation, to a State where there would be "a risk to their life or freedom" for one of the grounds provided for in the Convention (political opinions, race or nationality, religion or membership of a social group).

Moreover, under Article 3 of the European convention of human rights, to which the United Kingdom has not ceased to be a party, torture and inhuman or degrading treatment are prohibited, which also prohibits the removal of foreigners to countries where there is a risk of such treatment. It is also prohibited to return foreigners to states with which they have no connection.

Conversely, removal is therefore possible to States – known as “safe” – where such a risk does not exist. It is still necessary to ensure that this is indeed the case: this supposes examining the individual situation of the distant foreigner, ensuring that the qualification of a safe State is well founded, and that the foreigner has a connection with that state. However, in the present case, none of these criteria is fulfilled.

Any foreigner may be sent back to Rwanda. The examination of the individual situation will generally take place by telephone, while the foreign national is in detention. As for Rwanda, it is far from having an asylum system, justice and a government guaranteeing that people transferred from the United Kingdom are not subjected to such treatment. Known for its arbitrary detentions and extra-judicial executions, Rwanda has recently distinguished itself again by the arrest, detention - and even summary execution for twelve of them ! – refugees protesting against their insufficient access to the most basic services. The country, moreover, is not hardly active, to say the least, in the fight against discrimination towards LBTQ+ people.

Why Rwanda?

For what reasons could the United Kingdom, with a population of 67 million, fifth world power, well known for its founding texts in the protection of freedoms, decide to entrust Rwanda with 13 million inhabitants, the 144th largest economy in the world and a poor guarantor of human rights, the task of managing asylum issues for them? And what interest, for this small African country, to accept this " asylum deal”?

From the British point of view, the agreement aims to demonstrate that the Conservative government is working to fulfill one of the Brexit promises: to limit so-called irregular migration on English territory. It is unlikely that the agreement will actually achieve this – the government has not ventured to quantify the number of people who could be affected. As often in the matter, political display seems more valuable than practical efficiency – which is probably something to be happy about in this case, as the agreement is “appalling” according to the words of King Charles III himself.

From the Rwandan point of view, the agreement is a nice economic and diplomatic coup. Economic, first, because it includes the payment by London of 120 million pounds sterling in development aid, to which must be added 12 pounds per relocated foreigner. Diplomatic, then, because the agreement constitutes for Kigali an instrument of pressure on the United Kingdom, both in their bilateral relations - Rwandan President Paul Kagame has already used the agreement as a pretext to request the extradition of one of its nationals – only in a more general context, where London's support could be invaluable – think for example of the accusations of Rwandan support for the M23 rebels in the context of the conflict in the DRC.

By signing the Geneva Convention, participating in the 2018 Global Compact on Refugees, the United Kingdom has undertaken to cooperate on asylum in such a way as to promote the protection of refugees, the sharing of responsibilities between States, and the guarantee of the rights of people in need of international protection: London does not have any clearly not finished with the renunciation of its international commitments.

Thibaut Fleury Graff, Professor of international law, Paris-Saclay University

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.

Image credit: Shutterstock / Nicolas Economou