By Miranda Butler.
The UK-Rwanda memorandum of understanding on asylum processing is now available. It sets out the terms of the agreement between the countries at a high level but provides some insight into how this scheme is supposed to work.
Before removal
Importantly, the UK has committed to undertaking an ‘initial screening’ of asylum seekers. How this will compare to current asylum screening interviews is yet to be seen but it is clear that the UK is intended to identify vulnerabilities and inform the Rwandan authorities about them.
Given the well-recognised shortcomings of such Home Office screenings, including the widespread failures to identify serious mental and physical health problems as well as trafficking victims and torture survivors, there are serious questions about how effective this expedited system will be.
Many new arrivals need legal advice and expert evidence to demonstrate their vulnerabilities to the Home Office’s satisfaction. I anticipate a swift legal challenge if there is no automatic right to such assistance for those facing removal to Rwanda.
Merely raising an asylum claim at the initial screening will not be enough to prevent removal: the Nationality and Borders Bill, when passed, will make such claims inadmissible. Human rights claims may be enough to prevent removal but this will no doubt lead to numerous urgent out-of-hours judicial review applications, as undesirable as that is for all involved.
Under paragraph 3.2, Rwanda has to approve all transfer requests prior to relocation. This may well add delay and uncertainty to the process. It also means that the system is fundamentally discretionary, open to advocacy and political pressure on both sides.
Unsurprisingly, the UK will make the removal arrangements:
6.1 The United Kingdom will arrange the Relocated Individual’s transport to Rwanda and will ensure that all the necessary authorisations have been obtained from the relevant authorities of the United Kingdom, any countries of transit and Rwanda in relation to the traffic of commercial or chartered flights or other means of transport.
6.2 The United Kingdom will assume responsibility for the safe transportation of Relocated Individuals to Rwanda by aircraft, including the provision of escorts as necessary.
So decisions about whether someone is fit to fly will be made (and challengeable) in the UK. Again, practitioners will want to know whether and how they will be able to take instructions on challenges like this.
After removal
Those removed in Rwanda will be accommodated (apparently for free) by the Rwandan government. Rwanda has agreed to provide accommodation that is ‘adequate to ensure the health, security and wellbeing’ of those relocated. The MoU stipulates that asylum seekers brought to Rwanda will not be detained in this accommodation (although the Home Office’s own changing narrative about whether asylum seekers are detained in the Napier and Penally camps raises questions about the genuine liberty of those removed).
8.2 A Relocated Individual will be free to come and go, to and from accommodation that has been provided, at all times, in accordance with Rwandan laws and regulations as applicable to all residing in Rwanda.
There is nothing specific in the agreement about those removed being able to access healthcare, financial support, or other services. Nor does it explain whether asylum seekers will be able to work. These are pressing questions which, even at a high level, we might have expected the parties to agree — especially as Rwanda does not provide universal healthcare free at the point of use.
Rwanda also agrees to treat those relocated in accordance with the Refugee Convention and with ‘international standards’. The UK government insists this agreement is compatible with the Refugee Convention which, if correct, means there’s little to stop Rwanda sending asylum seekers to another third country. This sort of high-level agreement depends on a sustained commitment to human rights in both countries, which sadly is not reflected in reality.
Those relocated should have access to legal assistance in Rwanda throughout their asylum claim:
Rwanda will ensure that…
9.1.2 each Relocated Individual will have access to an interpreter and to procedural or legal assistance, at every stage of their asylum claim, including if they wish to appeal a decision made on their case…
But the MoU does not state whether such legal assistance will be free, nor does it stipulate any minimum requirements.
Those recognised as refugees in Rwanda will be granted the same level of support and accommodation in the country as they had while their claim was being processed. There is no clear time limit on their entitlement to support and nothing about other conditions of stay.
Those refused asylum may be returned to their countries of origin or can try to obtain permission to stay some other way under Rwandan immigration laws, if possible.
Rwanda agrees to take all reasonable steps to return people to the UK if the British authorities are obliged to do so:
11.1 Following a request made by the United Kingdom, Rwanda will take all reasonable steps in accordance with international human rights standards to make a Relocated Individual available for return to the United Kingdom should the United Kingdom be legally obliged to facilitate that person’s return.
Clearly the Home Office anticipates at least the possibility of UK courts making ‘bring back’ orders.
Under paragraph 16 of the agreement, the UK has agreed to resettle a portion of Rwanda’s ‘most vulnerable refugees’. This raises the question of how we can be confident that Rwanda can care for vulnerable asylum seekers being sent from the UK. It reflects the surreal and inhumane two-tier system the Home Office is creating: performative cruelty for those arriving in the UK without permission, justified by some limited and restrictive routes for resettled refugees.
This is against both the spirit and the letter of the Refugee Convention.
Grounds for concern already
Whichever country is involved, offshoring is legally unjustifiable and reflects the broader failure on the part of the Home Office to comply with the requirements of international law to welcome refugees regardless of their method of entry.
Nevertheless, the choice of Rwanda is concerning given its history of human rights violations, including towards asylum seekers. Only last year, the UK expressed concern over ‘continued restrictions to civil and political rights and media freedom’ in Rwanda, noting allegations of extrajudicial killings, deaths in custody and torture. It recommended that the Rwandan government ‘screen, identify and provide support to trafficking victims, including those held in Government transit centres’. That such a recommendation is necessary does not bode well for the commitment enshrined within the MoU to support trafficking victims sent from the UK.
It remains to be seen how the MoU will be reflected in policy and practice, but there is good reason to be concerned about the legality of this agreement and the impact it will have on vulnerable asylum seekers. No doubt there will be both individual and systemic legal challenges to this offshoring plan, brought by hardworking, underpaid legal aid lawyers who — far from being ‘politically motivated’ — know the human cost of government illegality.
Miranda Butler is a barrister at Landmark Chambers practising in all areas of immigration, with a particular focus on asylum and human rights.
This post was originally published by Free Movement on 14th April 2022.