Dr Conor Casey is Senior Fellow of Policy Exchange’s Judicial Power Project and Senior Lecturer in Law, University of Surrey. Professor Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
While the House of Commons debates the Safety of Rwanda (Asylum and Migration) Bill, the House of Lords International Agreements Committee is holding an inquiry into the UK-Rwanda Agreement for the Provision of an Asylum Partnership (Rwanda Agreement).
The Agreement is intended to remove the risk that Rwandan officials will make mistakes in processing asylum claims of those asylum seekers that are transferred to Rwanda from the UK, which might lead them to wrongly send a genuine refugee back to an unsafe country.
Specifically, the inquiry is considering how “the Agreement protects persons relocated to Rwanda, and whether it deals with the concerns raised by the Supreme Court.”
It is common ground that Parliament should only enact the Bill if it is satisfied by the Agreement. Much of the written evidence submitted to the House of Lords Committee by various academics and NGOs, as well as the Bar Council and the Law Society, is highly critical of both the Agreement and the Bill that the Government hopes, once enacted, will enable the Agreement to be enforced expeditiously.
The submissions critical of the Agreement and the Bill are awfully similar. Amnesty International, JUSTICE, the Immigration Law Partner’s Association, and the Public Law Project amongst others all agree that the Agreement should be rejected because its terms are “very likely to be insufficient to overcome the concerns of our Supreme Court”, namely that there is a real risk that the Rwandan asylum system will mishandle asylum claims and wrongly send some genuine refugees back to their country of origin where they will face mistreatment.
Several submissions also argue that the Agreement and Bill threaten the rule of law by “seeking to use law to change fact” and thereby undermine the “constitutional role of the courts.” Others object that the Agreement and Bill are aimed at “effectively overturning the [Supreme Court’s] judgment, and preventing the courts revisiting the question the judgment had resolved”.
These objections to the Agreement and Bill are misconceived and should not weigh heavily in Parliament’s deliberations. They all share the false premise that it is constitutionally problematic that neither the Agreement nor the Bill leaves it to the courts to decide whether the new Treaty is sufficient to make Rwanda a safe country.
That is, the submissions object to the fact that if the Agreement is ratified and the Bill enacted the lawfulness of removals to Rwanda will not be conditional on the outcome of future litigation – litigation in which the Supreme Court would be invited by claimants, with the support of interested parties such as the UNHCR, to cast doubt on whether Rwanda will honour the Treaty.
Far from being problematic, it is perfectly proper for Parliament to agree with the Government that there are good reasons to expect Rwanda to honour its treaty obligation (which will be monitored and supported by UK officials), so that persons sent to Rwanda will not be at any real risk of being removed to an unsafe third country.
Nothing in the Agreement or the Bill ignores the judgment of the Supreme Court or “use[s] law to change fact”, as one submission complained. While the Government has said that it disagrees with the Supreme Court’s conclusion – preferring the assessment of the Divisional High Court – the Agreement does not ignore the Supreme Court’s conclusions or its treatment of the evidence.
Rather, the Government has taken the view that the evidential foundation for the risk assessment made by the Supreme Court has been superseded as a result of a period of diplomatic negotiation and the agreement of a legally binding international treaty. Importantly, the Agreement categorically rules out onward transfer of anyone, including a failed asylum seeker, from Rwanda to any country other than the UK. This directly addresses the systemic risk on which the Supreme Court’s judgment focuses.
Parliament does not flout the rule of law or any other part of our constitution in considering the Government’s arguments that Rwanda can be considered a safe country, or in enacting legislation that settles authoritatively that asylum-seekers may be removed to Rwanda for their claims to be processed and for settlement, without the matter first having to revert to the courts for another assessment. Legislating in this way displays no disrespect, unconstitutional or otherwise, for the jurisdiction of the Supreme Court or for the findings the Court reached in its recent judgment.
What would be inappropriate, in constitutional and practical terms, would be for Parliament and Government to think that they ought to leave to the courts the ultimate responsibility for making the final and conclusive decision, in the course of judicial proceedings, about whether Rwanda is to be trusted or whether the Agreement is likely to prove to be a sufficient guarantee.
Both of which are matters of political judgement, not questions of fact. To insist that judges must have the final say would displace Parliament’s proper role as the ultimate decision-maker in our constitution.
Dr Conor Casey is Senior Fellow of Policy Exchange’s Judicial Power Project and Senior Lecturer in Law, University of Surrey. Professor Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
While the House of Commons debates the Safety of Rwanda (Asylum and Migration) Bill, the House of Lords International Agreements Committee is holding an inquiry into the UK-Rwanda Agreement for the Provision of an Asylum Partnership (Rwanda Agreement).
The Agreement is intended to remove the risk that Rwandan officials will make mistakes in processing asylum claims of those asylum seekers that are transferred to Rwanda from the UK, which might lead them to wrongly send a genuine refugee back to an unsafe country.
Specifically, the inquiry is considering how “the Agreement protects persons relocated to Rwanda, and whether it deals with the concerns raised by the Supreme Court.”
It is common ground that Parliament should only enact the Bill if it is satisfied by the Agreement. Much of the written evidence submitted to the House of Lords Committee by various academics and NGOs, as well as the Bar Council and the Law Society, is highly critical of both the Agreement and the Bill that the Government hopes, once enacted, will enable the Agreement to be enforced expeditiously.
The submissions critical of the Agreement and the Bill are awfully similar. Amnesty International, JUSTICE, the Immigration Law Partner’s Association, and the Public Law Project amongst others all agree that the Agreement should be rejected because its terms are “very likely to be insufficient to overcome the concerns of our Supreme Court”, namely that there is a real risk that the Rwandan asylum system will mishandle asylum claims and wrongly send some genuine refugees back to their country of origin where they will face mistreatment.
Several submissions also argue that the Agreement and Bill threaten the rule of law by “seeking to use law to change fact” and thereby undermine the “constitutional role of the courts.” Others object that the Agreement and Bill are aimed at “effectively overturning the [Supreme Court’s] judgment, and preventing the courts revisiting the question the judgment had resolved”.
These objections to the Agreement and Bill are misconceived and should not weigh heavily in Parliament’s deliberations. They all share the false premise that it is constitutionally problematic that neither the Agreement nor the Bill leaves it to the courts to decide whether the new Treaty is sufficient to make Rwanda a safe country.
That is, the submissions object to the fact that if the Agreement is ratified and the Bill enacted the lawfulness of removals to Rwanda will not be conditional on the outcome of future litigation – litigation in which the Supreme Court would be invited by claimants, with the support of interested parties such as the UNHCR, to cast doubt on whether Rwanda will honour the Treaty.
Far from being problematic, it is perfectly proper for Parliament to agree with the Government that there are good reasons to expect Rwanda to honour its treaty obligation (which will be monitored and supported by UK officials), so that persons sent to Rwanda will not be at any real risk of being removed to an unsafe third country.
Nothing in the Agreement or the Bill ignores the judgment of the Supreme Court or “use[s] law to change fact”, as one submission complained. While the Government has said that it disagrees with the Supreme Court’s conclusion – preferring the assessment of the Divisional High Court – the Agreement does not ignore the Supreme Court’s conclusions or its treatment of the evidence.
Rather, the Government has taken the view that the evidential foundation for the risk assessment made by the Supreme Court has been superseded as a result of a period of diplomatic negotiation and the agreement of a legally binding international treaty. Importantly, the Agreement categorically rules out onward transfer of anyone, including a failed asylum seeker, from Rwanda to any country other than the UK. This directly addresses the systemic risk on which the Supreme Court’s judgment focuses.
Parliament does not flout the rule of law or any other part of our constitution in considering the Government’s arguments that Rwanda can be considered a safe country, or in enacting legislation that settles authoritatively that asylum-seekers may be removed to Rwanda for their claims to be processed and for settlement, without the matter first having to revert to the courts for another assessment. Legislating in this way displays no disrespect, unconstitutional or otherwise, for the jurisdiction of the Supreme Court or for the findings the Court reached in its recent judgment.
What would be inappropriate, in constitutional and practical terms, would be for Parliament and Government to think that they ought to leave to the courts the ultimate responsibility for making the final and conclusive decision, in the course of judicial proceedings, about whether Rwanda is to be trusted or whether the Agreement is likely to prove to be a sufficient guarantee.
Both of which are matters of political judgement, not questions of fact. To insist that judges must have the final say would displace Parliament’s proper role as the ultimate decision-maker in our constitution.