Brad Blitz unpicks the legal and political logic for deporting desperate individuals to the central African nation

“I accept that the fact of removal to Rwanda will be onerous,” said High Court Justice Jonathan Swift, as he ruled that the Home Office’s planned deportation flight to Rwanda could go ahead for some 31 asylum-seekers. 

Challenging Raza Husain QC for the claimants, who argued that the proposed deportation was unsafe and based on aspiration, Swift argued that the Home Office had set out a policy based on a Memorandum of Understanding (MoU) with the Government of Rwanda, which while unenforceable, included information about arrangements for transfer and access to the system of asylum in Rwanda.

The judge then offered his own opinion, concluding that: “it is unlikely that persons transferred would be refused access to the system of asylum. After all, it is the very purpose of the MoU (for asylum claims to be processed) in Rwanda.”

Similar assertions have been made by Conservative politicians, including Dover MP Natalie Elphicke ,who pointed to a package of assistance dedicated to supporting deported asylum seekers.

On the basis of facts alone, this is nonsense.

First, the issue is not about being refused access, but about the nature of any such access, and the quality of asylum protection available. There is currently no package of assistance on offer, just a series of unenforceable promises.

Second, the UK has no experience of follow-up post removal, currently offers no services to those it has deported to third countries, and does not collect data on those removed to third countries. They just disappear. 

Third, Rwanda has limited expertise to offer the UK. While Rwanda is currently hosting some 127,112 registered persons of concern, these are overwhelmingly from the neighbouring countries of the Democratic Republic of Congo and Burundi who are housed in refugee camps. Even if camps are open, the provision of asylum support is limited, and the process of seeking asylum in Rwanda is especially slow.

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The few specifics included in the MoU raise further questions about the operation of the scheme. The Home Office mentions the Emergency Transit Mechanism and the Gashora Transit Centre but this currently only applies to African asylum-seekers. The UNHCR currently has no published data asylum-seekers from Afghanistan and Iran in Rwanda, though nationals of these countries are among those targeted for removal by the Home Office.

What we do know is that some 260 Eritreans and other east Africans from Somalia, Sudan, Ethiopia and South Sudan, have been resettled from Rwanda most of them to Sweden, and just over a quarter to Canada. A handful were sent on to Norway, France and Belgium, countries with which the UK once cooperated.

While Swift’s decision leaves open the door to appeal, and recognises the possibility of a judicial review finding the Home Office’s policy unlawful, it exposed a number of biases, not least the judge’s own conclusions about what is and is not ‘onerous’ – a significant understatement of the harm that may result from deportation, as noted by the United Nations High Commissioner for Refugees (UNHCR).

If this decision is not corrected on appeal, it will surely leave the Government open to claims of human rights violations, specifically ECHR Article 3 claims on the prohibition of torture, and “inhuman or degrading treatment or punishment”.


Last Recourse

One loophole of the UK-Rwanda agreement concerns the provision in the MoU that anyone unlawfully removed could be brought back to the UK. Yet, as we saw in the Bigzad case, concerning an Afghan man who was hurriedly and unlawfully forced onto a plane to Kabul at the insistence of then Home Secretary Amber Rudd, it is not easy to correct past wrongs.

It is difficult enough to bring people back to the UK even when you have a large military and diplomatic presence, which is not the case for Rwanda. As for those facing removal as early as Tuesday, we are now left with a series of untested assumptions, which appear to have been accepted by the judge at face value.

But will returnees lend themselves to the Rwandan authorities and the asylum system, or will they flee? Will the promises of integration in Rwanda be upheld? Evidence from a similar experiment led by Israel – which failed – suggests otherwise.

After initiating a voluntary departure programme, Israel concluded agreements with Rwanda and Uganda, to remove refused asylum seekers, again with the promise of documentation and access to Rwanda’s asylum system. Yet, Amnesty concluded that such promises were empty, and that these former deportees were only given a temporary migration status which left them at risk of detention, unable to work, and at risk of refoulement to their country of origin.

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Research conducted by Shahar Shoham, Liat Bolzman and Lior Birger found that returnees were denied the opportunity to apply for asylum in Rwanda. Not surprisingly, the deportees opted to leave.

With the first removal flight scheduled for Tuesday, activists are pinning their hopes on the Court of Appeal overturning Swift’s decision. Yet, I would caution against such optimism, since the appeal may only deal with the judge’s decision and not the fact that critical evidence from UNHCR and other human rights authorities was deemed less relevant than the Home Office’s paper promises.

Further, we do not need reminding how this Government, and previous governments, repeatedly violated the rule of law to pursue their agenda. As we saw with the Bigzad case, a court decision may not stop a determined minister from removing unwanted asylum seekers, or blocking their return, even after three High Court orders and the possible charge of contempt of court.

Yet, there may be other options.

Under Rule 39 of its Rules of Court, the European Court of Human Rights may issue interim measures where there is an imminent risk of irreparable damage. The procedure has been used in similar cases to suspend a deportation order at the last minute. Now would seem to be a good time for the lawyers to fax a 10-page request to Strasbourg.

Brad Blitz is Professor of International Politics and Policy at UCL

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