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Expert blog: The Safety of Rwanda Bill is futile in legal terms, and could be a dangerous road for the UK

As the government publishes its Safety of Rwanda (Asylum and Immigration) Bill, Professor Tom Lewis, Nottingham Law School, explores the legal issues, and why it could ultimately put the UK in a difficult position when it comes to its international obligations.

    Migrants on a boat on their way to Europe
    The Rwanda asylum scheme is part of the government's attempts to stop migrant 'small boats'

    The government has published its Safety of Rwanda Bill in response to the Supreme Court’s judgment holding that its Rwanda scheme is illegal, and hot on the heels of a new treaty with that country seeking to address the problems identified in the judgment.

    Already  –  with the resignation of the immigration minister Robert Jenrick and critical comments from the former Home Secretary, Suella Braverman  –  it is apparent that the measure has not gone far enough to satisfy some of those within the Conservative party.

    There are very many controversial aspects of the Bill that are worthy of comment but perhaps two of the most striking are as follows: on the one hand its probable ultimate futility in legal terms and, on the other, the dangerous path down which it has the potential to lead the UK.

    The Bill deems Rwanda to be a safe country and excludes the jurisdiction of the UK courts to hear claims challenging removals to Rwanda on the grounds that it is not so. The only exception is where a person’s ‘particular individual circumstances’ mean that they face a real, imminent and foreseeable risk of serious and irreversible harm.

    Inaugural Lecture - Tom Lewis on 25 April
    Professor Tom Lewis, Nottingham Law School

    This ‘ouster clause’ itself is extremely controversial since an absolutely central component of constitutional democracy and the rule of law is the ability to challenge the legality of state action through independent courts – and especially so when there exists a risk of potential violations of fundamental human rights. It will be interesting to see how the UK courts react to this attempt to oust their jurisdiction.

    But the Bill also expressly ‘disapplies’ the Human Rights Act 1998 (the HRA) in relation to Rwanda claims. The HRA is the parliamentary statute that makes the human rights contained in the European Convention on Human Rights (ECHR) enforceable in UK courts.

    In fact, this disapplication, whilst controversial, has always been constitutionally possible within the terms of the HRA itself. When parliament passed the HRA it went to very great lengths to explicitly preserve its own sovereignty – its right to make laws in the future which go against the ECHR – if it is determined to do so, and says so in clear words.

    Indeed, the Safety of Rwanda Bill contains an opening statement from the Foreign Secretary James Cleverly – required by section 19(1)b of the HRA itself in such circumstances – to the effect that he cannot say for certain that it is compliant with the ECHR but wants to push ahead with it nonetheless.

    However – and this is (one of) the rub(s) as far as the government is concerned – if, as a result of the Bill, an asylum seeker is denied a hearing or a remedy within the UK then that person must still be able to take their case to the European Court of Human Rights at Strasbourg. This is because the UK is a signatory of the ECHR which guarantees a right of ‘individual petition’ to all those within its jurisdiction, once they have gone through the legal avenues available domestically.

    Since the Bill blocks-off such legal avenues that person would be able to make such an application to the European Court in fairly short order. If the European Court finds there to be a violation of Convention rights then, by virtue of the fact that the UK is a signatory of the ECHR, it will required to abide by that judgment as a consequence of its international law obligations.

    This is the point at which the UK government would be forced to either ‘stick or twist’. It would either need to comply with the European Court’s judgment, thus essentially rendering futile the Bill’s provisions disapplying the HRA in the UK. Or it would, at this point, have to consider the nuclear option of withdrawing from the ECHR itself – and thereby join the exclusive pariah club of Russia and Belarus as the only two European states not in the Convention system.

    Professor Tom Lewis, Director of Nottingham Law School’s Centre for Rights & Justice.

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    Published on 7 December 2023
    • Category: Press office; Research; Nottingham Law School