A desperate act? Implications of the new safety of Rwanda bill

The core concern of the Supreme Court was the risk of people being sent back from Rwanda to countries where they may face persecution (‘refoulement’). This breaches a fundamental principle enshrined in both domestic and international law, including the Refugee Convention.

In the ensuing weeks, the government has raced forward with a two-track response: a new treaty with Rwanda designed to circumvent the Supreme Court’s concerns, and then, for good measure, a new bill aimed at riding roughshod over the Supreme Court altogether.

Yet the wheels now appear to be coming off the government’s new plan. The new safety of Rwanda bill explicitly requires the domestic courts to treat Rwanda as a safe country, regardless of the facts of the matter. It also disapplies parts of the Human Rights Act and allows the government to disregard interim measures granted by the European Court of Human Rights (ECHR) – ie urgent orders issued to prevent the risk of serious and irreversible harm while proceedings are ongoing – which were used to prevent flights from taking off to Rwanda last year.

The legislation is therefore courting controversy with parliamentarians who worry that it is an attempt to both breach international law and reverse a simple fact of reality determined by the Supreme Court only a matter of weeks ago.

At the same time, hardliners – including recently resigned immigration minister Robert Jenrick – have argued that the bill is flawed because section four allows for individuals to challenge their removal to Rwanda on the basis that it is not safe for them rather than not safe in general. They are concerned that this could in theory mean that the courts prevent the removal of many people on individual grounds, scuppering the intended deterrent effect of the Rwanda policy.

The government has retorted that the scope for blocking removal under these provisions is ‘exceptionally narrow’ and that if they were removed then the UK would be in breach of international law, which would risk Rwanda pulling out of the deal altogether. But backbenchers are planning to ignore such warnings and push for a tougher approach regardless.

As MPs prepare to vote on the second reading of the bill today, what might it mean in practice? Over the summer, IPPR published an analysis of the different scenarios facing the UK asylum system. Here we have attempted to set out an updated scenario analysis, exploring the main possibilities facing the government as it attempts to keep its Rwanda plan afloat. We have identified four main scenarios and their implications.

Scenario one: The bill fails in parliament (likelihood: medium)

With the government facing potential rebellions from both moderates and hard-liners within the Conservative party, the parliamentary arithmetic could be challenging. Even if the bill does find sufficient support at the second reading, it will face subsequent moves to amend the legislation to tighten the scope for removals to be challenged in the courts.

It could also face trouble in the Lords, which is unlikely to be impressed by the bill’s cavalier approach to international law, and which may be particularly wary of further amendments by hardliners. With no mention of Rwanda in the 2019 Conservative manifesto, the Lords are not prohibited by the Salisbury Convention to vote down the bill. And there is not enough time left before the general election to override the Lords via the Parliament Act.

Ultimately, however, there is still a reasonable chance the bill will succeed: the government has a large majority in the Commons, and the Lords may be disinclined to block it entirely.

But if it is the case that the flagship legislation cannot be passed, then – aside from the significant political fallout – the Rwanda plan may have reached a dead end. This is because the new UK-Rwanda treaty published last week would inevitably be tested in the courts before any flights could take off. And while the treaty is an attempt to ‘fix’ the issues raised by the Supreme Court, it is unlikely to pass muster.

The core change in the treaty is that asylum seekers who are refused refugee and humanitarian protection status will nevertheless not be removed from Rwanda and their status will be regularised; this in theory eliminates the risk of refoulement. But the Supreme Court’s concern was not simply about the formal possibility of removal; it was also about the possibility of removal in practice.

For instance, the justices raised the precedent of the Israel-Rwanda deal. This deal in principle allowed for asylum seekers in Israel to move to Rwanda, where the Rwandan government gave assurances that people’s human rights would be protected. In reality, many were smuggled out of the country immediately upon arrival. The Supreme Court is therefore unlikely to be convinced that a few more words on a page will fundamentally change the conditions in Rwanda to prevent the risk of refoulement.

If the new legislation fails, then, the government could once again be on a collision course with the courts – and it is hard to see, without evidence of sustained change in the functioning and governance of the Rwandan asylum system – that it has much hope of changing their mind.

Scenario two: The bill is passed but the government backs down (likelihood: low)

Assuming the bill is passed, the government will likely seek to expedite its first flights to Rwanda. But as with the last attempt to deliver its Rwanda plan, the government could be issued with an interim measure by the ECHR preventing flights from taking off on the basis of a real risk of irreversible harm.

This time the government will have given itself the power under the Rwanda legislation to disregard the interim measure completely. But this raises the question: will it do so? If it were to ignore the ECHR, then this would be a flagrant breach of international law.

For the current government, this might simply be a bridge too far. But if it were to comply, then the government could be back to where it started: unable to let flights take off until the judicial process – including presumably proceedings before the Strasbourg court – had reached a conclusion. In such a scenario, the government would once again be at an impasse.

Scenario three: The bill is passed but flights are stymied by the courts (likelihood: medium-high)

Suppose the bill is passed and no interim measure impedes flights from taking off: what then? With many individuals understandably distraught about the risk of removal to Rwanda – a country where for the most part they have no ties and no desire to go – there are likely to be a series of legal challenges.

People notified that they are to be removed are in particular expected to try to argue that Rwanda is not a safe place for them on the basis of their individual circumstances. Moreover, they are also likely to argue that they face a ‘real, imminent and foreseeable risk of serious and irreversible harm’ if sent to Rwanda, in order to be granted an interim remedy stopping their removal (in line with section 4(4) of the bill).

As already noted, the government has asserted that only in exceptional circumstances will individuals be able to use such arguments to stop removal. But the reality may be different: the courts could interpret these provisions more expansively than foreseen, preventing and delaying many removals.

This could mean the government struggles to fly more than a handful of people to Rwanda. With a likely media and political backlash, the plan could swiftly descend into chaos. Ultimately, the government could have a Pyrrhic victory: it may just about be able to send a flight to Rwanda, but in the process expose its plan as shambolic, undermining any hope it has to use the new treaty as a deterrent effect for people crossing the Channel in small boats.

Scenario four: The bill is passed and flights take off (likelihood: low-medium)

Despite these multiple obstacles, there is a chance that (a) the bill is passed by parliament broadly unscathed, (b) the government ignores any interim measure which may be granted by the ECHR, and (c) the courts interpret section 4 of the bill narrowly. Under these conditions – and assuming no further complications – the government could start to enact removals to Rwanda in the new year. This would presumably coincide with the full implementation of the Illegal Migration Act, which renders all claims from people irregularly entering the UK inadmissible to the asylum system.

Yet even under this ‘best-case’ scenario for the government, the prospects for success are low. As IPPR previously argued, it will be hard to implement the Rwanda plan at scale. The limits of the detention estate and the UK’s capacity for enforced removals are one set of constraints. Another is the Rwandan system itself. While the government has claimed the scheme is uncapped, in reality it is unlikely that Rwanda will have the capacity to take thousands of people on a monthly basis – only 96 asylum decisions were made by the Rwandan government in 2022, while more than 45,000 people arrived by small boat in the UK.

In practice, then, the number of arrivals is likely to outpace removals, creating a ‘perma-backlog’ of people trapped in limbo in the UK, who cannot be removed and whose asylum claims cannot be processed. This would be extremely costly for the government – who would be obliged to accommodate this group indefinitely – while undermining any attempt to create a deterrent effect.

Moreover, the legislation would not prevent a case going before the ECHR. The bill therefore simply kicks the can down the road, paving the way for a future showdown between the UK government and the Strasbourg court.

Under any of the scenarios presented here, there is therefore little prospect of success for the government on its Rwanda policy. As the Commons prepares to vote on yet another piece of primary legislation designed to ‘stop the boats’, this appears to be becoming increasingly clear to restive MPs.

But there are alternative approaches available. As IPPR set out earlier this month, a pragmatic three point plan to address the Channel crossings would involve developing targeted safe routes to divert people from dangerous crossings; negotiating new deals on asylum with France and the EU; and reforming the UK’s system of asylum processing, returns and accommodation. Ironically, the government is making progress on the latter by doubling the number of asylum caseworkers in a year and sharply increasing productivity; but this is all drowned out by the chaotic Rwanda plan.

The outcome of the Supreme Court result last month should have been a turning point for the Rwanda plan. But as things stand, the government appears to be trapped in a mess of its own making.