By Zachary Partnoy
London, like any metropolis, can sometimes be a dangerous place. Knife crime, the city’s scariest affliction, has been on the rise in recent years. But ultimately, London is a safe and desirable place to be; its crime rates pale in comparison to many comparably sized cities in less developed countries. Indeed, one could do worse than to live anywhere in the United Kingdom. That’s why, as many countries in the Middle East and North Africa reel in the face of political turmoil, ethnic strife, and transnational challenges, hundreds of thousands of migrants from those countries have made the dangerous trek through Europe and across the English Channel to the southern shores of England, where they hope to gain asylum in the U.K., the country with the greatest and longest history of constitutionalism and rule of law of any country in the world.
The numbers of migrants arriving on Britain’s southern shores—as elsewhere during what is a traumatic period in global migration—are substantial, and it is true that the United Kingdom cannot take in all comers. But the beleaguered Conservative government, facing a likely general election drubbing in the coming year, has turned to a cynical and controversial policy (first under Boris Johnson, and now under Rishi Sunak): to immediately send any migrants who manage to make the dangerous crossing on chartered flights to have their asylum claims processed instead in the East African nation of Rwanda.
Although Rwanda has made significant strides in development and political stability in recent years, it is sheer doublethink to call it a “safe country” in the same sense as the United Kingdom, a country firmly ensconced in Western democratic traditions with a high standard of living and the longest history of constitutionalism and rule of law of any country in the world. Rwanda is none of these things, and the migrants who the Tories are threatening to send there deserve better. Unfortunately, doublethink is exactly what the Sunak government is engaging in: even the moderate Home Secretary James Cleverly, whose enthusiasm for the policy has been less steadfast than most, waxed poetic about the “deterrent effect of Rwanda.” In essence, the proof is in the pudding; the premise of the policy is that asylum seekers will not come if they know they will end up Rwanda. If people fleeing war, disease, and rising temperatures don’t want to end up in Rwanda, can the country really be all that marvelous?[1]
Fortunately, it seems unlikely that any of these refugees will end up in Rwanda, because the Tory policy is unlikely to be implemented. It has run into numerous political and legal hurdles which challenge its validity under international and British law. Although the hare-brained scheme will not likely be implemented (although Sunak has a thousand pounds in a bet with Piers Morgan that says it will), it is a worthwhile exercise to analyze the political motivations and legal justifications for this remarkable policy from a comparative perspective, particularly in light of trends in American politics which have shifted rightward the political center on migration policy. This is especially relevant insofar as it can inform us about the electoral strategies of the flailing Conservative Party and in a global comparative sense to better understand the potential role of border policy—including asylum law—in the 2024 presidential election in the United States.
How did this Plan Become so Central to British Politics?
The Rwanda policy—officially called the Migration and Economic Development Plan for Rwanda—was first proposed by the government of Prime Minister Boris Johnson in April 2022. It was presented as an unconventional but inventive solution to the country’s worsening small-boat migration crisis, squarely within the government’s legal power. Asylum seekers who had endured a dangerous journey and already passed through a “safe third country.” The experimental policy was initially presented as a “pilot” and the number of asylum seekers initially planned to be sent to Rwanda was quite small.
From the beginning, the publicity component was pivotal (johnson at the time was enduring the dog days of his Covid scandals). A cadre of eager cabinet secretaries, such as Johnson’s Home Secretary, Priti Patel, jetted to Rwanda as part of a public relations campaign designed to prop up the East African nation’s image among the British public, advertising its clean streets and nice condominium housing (which would allegedly house asylum seekers). The implication was clear: Rwanda was a marvelous Emerald City where asylum seekers could not just survive, but thrive.
Shortly thereafter, in June 2022, the Strasbourg-headquartered European Court of Human Rights (ECHR) threw a wrench into the plan, halting the first proposed flights after declaring the policy to be in violation of international law, as part of its Rule 39 powers of interim injunction. In October 2022, Rishi Sunak took office as Prime Minister and reinvigorated the party’s focus on the policy, even though as Chancellor of the Exchequer he himself had been more than skeptical of it just a few months earlier. He received a boost on December 19, when Britain’s High Court upheld the bill, emphasizing a broad definition of inadmissibility and accepting the government’s designation of Rwanda as a safe country. That decision, however, was reversed by an appeals court, which found that Rwanda was not a sufficiently safe destination for asylum seekers, due to its poor human rights record, deficiencies in its asylum system, and the credible risk of refoulement.
By summer 2023, the undeterred P.M. was trying to push the bill through the House of Commons—part of a divisive spate of wedge issue politics—to no avail. “Stop the boats” was one of the five publicly stated policy goals of his government.
In the fall of 2023, the British Supreme Court struck down the latest version of the bill, declaring it to be unconstitutional. Now, despite opposition on grounds that it violates both national and international law, and damages Britain’s soft power as a champion of the rule of law writ large, the Sunak government continues to press the issue on the policy, which it sees as vital to its chances in the looming general election.
Implications for international law and British politics
The Rwanda policy is shaking the foundation of rule of law at three levels: international, European, and British, with additional implications for the global reputation of post-Brexit Britain. The first impact is its damage to the U.K.’s reputation as a liberal bastion of constitutionalism, because of the legal ripple-effects that unilateral action on the Rwanda polciy has. Rashmin Sagoo, an international law expert at Chatham House, the U.K.’s leading think tank. Sagoo, who provided expertise to Parliament in its deliberations on the bill, says that “the bill has significant implications for the UK’s legal leadership and global soft power more generally,” says Sagoo, “including whether it can continue to be seen as a reliable international partner.”
Sagoo details the significant ways in which the Rwanda plan—officially known as the Migration and Economic Development Partnership—violates a litany of the most bedrock principles of international law, including those enshrined in the 1951 Refugee Convention (to which the United Kingdom is a party and to which it was one of the original architects). Chief among these is the concept of non-refoulement, arguably the most vital first principle of international refugee law. Non-refoulement stipulates that asylum seekers who meet the standards of asylum—most broadly a “credible fear of persecution”—cannot be turned away because of the risk that they will be returned to their country of origin, even if they have already passed through a safe third country. The term comes from the French verb refouler, meaning “to push back.” It was included in the Refugee Convention at the behest of French and Belgian diplomats who insisted that the term conveyed an important layer of meaning not present in terms such as “deportation” and “expulsion.”[2] This prescient provision has lended needed scrutiny to past plans for third-party processing and constitutes the litmus test for any such policy.
There are—very few—previous examples of third-party processing for asylum seekers, including Australia’s Pacific Solution which sent migrants to nearby Nauru and Papua New Guinea. Most such programs, it should be noted, are voluntary, such as an EU plan with Rwanda for Libyan nationals.
The Rwanda plan also puts the U.K. at odds with European law. Although the country has left the European Union, it is still a member of many contintental institutions, including the European Convention on Human Rights (ECHR). Violating the interim rulings of the ECHR puts Britain in opposition to measures it has called upon other countries to comply with, and which it has ratified into its own law in section 6 of the Human Rights Law of 1998.[3] The Supreme Court emphasized this is in its decision in November, reminding the Sunak government that “Parliament has given effect to both the Refugee Convention and the ECHR in our domestic law.”
Namely, Sunak’s government’s decision to ignore the ECHR’s injunction against the flights is in violation of Rule 39 of the ECHR’s Rules of Court, which stipulates that “the Court may indicate interim measures to any State Party to the European Convention on Human Rights.”[4] The fall 2023 bill acknowledges at the outset that the policy cannot be reconciled with the Convention, but states that “ the Government nevertheless wishes the House to proceed with the Bill.” It also disallows British courts from enforcing governmental compliance with the ECHR, despite the fact that this is required by the 1998 Human Rights Act. According to the bill, “It is for a Minister of the Crown (and only a Minister of the Crown) [i.e. Home Secretary James Cleverly] to decide whether the United Kingdom will comply with the interim measure.” As of now, the policy is in violation of British, European, and international law.
Is Rwanda “safe?”
The Conservatives have vigorously promoted Rwanda as a “safe country” in a remarkable public relations campaign for the past two years. A private PR firm was enlisted to improve Rwanda’s image and has been accused of targeting a British journalist who wrote a critical book about the Rwandan government.
The fall 2023 bill proposes that the government can abrogate the right to make the evaluation of Rwanda’s “safety” and stipulates that “every decision-maker must conclusively treat the Republic of Rwanda as a safe country,” including the courts. This remarkable assertion, like Cleverly’s claim that only government ministers can decided whether to comply with the 1998 Human Rights Act, runs roughshod over the whole notion of judicial review.
Rwanda’s “safe” designation” is, in fact, eminently contestable and was disputed by Britain’s Supreme Court. Although Rwanda does not itself face the sectarian strife and ethnic violence that plagued it in the 1990s and still affects its neighboring countries, such as the Democratic Republic of Congo, there are numerous substantial reasons to be concerned about the safety of asylum seekers in the country. Rwanda has been governed by President Paul Kagame since 1994, a man who was originally a peaceful democrat but has since become an illiberal authoritarian. Originally an internationally praised democratic figure who presided over Rwanda’s recovery from the devastating 1994 genocide of the Tutsis by the Hutus, Kagame has since consolidated power as an illiberal and authoritarian ruler, quelling political opposition and sanctioning extraterritorial assassinations of journalists and rivals in a brazen manner that resembles the world’s most notorious dictators.
Prominent Rwandan opposition figures who have faced persecution at the hands of Kagame (who claimed to have won his most recent election with 99% of the vote) have decried Britain’s refugee policy and asserted that it gives an undeserved credibility to a ruthless regime. These voices include the family of Paul Rusesabagina, the legendary hotelier who saved 1,200 lives during the Rwandan genocide (and became famous as the subject of the 2004 film Hotel Rwanda), who was imprisoned for two years by Kagame with no explanation. Prominent moral voices in the UK have also spoken out, including the Archbishop of Canterbury, the de facto head of the Anglican Church, who called the policy “immoral and indefensible.”
Additionally, since 2013 the Rwandan government has supported a militia group, M23, in the neighboring Democratic Republic of Congo, which has committed mass killings and gang rapes, contributing to the displacement of one million people in the region; in addition to a disgraceful human rights reputation, Rwanda’s image as a motivated actor in the process of solving the global challenges of migration and displacement is therefore challenging to bolster Kagame’s support for M23, which has gone on for over a decade, previously caused many countries, including the United Kingdom, to suspend aid to Rwanda. As of 2023, many countries including the United States, Germany, and France have called on Rwanda to suspend its support for M23. Inextricably intertwined—financially and politically—to Rwanda’s brutal government, the United Kingdom has not.[5]
Finally, there are concerns with respect to major deficiencies in Rwanda’s asylum system, which puts the safety of asylum seekers at risk both in Rwanda and in the future because of the possibility of refoulement. In 2018, twelve refugees in Rwanda were shot at and killed for protesting against cuts in food rations. Refugees from Syria, Iraq, and Afghanistan have had their claims wrongly heard and been sent back to their war-torn countries of origin.
Likely future of the policy
Although it is unlikely that they will be sent to Rwanda, there are now more than 30,000 asylum seekers being held on bail in the U.K. and being prepared for deportation.[6] A further 94,000 have unprocessed claims, in what the Home Secretary insisted before Parliament last week, merely amounts to a “queue.” I don’t know about that; I don’t remember seeing 94,000 people waiting with me for tea at Fortnum’s. If there had been, I would have called it, perhaps, a “backlog.” The Conservative government has opted to treat these asylum seekers as political pawns, instead of seeking a more serious and long-term solution to the migration crisis.
The combativeness with which even Sunak’s moderate lieutenants defend the Rwanda policy (including Foreign Secretary David Cameron) suggests that it will not be abandoned before the general election. The Conservatives are in a state of abject electoral panic at this juncture and even a more moderate Rishi Redux has become too wedded with this divisive Boris Johnson policy to abandon it. Migrant arrivals in 2023 and in the first months of 2024 were significantly below the highs in 2022, suggesting that public focus on the issue will wane.
Whether Sunak’s heart is in the policy is unclear. Many who know him well have argued that Sunak—a Stanford MBA graduate and former Goldman Sachs investment banker who retains a home in Southern California—is not the milquetoast technocrat his credentials seem to suggest. Instead, they say, Sunak is some form of closeted culture warrior fire-breather As the Tories cling to this senseless and impracticable Rwanda policy, I’m starting to believe that Rwanda Rishi is the real one.
[1] https://migrationobservatory.ox.ac.uk/resources/commentaries/qa-the-uks-policy-to-send-asylum-seekers-to-rwanda/
[2] https://www.wsj.com/articles/refoulement-a-river-of-refugees-forced-to-reverse-11633642919
[4] ECHR
[5] Hassan, T. (2023, Jul 06). Britain remains conveniently silent on rwanda. Financial Times Retrieved from https://login.proxy.lib.duke.edu/login?url=https://www.proquest.com/newspapers/britain-remains-conveniently-silent-on-rwanda/docview/2845958277/se-2
[6] https://www.theguardian.com/uk-news/2024/jan/31/more-than-30000-uk-asylum-seekers-on-bail-under-rwanda-deportation-threat
