by Kathryn Allinson, University of Bristol Law School
On 14 April 2022, the UK and the Rwandan governments signed an MoU outlining plans for transferring asylum seekers from the UK to Rwanda. The MoU has been subject to much criticism from academics, NGOs and the UNHCR. Criticism has focussed, first, on the attempts by the UK to divest itself of responsibility for asylum seekers. Second, it has highlighted the potential for further abuses of refugee and human rights law to occur against transferred individuals in Rwanda. The MoU is the latest in a range of mechanisms whereby States in the Global North attempt to externalise their borders and shift responsibility for refugees onto Global South states.
A number of reports have warned that the transfer of asylum-seekers to Rwanda could result in human rights abuses, including through sub-standard asylum procedures and potential refoulement, as well as in detention conditions, lack of access to basic services and limitations on freedom of expression and privacy, and the mistreatment of LGBT+ people in Rwanda. A report from the Israel – Rwanda transfers evidences abuses of asylum seekers through their detention, lack of documentation and loss of status which resulted in abuse and exploitation.. Given the human rights implications of transfers, the MoU is subject to ongoing litigation. However, this blog looks to the accountability mechanisms that would be available to an asylum-seeker, should transfers go ahead, and their rights be breached. In particular, it establishes what the legal responsibility of the UK would be for these right breaches.
The MoU demonstrates an attempt to limit recourse to accountability mechanisms for any affected parties. Paragraph 1(6) of the MoU stipulates that this ‘Arrangement will not be binding in international law’. This means neither party can apply to an international dispute settlement mechanism should the other party renege on their commitments. Further, paragraph 2.2 states that ‘For the avoidance of doubt, the commitments set out… do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.’ This clearly attempts to prevent any judicial oversight for States or individuals affected by the operation of the MoU. However, the fact that the MoU is not legally binding itself does not exclude the wide-ranging international legal framework that is implicated by the MoU, most notably international refugee and human rights law, that is binding on both parties. I explain below how breaches of these laws could result in legal responsibility for the UK.
First, despite the MoU stating that ‘the UK’s legal obligations end once an individual is relocated to Rwanda, and the Government of Rwanda takes on the legal responsibility for that individual and for processing their claim in line with the Refugee Convention…’, the UNHCR has clarified that primary responsibility remains with the State where asylum is sought. Their analysis has outlined that transfer arrangements aren’t appropriate where they are an attempt to divest responsibility, deny jurisdiction or limit responsibility, and that the ‘transferring States retains responsibilities under international refugee and human rights law towards transferred asylum-seekers’. In 2013, the UNHCR made clear that transfer agreements where a State seeks to divest its responsibility are in breach of obligations under the 1951 Convention. As such, the UK will maintain primary responsibility for that individual and their asylum claim under international refugee law, or it risks breaching the 1951 Convention.
Second, the UK is bound by certain human rights law obligations. In particular, the UK’s non-refoulment obligations, the principle that individuals cannot be returned to countries where they would be at risk of persecution, torture, or other serious ill-treatment (Article 33(1) of the Refugee Convention and Article 3(1) of the Convention against Torture), are potentially implicated by these transfers. Such a risk clearly exists for Rwandan nationals, for members of the LGBTQI+ community and for those who may be subject to ‘indirect-refoulement’, due to the inadequate asylum procedures in Rwanda. Should such individuals be knowingly transferred, the UK will be in breach of this fundamental rule of international law and claims could be brought before domestic, European or international human rights mechanisms to ensure accountability.
In addition, the UK is bound by due diligence obligations under human rights law despite attempts to divest responsibilities over the processing of asylum claims through externalisation or transfer arrangements. Due diligence obligations are positive obligations on a State to take all reasonable steps to prevent human rights violations from occurring. The report by the UN Special Rapporteurs outlined that a number of positive obligations incumbent upon the UK are also at risk of being breached by the implementation of the MoU, including to prevent trafficking, to ensure right to life, to prevent torture and inhumane treatment, and to ensure effective protection and the protection of those with vulnerabilities. In knowingly sending asylum-seekers to a country where they are at risk from these human rights abuses, the report suggests, the UK is failing in its due diligence obligations and hence it may be held accountable for them.
Finally, the UK can be held accountable through complicity in unlawful acts or omissions by the Rwandan state in relation to transferees in Rwanda. The UK could be complicit in any breach of international law by Rwanda against transferees (see Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) and Ferstman, 2020). As such, UK complicity would not be limited to responsibility for refoulement or failures to uphold positive obligations under human rights law but could include failure to ensure access to basic services, freedom of expression as well as abuses of asylum process under refugee law. Complicity incurs greater responsibility than a breach of a due diligence obligation because it engages responsibility for the contribution made to the breach of international law, rather than for a failure to act (see e.g. Trapp 2015).
The UK will be responsible for aiding and assisting Rwanda in breaching the rights of transferred asylum seekers if it ‘knowingly facilitates’ those breaches. This requires that the aid and assistance must make some significant contribution to the breach. The MoU outlines that the UK will pay Rwanda significant sums of money as part of the Partnership and will facilitate the transfers of asylum seekers. As a result, claims have already been made that the UK is involved in trafficking refugees to Rwanda. Further, the aid and assistance must be rendered with knowledge of the potential for the breach to occur. The UK is aware of the potential for human rights abuses and asylum procedure breaches in Rwanda as these have been extensively documented. Arguably, the UK also shares the intent to commit such abuses so as to dissuade people from irregularly entering the UK.
Despite claims to the contrary, the UK cannot avoid its responsibility to asylum seekers through transferring them to Rwanda, or elsewhere. Certain obligations under international refugee and human rights law will continue to apply. The UK government also exposes itself to charges of complicity in conduct taken by the Rwandan government where they have knowingly facilitated it. As all eyes remain on the domestic and European litigation, let us just hope that recourse to these mechanisms will not be necessary.
Republished from Border Criminologies Blog, University of Oxford.