On November 15, the UK Supreme Court issued a judgment on the Migration and Economic Development Partnership between the United Kingdom and Rwanda (MEDP) concluding "that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement.”
It is important to remind ourselves how it all started. In April 2022, the Governments of Rwanda and the United Kingdom entered an agreement that Rwanda will receive illegal migrants to the United Kingdom, and process their asylum claims in accordance with international, national and human rights law standards. However, the implementation of this agreement has encountered legal setbacks. At first, it was an injunction from the European Court of Human Rights that stopped the transfer pending the conclusion of a legal action that had been launched in the UK courts. Thereafter, legal wrangles continued through all the UK court system, from the Divisional Court to the Court of Appeal, and finally to the Supreme Court.
I have already discussed some of the issues of the MEDP, here and here.
In this piece, I would like to focus on other aspects and argue that even if the UK Supreme Court decision might be a good legal document, it is a bad policy decision. In order for us to understand this argument, we need to analyse this decision beyond the UK. The Refugee crisis in Europe started with the Arab Spring and worsened with the killing of Muammar Gaddafi, and the collapse of the state of Libya. Before the killing of Gaddafi, there was an agreement between Libya and European countries to control the illegal immigration by sea to Europe. It is this arrangement that collapsed with the killing of Gaddafi and the disintegration of the Government of Libya. In 2017, European countries agreed to establish a joint migration task force with the African Union and the United Nations, aimed at pooling efforts and enhancing cooperation to respond to migration challenges in Africa and in particular Libya. These efforts have not yielded tangible results, smugglers and human traffickers continue to ship vulnerable migrants across the sea to Europe using precarious boats and through dangerous routes resulting in deaths and inhumane treatment of thousands along the way. In 2019, President Paul Kagame, appeared in an interview on France24 accusing Europe of violating human rights through its handling of migrants. It is this migration situation that continues to the infamous Calais juggle and small boats crossings into the UK through the English Channel.
Since 2019, the United Nations High Commissioner for Refugees (UNHCR) operates in Gashora, an Emergency Transit Mechanism (ETM), where it evacuates vulnerable asylum seekers out of Libya to safety in Rwanda. This ETM continues to operate up to date. Rwanda has also provided safety and relocation to other people at risk including girl students from Afghanistan. These are success stories, but Rwanda has had another arrangement with the state of Israel involving the transfer of migrants that was not very successful. Therefore, the MEDP came after these other initiatives, and based on this background and experiences, it can be argued that Rwanda was driven by its desire to contribute to finding solutions to a global crisis.
In reaching the conclusion that Rwanda is not a safe third country to transfer illegal migrants, the Court (a) gave special weight to the position of UNHCR, which argued that asylum seekers in Rwanda would be at risk of being returned to their countries of origin, (b) considered the failed Israel Rwanda Migration agreement, and (c) controversially, alleged that Rwanda has a poor human rights record.
I would like to come to each of these grounds. Whereas the Court acknowledges that UNHCR has a clear long-standing position that ‘asylum seekers and refugees should ordinarily be processed in the territory of the state where they arrive or which otherwise has jurisdiction over them’, the court did not probe into the existence of a conflict of interest. It did not even challenge the fact that UNHCR continues to operate a refugee transit mechanism in Rwanda.
Whereas the failure of the Rwanda-Israel agreement may serve as a good case for assessing Rwanda’s inability to respect its issued diplomatic guarantees and assurances, a good policy-making actor could see it as an opportunity that offers lessons to improve the MEDP. In my view, the Court should not have made a pejorative proclamation on Rwanda’s human rights situation. If we can agree that it is difficult to claim that matter of human rights or political space can be assessed in absolute terms, then the question becomes, how much of it is enough to consider a certain country safe. To reach such a conclusion, the Court needed to have more evidence than what it had. A determination that concerned Rwanda needed to at least consider the country’s position on all the alleged incidents. This would also have been impossible to attempt since a foreign domestic court cannot put another sovereign state under its jurisdiction. Therefore, on this, the Court’s conclusion should have been nuanced. It is, in my view, very difficult to objectively measure human rights using examples of scant incidents that happened across several years. Human rights is about the relationship between a state and its citizens, and if you are a bad actor, it cannot be difficult to pick one incident that happened in 2017 and another one in 2018 to create a pattern of human rights violations for any country in the world. This is exactly what the Court did.
As already indicated, the issue of illegal migrants in Europe is older than the MEDP and as the Court acknowledges, it is very controversial. It attracted the attention of many different actors with different positions on how to handle it. The current UK government’s policy position is that illegal migrants claiming asylum in the United Kingdom should not have their claims considered there, but should instead be sent to Rwanda. There are others who suggest that the best approach is to increase a crackdown on criminal networks instead of focusing on vulnerable migrants. Probably a combination of both can provide a solution. Others are simply opposed to the MEDP because, in their view, it is morally wrong, and the UNHCR that is against the externalisation of the refugee crisis. We have a different opinion also from mainland Europe for its connection to Brexit. We can also consider the interests of those directly or indirectly benefiting from the crisis. There is an unpopular view among human rights activists and lawyers that an asylum seeker who is originating from a safe country or who has crossed safe countries cannot have a genuine reason to seek asylum. In such a cobweb of interests, Rwanda cannot escape being the soft target of all international media and human rights critics. Otherwise, issuing diplomatic assurances is a common practice in matters of extradition and deportations, where a receiving state promises to observe the international obligations of the sending state in that particular case. It has never been a requirement to overhaul the entire legal system of the receiving state.
Robert A. Dahl, in his masterpiece publication on ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ defines a policy decision as "an effective choice among alternatives about which there is, at least initially, some uncertainty.”
He adds: "An effective choice is a selection of the most preferable alternative accompanied by measures to insure that the alternative selected will be acted upon.”
The Court’s decision fails to be a good policy decision because it does not provide a clear better alternative choice. The Court, as Dahl further notes, jeopardizes its legitimacy "if it flagrantly opposes the major policies of the dominant alliance.” The Court took this decision fully aware that this was a major policy agenda of the UK Government that was approved in their election. As Daniel Trilling notes, the Court’s decision is "humiliating for the government. Not only for its immigration policy but for the whole Conservative project from Boris Johnson to Rishi Sunak.”
In conclusion, since the Court did not rule out the principle that the UK government could send illegal migrants to safe third countries, and if the UK Government is still interested in pursuing this partnership with the Government of Rwanda, the latter has to expressly eliminate all fears raised in the Court decision. It is, in my view, not impossible to achieve.
Specific measures can be put in place, a specialised team can be trained in all institutions that will be handling these cases, and this would be in addition to strengthening the existing international monitoring mechanism.
Otherwise, as more anti-migration sentiments increase in Europe, more asylum seekers will be scapegoated, and better alternative solutions will become difficult to find.