Aanjneya Tandon[1]
1. Introduction
The Supreme Court recently upheld the Court of Appeal’s (CoA) majority verdict in AAA (Syria) and Others (the Rwandacase) providing much needed respite to potential refugees across the country. While the judgments certainly deserve the nods of approval from the human rights community, this article argues that the decision is a half victory at best.
A) Appeal Background
To provide some necessary background, the central issue in this case pertained to the legality of the Secretary of State’s policy that certain people should be removed to Rwanda to have their refugee claims considered there. In order to effectuate this policy, the Secretary of State deemed Rwanda to be a ‘safe third country’ on the basis of a memorandum of understanding (MOU) entered into with its government, such that deporting immigrants to it would not constitute a violation of the principle of non-refoulement, which requires that immigrants are not returned, directly or indirectly, to a country where ‘their life or freedom would be threatened’.[2]
In its judgment in the present case, the Supreme Court expressed agreement with the CoA’s decision to reverse the Divisional Court’s judgment which had upheld this policy, holding that the ECHR obligations (which include the aforementioned principle (see Art.3)), as incorporated into domestic law by the Human Rights Act 1998 (HRA), required the courts to undertake an independent assessment of Rwanda’s safety (see Soering v UK). Proceeding on this basis, their Lordships found Rwanda to not be safe because of a prevalent ‘culture’ of disregarding international obligations, as specially demonstrated by the ill-implementation of a similar previous arrangement with Israel.
B) Problems with the Judgment
Explained thus, this judgment appears not only to be perfectly acceptable for the soundness of its legal reasoning, but also appreciable for the positive human rights implications it entails. However, a closer look reveals a more nuanced picture which seems to be significantly less ideal. The issues with this judgment can be broadly divided into two heads which shall be respectively discussed in the two parts of this article. First, far from imposing a legal obligation on the UK government to consider refugee claims on their merit via a purposive interpretation of the Refugee Convention, the judgment is actually quite conservative in its approach. Troublingly, there is a serious concern that even this rather limited protection granted by it is ultimately unsustainable because of its vulnerability to attack from anti-European legal efforts such as the attempt to repeal the HRA. Second, and equally concerningly, while the judgment manages to strike the right balance between judicial and executive authority, it leaves open the question of whether the decision would have been the same if it was instead the Parliament which had deemed Rwanda to be safe. This latter point, of course, is not so much a critique of the judgment itself as this issue was never raised on the facts, but rather an expression of apprehension for where we might be headed in the future.
2. Sole Reliance on European Jurisprudence: The Possible Implications of the Omission to Acknowledge Non-refoulement as a Common Law Constitutional Right
As indicated above, the ratio of the Supreme Court’s judgment in Rwanda centred around the ECHR as implemented by the HRA and the corresponding domestic and Strasbourg jurisprudence. It is submitted that this, while forming a satisfactory basis for the outcome reached by the court is not sufficient protection in light of a growing anti-European political sentiment. Until as recently as June 2023, there was a real possibility of the HRA being replaced by a ‘British Bill of Rights’. That this threat didn’t come to pass should not be used as an excuse for complacency but should rather awake us to the dangers of relying solely on European jurisprudence for protecting rights as fundamental as those in discussion here.
Concerningly, not only did the court not expressly acknowledge non-refoulement to be a common law constitutional right, but it arguably indicated that it might be hesitant to do so if asked in the future. In other words, there is a clear lack of reaffirmation of the principle. In dismissing the government’s appeal, the Supreme Court also dismissed a cross-appeal arguing that there was an alternative retained-EU law ground for holding the policy illegal.[3] What is problematic about this stance is not that their lordships held the Procedures directive to have been overruled by the later 2020 Act, but rather that in doing so they opined that the ‘normal canons of statutory construction’ applied as the directive did not entail any fundamental common law right.[4] Of course, the directive only codified the specific requirement that there should be sufficient connection between a country and the person being removed to it before it can be deemed ‘safe’, and not the broader idea of non-refoulement in general. Nevertheless, this part of the judgment does not fill one with hope. Indeed, it is a short step from holding that a particular provision which arguably embodies a principle in practice is not a common law right and holding that the principle itself is not a common law right.
What is even more surprising about the judgment is that we can compare the above reluctance with their lordships arguably having themselves set the stage which would allow future courts to absorb the principle into the litany of common law rights. Highlighting the centrality of the principle of non-refoulement to international law, the Supreme Court held in this case that it arguably forms part of customary international law (CIL).[5] This is important because there is a long tradition of incorporating CIL as part of common law in this jurisdiction which goes back to the 18th century.[6]In fact, some judicial voices have time and again even supported the idea that CIL automatically becomes part of common law.[7] While the present orthodoxy is not perfectly reflective of this proposition, it is clear that CIL ‘once established, can and should shape the common law’ as long as it is consistent with domestic constitutional principles.[8] Given this, having recognised non-refoulement’s special international status, the Supreme Court should have gone a step further by expressly holding it to be part of the common law.
It is submitted that so long as this is not done the victory for refugee rights will remain open to attack from political quarters and therefore incomplete. Of course, acknowledging non-refoulement to be part of the common law is no magic bullet as the Parliament shall remain empowered under the doctrine of parliamentary sovereignty to legislate contrary to it. Nevertheless, expressly recognising the principle as a fundamental common law right would at least make it more difficult to abuse it by making it immune to implied derogations even independently of the HRA as well as immune to the growing anti-Strasbourg political narrative.
3. The Open Question of Parliamentary Intervention
Another important concern with regards to the Rwanda case pertains to a counter factual which is now threateningly close to becoming reality. That is, the consequences of the Parliament, instead of the executive, deeming Rwanda to be safe. On the present facts, the Supreme Court felt no qualms in holding that it was required to undertake an independent assessment of the safety of Rwanda because it was the executive which had found it to be safe; indeed, their lordships rightly emphasised that cases like these need to be distinguished from those concerning national security where the executive enjoys a certain degree of deference.[9] However, the situation would be significantly different if we replace the executive with the Parliament, as the proposed Rwanda Bill seeks to do, for then the doctrine of parliamentary sovereignty would clearly be triggered.
If passed into law, the most obvious consequence would be that the courts would no longer be free to independently assess Rwanda’s safety as they did here. However, it is important to highlight that this need not necessarily translate into rendering the courts completely impotent. On the contrary, by declaring the legislation to be incompatible with the Human Rights Act under section 4 of the provision the courts can make a powerful statement bringing to light the serious human rights issues involved. While such a declaration might seem relatively benign to a pure legalist, it in fact has a huge impact on the political narrative and thereby opens the doors for reversing such legislations through democratic means. Therefore, it is submitted that while the Parliament deeming Rwanda safe would be an unwelcome development, it need not necessarily sound the death knell for refugee rights—at least not by itself.
Careful analysis reveals that the more troubling prospect facing the refugee community is the ouster clause introduced by clause 2(1) as read in conjunction with clause 2(3)-(5) of the proposed bill. While the former seeks to strong hand all ‘decision makers,’ including courts (see clause 2(2)(b)), into deeming Rwanda safe, the latter aims to prevent courts from considering this issue in the first place. Looking to previous instances where such clauses have been added to the legislations, the courts have generally managed to find a loophole so as to side-step the problem.[10] For instance, their Lordships read down the ouster clause in Anisminic Ltd v Foreign Compensation Committee so as to allow themselves to consider whether there had been a legally valid decision in the first place. However, these efforts have always been highly fact sensitive, and there is no guarantee that past creativity can be recreated and repeated in the present instance, especially given the explicit manner in which the bill has been framed.[11] Either way, there is a real risk that the courts might be forced to authoritatively determine the limits of parliamentary sovereignty bringing this longstanding constitutional tug of war to a head.[12] There is, therefore, a high chance that we may now see major constitutional debates play out against the background of this case; the best we can hope is that refugee rights in particular, and human rights in general are the true victors in this perennial struggle for power.
4. Conclusion
The judgment in Rwanda is most definitely welcome for the protection it assures to potential refugees, as well as for signifying a major win for the HRA and Convention rights. Despite this, however, as this article has sought to show, the victory remains partial and as the politico-legal drama continues to unfold, we may soon find ourselves approaching a constitutional precipice in the near future. With regards to the former concern, it is apt to reemphasise that the courts must expressly acknowledge non-refoulement as part of common law when next faced with the question lest a renewed attempt at repealing the HRA succeed and undo the progress for refugee rights that this judgment signifies. And as for the latter, while we do not yet know how the courts will eventually answer the questions left open by Rwanda, by critically analysing them and their human rights implications, this article attempts to at least bring to the surface the key issues at play. The hope underlying this effort is that enhanced transparency would translate into enhanced accountability by the relevant politico-legal actors, thereby ensuring that Rwanda’s win becomes lasting.
[1] LLM student at Hughes Hall, University of Cambridge.
[2] R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42 [3]-[12].
[3] ibid [107]-[148].
[4] ibid [142].
[5] ibid [25].
[6] Buvot v Barbuit (1737) Cases t Talb 281; see also Triquet v Bath (1764) 3 Burr 1478.
[7] Trendtex Trading Corp v Nigeria [1977] 2 WLR 356.
[8] R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC [144]-[150] (Lord Mance, obiter).
[9] ibid (n 2) [56].
[10] Anisminic Ltd v Foreign Compensation Committee [1968] APP.L.R. 12/17; R (On the Application of Privacy International) v Investigatory Powers Tribunal and Others [2021] EWHC 27 (Admin).
[11] See R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin); see also Mark Elliott’s analysis of the case.
[12] See Tom Hickman KC and Dr Stefan Theil’s CULS Panel Discussion, ‘Parliamentary Sovereignty and where we are now?’ (24 November 2023) < www.listennotes.com/podcasts/cambridge-law/parliamentary-sovereignty-OJ6zA2iKrN1/> for an in-depth analysis.