British government crisis and legal challenges leave UK-Rwanda deportation deal on standby until September

BEIRUT ­— The United Kingdom’s controversial deal to deport asylum seekers to Rwanda is on standby, following legal challenges and a leadership crisis within the ruling Conservative Party. No deportation flights will take off to Rwanda, at least until September: That month, a UK court will rule on the lawfulness of the deal, and the Conservative Party will elect its new leader.  

The Memorandum of Understanding between London and Kigali, signed in April, aims to transfer asylum seekers who arrive irregularly in the UK to Rwanda. In exchange, the East African country will receive a $157 million investment from the UK.

The first deportation flight, scheduled for June 14, was halted due to a flurry of individual litigations and an order from the European Court of Human Rights (ECHR). These  legal obstacles put the deal on hold. On top of that, scandal-plagued Prime Minister Boris Johnson resigned on July 7 after nearly 60 members of his party abandoned his government. 

The Conservative Party said flights to Rwanda would restart once they choose a new leader on September 5. All the candidates have vowed to keep the Rwanda policy, but the deal’s long-term viability depends on a pending decision by the UK High Court. 

On July 20, Conservative members of parliament voted to narrow the candidates for Prime Minister down to Liz Truss and Rishi Sunak. Truss said on July 16 that if chosen as PM she would not only keep, but seek to expand the Rwanda deal, and would approach Turkey to join it. The odds of this idea becoming a reality, though, are slim.

“For Turkey, which hosts more refugees than any other country in the world, it is extremely unlikely that they would agree, it’s absurd,” said Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE). Woollard said she didn’t see “any other country joining this agreement” given what she termed the “neocolonial approach” of this type of offshoring deal, in which well-off countries pay poorer countries to take unwanted asylum seekers.

After the deportation deal was announced earlier this year, around 130 asylum seekers who crossed the English Channel were detained and served with a deportation order to Rwanda, among them more than a dozen Syrians. 

Following legal challenges and amid the current uncertainty regarding the deal’s future, half of the affected asylum seekers have been released and the rest are still in detention.  “Every day, one or two people are released, it’s a question of time,” said Claire Moseley, founder of Care4Calais, one of the organizations providing legal assistance to asylum seekers. Those released on bail “have to report to the Home Office and declare where they are,” she added.

The UK has no upper limit on the duration of the administrative detention of foreign nationals in their immigration process. However, if there is no prospect of imminent deportation, they must be released on bail. “It is unlawful to hold people in detention if it is not possible to immediately deport them,” Woollard said.

The fate of the 130 asylum seekers is uncertain. “It’s possible that some of these people could be deported but it’s unlikely,” Moseley argued, given that they “all have lawyers now, and it is easier for the lawyers to fight for these people.”

But new arrivals might be in a more vulnerable position. “If any new Syrian refugees arrive in the UK, or if anybody that crosses the [English] Channel from now to September is taken to detention, they need to contact Care4Calais so we can get them lawyers,” Moseley said. 

So far in 2022, 13,000 people have crossed the English Channel from France in small boats. In all, 60,000 are expected to make the dangerous crossing this year, a migration route that has taken 166 lives since 2014. 

The UK Home Affairs Committee, in a report published on Monday, stated “there is no clear evidence that the [Rwanda] policy will deter migrant crossings.” The Committee recognized that “safe and legal migration routes to the UK,” might be a reality for refugees from Ukraine or Afghanistan, but “for others, irregular routes of entry may be the only means of making the journey to enable a claim to be made.” 

The body also warned the UK “runs the reputational risk of appearing to wash its hands of its international obligations.” For instance, the Rwanda deal penalizes asylum seekers who entered the country irregularly, which is a violation of the 1951 Refugee Convention. The deal may also breach the right to non-refoulement established in the Convention against Torture.

According to Asylos, a global network of volunteers working to research country-of-origin information, the Home Office’s assessment of Rwanda as a safe country mistakenly portrayed Rwanda’s asylum system as a “functioning” one. The UK omitted the concerns of LGBTQI+ people and did not properly address the risk of indirect refoulement, the network said. For instance, if a Syrian ​​is deported from the UK to Rwanda and from there deported to Syria—where this person may be at risk of irreparable harm—the UK could be responsible for indirect refoulement.  

In a similar 2013 agreement between Israel and Rwanda, “the majority of asylum seekers were not able to access asylum in Rwanda, and were therefore forced to travel onward,” Asylos noted in its commentary. Syrian refugees who have returned to Syria have faced human rights abuses and persecution, as documented by human rights groups.

An uncertain legal battle 

The legal battle against the UK-Rwanda deal started as soon as it was announced. In early June, three NGOs and a trade union brought two court challenges against the policy, but the UK courts refused to stop the deportation flight scheduled for June 14. 

Ultimately, a last-minute injunction by the European Court of Human Rights (ECHR), based in Strasbourg, stopped the deportation of an Iraqi asylum seeker. This ruling automatically helped the rest of the asylum seekers challenge their deportation until the flight was emptied. The ECHR stated that until the UK High Court ruled on the lawfulness of the policy, nobody could be deported. 

The High Court ruling is scheduled for September. “We have a very strong case to stop it because the policy is contrary to international refugee law and international human rights law,” said Moseley from Care4Calais, one of the plaintiff organizations. Woollard agreed: “It is quite clear that the policy contravenes international law.”

Even so, the outcome of the ruling might be “unpredictable” due to a technicality, Woollard said. The deal has been formulated as a Memorandum of Understanding (MoU), and not as an international agreement. “It is deliberately presented in a form to prevent legal challenges. In formal international agreements, certain standards need to apply but that’s not the case of MoU,” Wollward said. A “disingenuous” tactic of presenting agreements as “informal arrangements” has been extensively used in the migration field “to make it harder to take a challenge in court,” she added.

If the High Court deems the agreement lawful, the government could restart deportation flights to Rwanda. As happened in June, asylum seekers would have to challenge their deportations individually. “Individual legal actions already had a positive effect, we saw people one after the other being removed from the plane,” Woollard said. Individual challenges have a good chance of success “because the situation in Rwanda is very clear that for almost anybody who is seeking asylum it will not be considered a safe place,” she said.

As it did in June, the ECHR could “rule that the policy cannot be applied in an individual case,” and this ruling could help the rest of asylum seekers to challenge their deportation, explained Woollard. The ECHR could also adopt a “narrower approach,” she added, by specifying that they do not comment on the policy itself. “In that case the UK government would try to deport other people.”

Deportation threats carry a high psychological toll for asylum seekers. Several of the detained asylum seekers to be deported to Rwanda in June became suicidal and were not offered counseling. 

British Bill of Rights

Last June, the UK government presented a Bill of Rights in Parliament as a replacement of the current Human Rights Act, a 1998 law that incorporated the rights set out in the European Convention on Human Rights into domestic British law. Human Rights Watch described this as “a move that would significantly weaken rights across the board for all.” 

Under the proposed bill, the UK would remain in the European Convention of Human Rights, but UK courts would “be given instructions on how to interpret the European Convention on Human Rights,” Woollard explained. This would “water down and limit human rights protection” in the UK, she said, calling it a “shortsighted and misguided measure that creates a lot of inefficiencies,” leading to “more cases from the UK going to Strasburg because people won’t be able to get justice in the UK courts.”

If the Bill of Rights is approved, then when an asylum seeker who challenges their deportation to Rwanda is rejected in a UK court, this person could still appeal to the ECHR. 

However, after the ECHR stood in the way of deportations to Rwanda in June, some Conservative candidates doubled down, announcing they would leave the European Convention on Human Rights if selected as PM. The Convention was proposed by Winston Churchill and drafted in the aftermath of World War II to protect human rights in Europe. Truss and Sunak, the current frontrunners to succeed Johnson as PM, have not ruled out leaving the Convention.