It is lawful for a wealthy state of the Global North to forcibly deport asylum seekers who manage to reach it to a poorer third country of the Global South with which they have no ties—to claim asylum there, in another continent. This is what the UK High Court ruled on 19 December 2022.
The judge’s long-awaited ruling in the case of AAA and others v Secretary of State for the Home Department confirmed that “the relocation of asylum seekers from the UK to Rwanda is consistent with the 1951 Refugee Convention and with the statutory and other legal obligations on the government, including the Human Rights Act 1998”. Three options would then be open to asylum seekers being relocated: be regularised and settle in Rwanda; return to their country of origin; or leave for a third country, provided residing there legally is a possibility. In any case, however, the person cannot remain and seek asylum in the United Kingdom, despite the perils and obstacles they endured to reach its shores.
With this ruling, the High Court in London upholds the externalisation of the UK’s obligations to those seeking asylum, even though there is no basis in international law for States to refuse asylum applications, or to deprive non-citizens of their liberty in offshore facilities.
If a person had the opportunity to claim asylum in a safe third country but did not do so prior to making their asylum claim in the UK, the UK Home Secretary can define such a claim as “inadmissible” and remove the person—either to the safe third country where the chance to make the asylum claim arose, or any other safe third country that agrees to accept the asylum claimant (i.e. Rwanda). The Migration and Economic Development Partnership signed in April 2022 indeed provided for the transfer of asylum seekers from the UK to Rwanda, with Rwandan authorities determining the asylum claims. Yet when such forced relocation was attempted by the UK, it was halted for its illegitimacy.
In June 2022, Britain’s first flight to transport asylum seekers to Rwanda did not depart as scheduled because the European Human Rights Court (ECHR) issued last-minute injunctions to stop the deportation of the migrants on board, as they would “face a real risk of irreversible harm”. The ECHR pointed to concerns, initially identified by the United Nations High Commissioner for Refugees (UNHCR) in particular, “that asylum seekers transferred from the UK to Rwanda [would] not have access to fair and efficient procedures for the determination of refugee status” as well as the finding by the High Court that “the question of whether the decision to treat Rwanda as a safe third country was…based on insufficient enquiry”. In this case, the British government had failed to consider the individual circumstances of the people it tried to deport—notably, an Iraqi asylum seeker who was likely a victim of torture, and who had just filed an appeal before the ECHR the day before.
The EU Court decided later in June to prevent the removal of the migrants, at least until British domestic courts had the opportunity to examine the issue further, and in light of the fact that Rwanda is not a signatory to the 1950 European Convention on Human Rights; an additional factor was the absence of a legally enforceable mechanism in the event of an applicant’s return to the UK following a successful merits challenge before the domestic courts. The idea of sending asylum seekers to Rwanda is now becoming normalised, and is expanding to include more and more individuals without consideration of their unique circumstances or recognition of those who are the most vulnerable. Securing the “refugee status” and returning to the UK after having been previously deported remains an impossibility.
The claimants of the case are people likely to be recognised as refugees, as they have recently fled Syria, Iran, or Iraq. The only ground for deportation is that these individuals entered the UK by boat and without a regular visa—as the majority of asylum seekers and refugees are forced to do, lacking alternative methods or pathways—despite Article 31 of the Refugee Convention, which clearly prohibits the penalisation of refugees on account of their illegal entry.
The ECHR, created to handle violations of the European Convention, partly expressed its opinion on the bilateral agreement to process asylum claims in Rwanda; now the UK High Court, through its ruling, is indicating a completely opposite interpretation of the law. According to the British court, Rwanda is a safe third country to which asylum claimants may be removed. In particular, the court emphasised that the financial arrangement the UK is offering Rwanda will provide “a clear and significant incentive towards compliance”, and that the UK “will make payments to meet the costs of processing claims, ensuring the safety and wellbeing of claimants”. Therefore, the promise of safety in Rwanda for forcibly transferred asylum seekers is being established through non-binding diplomatic assurances and financial incentives, and under the assumption that these will have positive behavioural effects on the Kigali government and civil society at large.
In short, the UK-Rwanda deal is an exchange of money for the externalisation of legal obligations: money for trapped, non-self-governing, and unfree humans—money to buy and subjugate both individuals and nations. It is obvious that such bilateral agreements are not only incompatible with refugee, human rights, and anti-trafficking laws, but that they perpetuate neo-colonialist and profoundly unequal power structures and logics. It is worth recalling that the African Union in January 2022 condemned a similar policy adopted by Denmark, stating that the Nordic country would be abdicating its international responsibilities in the asylum realm, and that such policies were “worrying, xenophobic, and completely unacceptable”.
Indeed, the UK-Rwanda deal is the grim culmination of a long history of policy measures implemented in the UK to deter the arrival of small boats through the English Channel and create a hostile environment for migrants and refugees, yet this ruling goes a step further, upgrading its legitimacy from biased public debate to the allegedly impartial judicial arena. In the words of the High Court itself in its recent judgement: “Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the legal principles governing the exercise of their decision-making functions. (…) The court is not responsible for making political, social or economic choices—for example to determine how best to respond to the challenges presented by asylum seekers seeking to cross the Channel in small boats or by other means. Those decisions, and those choices, are ones that Parliament has entrusted to ministers. (…) The role of the court is only to ensure that the law is properly understood and observed, and that the rights guaranteed by Parliament are respected.”
Providing protection to people fleeing in search of refuge is one of humanity’s longest-standing traditions and one of the main tenets of international law, starting with the principle of non-refoulement. When populist politics and uninformed public debates threaten the fabric of society, courts must draw attention to international laws and national constitutions and promote fundamental human rights—including the right of victims of war and persecution to seek and enjoy asylum—in order to foster goodwill, prosperity, and stability in the long term. It is a Senior Court, however, that is now putting at risk not only the human rights and bare lives of people seeking asylum, but the international refugee protection regime at large, by condoning the concept that wealthy and stable states in the Global North should be able to evade their legal obligations and responsibilities by paying less economically and politically powerful third countries.
Deterritorialisation would also contravene the applicable legal framework, particularly the safeguards to which asylum seekers are entitled. The right to seek and enjoy asylum means, first and foremost, respect for the aforementioned principle of non-refoulement, including non-rejection at the frontier, and the admission of asylum seekers to States. Both principles would be breached by the UK in cases of relocation of asylum seekers to Rwanda. If a person seeking protection can be flown to another continent solely because a rich country does not want to hear their personal story of persecution, then the bar of what is lawful for States is becoming far too low, and far too distant from what is ethical, equitable, and just.