Sixteen submissions from a range of organisations and academics are available to read
The House of Lords International Agreements Committee on Wednesday published a batch of written evidence it received for its inquiry into the memorandum of understanding (MoU) between the UK and Rwanda.
Image credit: UK GovernmentIn total, the Committee published sixteen submissions from a range of organisations and academics, so there's plenty of interesting material to read. Individual submissions are fairly brief (ranging between 4 and 14 pages long). You can find a very brief highlight and a link to each one below.
Evidence from Dr Muin Boase, lecturer in international law at the University of Derby, addresses the question of whether the UK can externalise its obligations under the Refugee Convention by outsourcing refugee status determination to Rwanda.
Dr Boase said: "In my view, it is inconsistent with the UK's treaty commitments under the Refugee Convention to outsource the determination of refugee status to Rwanda whose system for determining refugee status is, in the words of the UNHCR, 'still in development' and 'primarily geared towards asylum seekers from neighbouring countries'. The UK itself, in Rwanda's Universal Periodic Review, raised serious concerns about Rwanda's human rights record. This suggests that Rwanda is not an appropriate forum to determine refugee status."
The Law Society's evidence outlines concerns over the MoU not being a legally binding document. The Law Society also details its concerns over the lack of parliamentary oversight and scrutiny, and the MoU's lack of sufficient safeguards. Its says the MoU is inherently flawed and unfair and gives rise to a real risk that individuals may be removed to Rwanda without having had access to legal advice or effective representation.
The Anti-Trafficking Monitoring Group (ATMG) coalition submitted evidence that finds the safeguards and assurances given in the MoU do little or nothing to remove concerns over the safety for trafficking victims who may be removed to Rwanda.
In their joint evidence, the Helen Bamber Foundation and Asylum Aid address a range of concerns with the MoU. The evidence notes: "If those removed to Rwanda do not have access to a fair asylum process, or do not have their rights upheld, legally there is nothing the UK can do to rectify that. There also appears to be nothing preventing either the UK or Rwanda from pulling out of the MoU after removals have taken place."
The submission also warns: "Rwanda's record on human rights, refugee status determination and commitment to the rule of law has been the subject of consistent international criticism. The [Home Office's] Country Policy and Information Notes (CPINs) on Rwanda do not support a conclusion that Rwanda will be able to uphold the assurances [in the MoU]. Rwanda is simply not a safe third country capable of conducting Refugee Status Determination akin to the process available in the UK for those who claim asylum, and where rights under the ECHR will be respected."
Evidence by Professor Theodore Konstadinides and Dr Anastasia Karatzia of the School of Law, University of Essex addresses issues around MoUs and whether they are an appropriate vehicle for the agreement with Rwanda. The acaddemics find: "[A]n MoU is … not an appropriate vehicle for this agreement especially given i) the implications it has for individual rights, and ii) the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals' access to legal assistance, and data protection which give rise to legitimate expectations as to the other party's conduct."
The Public Law Project's (PLP) evidence also finds that a non-binding MoU is not an appropriate vehicle for the agreement with Rwanda, primarily because its terms cannot be legally enforced. "This shows a lack of commitment to rights and justice. Further, choosing an MoU avoided even the minimal parliamentary oversight to which treaties are subject," PLP said.
PLP noted: "The most significant feature of a non-binding MoU is that, unlike a treaty, the parties cannot enforce it under international law. They cannot take the matter to an international court or tribunal, or impose the countermeasures that they might be entitled to if a treaty were breached (see above). Either side can breach the terms of an MoU, or walk away, without any legal penalty."
The Refugee and Migrant Children's Consortium (RMCC) evidence focuses on the potential impact of the Rwanda scheme on unaccompanied children. RMCC said: "We are extremely concerned that due to the government's flawed approach to age disputes, there is a significant risk that children will be removed to Rwanda. It is crucial that those young people who have been determined to be over 18 by the Home Office are supported to obtain legal advice and are protected from inadmissibility procedures while they have an ongoing right to challenge the decision made on age."
Key evidence submitted by the United Nations High Commissioner for Refugees (UNHCR) makes clear that UNCHR views the UK-Rwanda arrangement as violating both the letter and spirit of the Refugee Convention.
The evidence also summaries UNHCR's concerns with Rwanda's asylum system and states: "UNHCR notes that whilst Rwanda has generously provided haven to refugees (on a group basis) for decades and has made efforts to build the capacity of its domestic asylum system, this system is still nascent. In UNHCR's assessment, there is a serious risk that the burden of processing the asylum claims of new arrivals from the UK could further overstretch the capacity of the Rwandan national asylum system, thereby undermining its ability to provide protection. As part of its submissions as intervenor in ongoing litigation, UNHCR has described its serious concerns regarding access to asylum, the due process afforded applicants, and resultant risk of refoulement given the gaps in process and decision making. It is UNHCR's assessment that long-term and fundamental engagement is required to develop Rwanda's national asylum structures to fairly adjudicate individual asylum claims. The assurances provided in the MOU and Note Verbales are largely aspirational and the process for meeting such assurances are not set out."
The submission by Joseph Crampin, lecturer in international law at the University of Glasgow, looks at the international law principles governing agreements such as the MoU. Crampin details three key reasons why the use of a non-binding MoU is undesirable: "First, the use of non-binding agreements for significant matters, such as the mass deportation of, what the MoU itself recognises to be, 'vulnerable' refugees, is antidemocratic. […] Second, the use of non-binding agreements for significant matters undermines (a) the integrity of the institution of treaty-making, and (b) the requirements of publicity and transparency that are intended to protect the purposes of the modern international legal order […] Third, non-binding agreements are inappropriate as a tool to govern the transfer of large numbers of individuals."
Joint evidence submitted by Queen Mary University of London School of Law, and University of Bristol School of Law highlights the legally problematic nature of the MoU and the detrimental human rights consequences the policy is likely to have for those affected by it.
It notes: "[I]t is doubtful whether the UK-Rwanda MoU is an appropriate vehicle for this kind of arrangement as it concerns refugee and asylum law and carries fundamental human rights implications. It therefore goes beyond matters of a mere technical and/or administrative nature but concerns legal fundamental rights issues which normally require a legally binding framework. Agreements such as this should be legally-binding instruments, challengeable and enforceable in a court of law by any affected parties."
Evidence submitted by Dr Amanda Spalding, a lecturer in law at the University of Sheffield, notes: "The vagueness around this policy, especially the refusal to publish the criteria which those removed to Rwanda will be assessed on, makes it difficult to legally evaluate it at present. It seems likely however, that there will be significant difficulties with appropriately safeguarding vulnerable persons and ensuring they are not inappropriately routed to Rwanda. This may lead to legal issues under international law such as Article 3 of the ECHR and plausibly to conflicts with national laws where the Home Office has policy positions on the safeguarding of vulnerable persons."
Spalding says we should be very concerned about the lack of clarity around how the policy will operate, and serious scrutiny is needed of the day to day operation of the policy and the safeguarding process.
Expert witness Dr Joseph Mullen notes in his evidence: "The legal basis of the MoU is questionable as the MoU was promulgated on 14 April 2022 or 14 days before the primary law instrument –the Nationality and Borders Bill- received Royal Assent. It was intended to be applied as from 14 April and even retrospectively, which in legal terms is putting 'the cart before the horse' and leaves it without a legal underpinning apart from a Ministerial 'fiat'."
The Refugee Law Initiative (RLI) at the University of London submitted evidence that focuses on issues that touch directly on the international law standards that were outlined in the Refugee Law Initiative Declaration on Externalisation and Asylum (RLI Declaration), which was adopted on 29 June 2022.
RLI said: "[I]f the MoU is not intended to be binding under international law, then any such 'obligations' created by the MoU have no legal value, making the observance of new guarantees or safeguards established by the MoU merely voluntary and discretionary for Rwanda and the UK. This fundamental legal ambiguity on the character of new guarantees and safeguards illustrates the general unsuitability of this kind of MoU as a vehicle for regulating forcible transfers under third country processing schemes. Not only does it pose a risk to the legal rights of refugee and asylum-seekers transferred pursuant to such arrangements. It also suggests that neither party to the MoU will be able to rely legally on new guarantees and safeguards apparently assumed therein by the other party, whether in bilateral disputes between the parties or in the face of legal challenges from third parties."
In its evidence, Asylos outlines a number of serious shortcomings in the current Rwandan asylum system, namely access to interpreting services and to legal assistance, the asylum appeals process, and the availability of accommodation for asylum seekers.
Asylos finds that the current Home Office country information on Rwanda is lacking and further information is needed in order to understand how the reality of the Rwandan asylum system will match up to some of the provisions set out in the MoU.
Amnesty International's evidence finds the MoU is not consistent with international law and there is a serious risk that it will lead directly or indirectly to refoulement. Amnesty concludes: "We are gravely concerned that this Arrangement breaches the UK's international law obligations and is more widely undermining of the Refugee Convention. That is consistent with much of current Home Office policy and much that has recently been commenced of the Nationality and Borders Act 2022. We have consistently warned about this. We have also warned that stated aims of the UK Government – such as to tackle people smuggling and other exploitation, fix the UK's asylum system and provide safety to people fleeing persecution – are each being contradicted and undermined by that very same policy, including this Arrangement. Indeed, it is hard to credit that several of these stated aims are truly the ambition of the UK Government."
Evidence from Dr Matilde Ventrella, senior lecturer in law from Liverpool John Moores University, addresses whether the MoU is consistent with the obligations of the European Convention on Human Rights (ECHR) and the Council of Europe Convention on Action against Trafficking in Human Beings. Ventrella finds it is not, and it breaches Article 4 of the ECHR and Article 4 and Article 29 of the Council of Europe Convention on Action Against Trafficking in Human Being. Ventrella finds further breaches of the Human Trafficking Protocol of the United Nations Convention against Transnational Organized Crime (UNCTOC).