Procedural Fairness as Prerequisite: The UK-Rwanda Asylum Relocation Deal and the Right to Non-Refoulement

As Hannah Arendt predicted nearly a century ago, the refugee crisis is the greatest test of the human rights paradigm. [1] An estimated 103 million people have been forcibly displaced worldwide. [2] ​​In response to increased “small-boat” refugees, the United Kingdom entered a deal with Rwanda in April 2022 to allow the British Home Office, the state immigration and security department, to relocate asylum seekers from the UK to Rwanda. [3] An emergency injunction from the European Court of Human Rights in June halted the first round of deportations, leading to a class-action lawsuit, R. v Secretary of State (2022), that challenged the policy. [4] The Divisional Court subsequently ruled against the challenge in December, and individual appeals are currently underway. The case is complicated by complex refugee law, but procedural fairness during the asylum process underpins the key legal issues at stake as the prerequisite to upholding all other fundamental human rights. Under this framework, the Home Office can be held in breach of the asylum seekers’ right to non refoulement by failing to fulfill relevant procedural obligations and violating asylees’ due process rights.

Upon traveling from France to the UK via boat, all asylum seekers were detained before undergoing language assessments, health checkups, and being provided methods to obtain legal counsel to file an asylum claim. Each claimant then attended an initial screening interview, with no legal counsel being offered by the state, to provide basic information as an “initial opportunity” to explain their circumstances. [5] The Home Office determined that each claim qualified as an inadmissibility ruling as outlined in the Immigration Rules 345A-D, which established that an asylum application was inadmissible if the applicant had passed through or had the opportunity to apply for asylum in a “safe third country” prior to arrival in the UK; once deemed inadmissible, the claimants became eligible for removal. [6] The Home Office then issued to each claimant a Notice of Intent that declared the claimant’s possible inadmissible status and subsequent removal. The claimant was given seven days to provide additional arguments, with the counsel’s advice, to dispute both decisions. The Home Office then revisited the decisions based on available information. These final decisions were certified such that the claimant could no longer appeal a deportation decision on human rights grounds. [7]

In both international human rights law and English common law, procedural fairness is a widely-respected, general legal principle that can be traced to the Magna Carta. [8] Procedural fairness can thus be perceived as the legal principle that grants specific due process rights, the most fundamental of which is the right to a fair trial, which Article 6(1) of the European Convention on Human Rights (ECHR) defines for the UK. [9] The ECHR notes that the scope of this right “applies irrespective” of citizenship or court jurisdiction (criminal versus civil). [10] Hence, the right to a fair trial includes immigration court procedures, and indicates a high standard of rigor and broad applicability of procedural fairness rights under European law. Even asylum seekers are entitled to at least the most basic due process rights: knowledge of the case, an opportunity to be heard, and a right of appeal. [11]

As the United Nation High Commissioner for Refugees (UNHCR)’s Advisory Opinion affirms, procedural fairness safeguards the “full and inclusive application” of rights established by the 1951 Refugee Convention, particularly non refoulement in Article 33 that prohibits expelling a refugee to any location where life would be threatened based on identity. [12] In Ilias and Ahmed v. Hungary (2020), the ECHR established that if a state is to expel an asylum seeker without violating non refoulement, then it must fulfill at least two procedural obligations: (1) the state must have conducted “a thorough examination” of the general conditions in the country of removal and the quality of its asylum system, and (2) the applicant in question must have been given “sufficient opportunity” to make claims regarding their particular case. [13] The Home Office therefore had a duty to determine that Rwanda was both generally and specifically safe for each claimant prior to any removal decision.

While the first Ilias obligation required the Home Office to conduct a “thorough examination” using all “generally available information” to foreground any decision, that decision must also be scrutinized for reasonability under the standard of care established in Secretary of State for Education and Science v. Tameside MBC (1976). [14] This standard is specific to higher-stakes decisions taken by authorities, and is accordingly more rigorous than the typical “reasonable person” standard in tort law. [15] In that sense, Tameside reasonability is comparable to the American “compelling reason” standard in that the Home Office must show not just “rationality” but a “compelling reason” to believe that Rwanda is a safe third country for the claimant. [16] Unlike during regular asylum procedures where the applicant must prove credible fear in the country of origin, the burden of proof lies with the expelling state when refoulement is possible. When determining that Rwanda was generally safe, the Home Secretary relied on four assessment documents that failed to consider two important pieces of evidence: testimonies regarding Rwanda’s performance in a similar asylum agreement with Israel in 2016 and a UNHCR witness statement on Rwanda’s deficient asylum system. [17]

In 2016, Israel entered into a secret contract with Rwanda and Uganda to send Eritrean and Sudanese asylum seekers to the latter two states under “Voluntary Departure.” Several asylum seekers were reportedly denied application for asylum upon entry to Rwanda despite promises from both governments, leaving them in uncertain legal status and at risk of personal security threats. Some were refouled to Libya, where they were subsequently killed by ISIS. [18] While the Divisional Court correctly noted that the UK policy—with its stipulations regarding accountability and transparency—differs significantly from the Israel agreement, nothing in the UK policy is enforceable as its medium – a Memorandum of Understanding – is not legally binding. [19] Further, the discrimination and danger faced by Eritrean and Sudanese asylum seekers in Rwanda clearly indicates that Rwandan officials’ attitude towards asylum and relevant international rights is one of disregard. In other words, asylum rights are not normalized under rule of law, and are thus perpetually uncertain. Even if monitoring bodies are in place, these mechanisms cannot definitively ensure every claimant’s rights and safety. Such direct precedence should not have been ignored in the Home Secretary’s assessment, nor in the Divisional Court’s decision.

Following this precedent, the UNHCR also reported on the Rwandan asylum system’s limitations and failures. [20] The Home Office dismissed this statement on the grounds that Rwanda’s asylum laws were in compliance with international standards and that Rwandan authorities had given assurances of the quality of their asylum system in agreement documents between the UK and Rwanda. [21] This conclusion is unreasonable, considering that there is an immense gap between what is written in the law (de jure) and what is true in reality (de facto). In that regard, logic points to the third-party refugee rights agency having a more credible and unbiased account of de facto conditions than the Rwandan government, which receives monetary compensation for every refugee they receive from the UK. [22] Combined with the failure to assess Israel’s precedent, the Home Office’s assessment that conditions in Rwanda are generally safe is flawed, failing to meet the Ilias obligation of thoroughly examining available information and the Tameside reasonability standard. 

The second Ilias obligation requires the Home Office to provide a fair opportunity for each claimant to make a case against the inadmissibility ruling or the decision to remove to Rwanda, with regards to their specific circumstances. The Immigration Rules’ language appears to conform to this standard of individuality, naming “the applicant” in every clause regarding qualifications for inadmissibility decisions and conditions required of a “safe third country.” [23] Such language necessitates considering each condition in the context of the claimant’s case rather than making general rulings about the destination country. However, the actual asylum procedures are less clear-cut; due process issues at both the interview and appeals stage implicate the fairness of the claimant’s opportunity to be heard.

First, no claimant was provided with legal counsel before or during the screening interview, nor were they informed of the qualifications for an inadmissibility decision and possible removal to Rwanda. [24] The Divisional Court believed that neither rights were pertinent at this stage because the interview asked only for facts, but questions of fact are undeniably legal in nature—fact-finding is one of trial court’s primary duties. [25] This is especially true when said facts served to incriminate the claimants with deportation as penalty. Considering that all claimants were foreign nationals with no knowledge of local law, it is unreasonable to expect the claimants to make adequate and supported legal representations without access to these rights. It certainly would not have occurred to them to discuss their safety concerns in Rwanda when they arrived in the UK. Thus, in neglecting due process rights, the information found in the interview alone would not have been sufficient to conclude that Rwanda qualified as a safe third country for the claimant on an individual basis.

The appeals stage is the seven-day dispute period following the issuance of the Notice of Intent, during which the claimant must locate a suitable legal representative, then formulate their disputes regarding both the inadmissibility decision and the safety of the potential countries of removal. [26] Such a time crunch further prevents the claimant from preparing a judicial review request, should they wish to challenge the final decision.

A closer look at the Notice of Intent reveals a shift in the burden of proof that subtly but significantly raises the likelihood for the claimant’s case to fail, a maneuver which the Divisional Court overlooked in the December decision. The Notice required the claimant to supply reasons as to why they should not be deemed inadmissible or be removed. already presuming that the Home Secretary’s decision would be correct. [27] This places the burden of proof on the claimant rather than the Home Office as described in the Immigration Rules 345A, which dictate that an inadmissibility ruling was only possible when the head of the Home Office “determines” that one of the conditions in paragraphs (i)-(iii) were met. [28] Requiring the Home Office to prove one positive possibility or fact is a vastly different standard than requiring the claimant to prove the impossibility of all the conditions raised, including the difficult task of proving that they could not have made an asylum claim in a passenger country. 

Considering all these facts and patterns, it is undeniable that the claimants were not given a fair opportunity to present their personal safety concerns in Rwanda—not during the interview, and certainly not during the appeals stage. The Home Office accordingly failed the second Ilias obligation. Failing either procedural obligation corresponds to a  violation of non refoulement, though other rights granted by relevant human rights conventions may also be in danger per the Soering Principle. This principle arises from the European Court’s ruling in Soering v. The United Kingdom (1989) that a state party to the ECHR can be held in breach of a Convention right simply by extraditing an individual to a state in which they would face a violation of that right. [29] Since Soering was extended to refugee expulsion via an application in Ilias, the UK may be held liable for violating due process rights during the asylum process and violating nonrefoulement as a result, as well as violating the Convention rights that the claimant would face in Rwanda, such as freedom from torture (ECHR Article 3) or secondary refoulement. [30]

Protecting due process rights is integral in fulfilling countless other rights. The UK’s abrogation of its duty to procedural fairness during these asylum proceedings, and the Divisional Court’s subsequent failure to address said abrogation sets an egregious precedence that may have cascading legal implications for asylum policies worldwide, including using offshore processing centers, intercepting asylum seekers pre-arrival, and emerging asylum bans. In an age of militarizing borders and increasing xenophobia, one can only hope for the Appeals Court to correct this wrong as the future of human rights for stateless people rests upon that gravely anticipated decision.

Edited by Alicia Lopez-Guerra

[1] Giorgio Agamben and Cesare Casarino (Translator), “Beyond Human Rights: A Potential Politics,” in Radical Thought in Italy: A Potential Politics, ed. Paolo Virno, Michael Hardt (Minneapolis : University of Minnesota Press, 1996), 159-165.

[2] United Nations High Commissioner for Refugees [hereafter UNHCR], “Refugee Population Statistics Database,” United Nations, last modified October 27, 2022, https://www.unhcr.org/refugee-statistics/.

[3] Home Office, “About Us,” United Kingdom Government, accessed April 8, 2023, https://www.gov.uk/government/organisations/home-office/about; Home Office, “Memorandum of understanding between the UK and Rwanda,” United Kingdom Government, April 14, 2022.

[4] European Court of Human Rights, “Interim measure granted in case concerning asylum-seeker’s imminent removal from the UK to Rwanda,” Council of Europe, June 14, 2022, https://hudoc.echr.coe.int/eng-press?i=003-7359967-10054452, 1; R. v. Secretary of State [2022] EWHC 3230 (UK), [6]-[10].

[5] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 31.

[6] Immigration Rules, Part 11: Asylum § 326A-352H, in effect 2020-2021, ¶ 345A-D (UK).

[7] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 29-35.

[8] D.J. Galligan, “Procedural Fairness in the English Common Law,” Chapter 5 of Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford: Oxford University Press, 1997), 167-186.

[9] Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6 § 1, Nov. 4, 1950, C.E.T.S. No. 005 [hereinafter European Convention on Human Rights]

[10] European Court of Human Rights, “Guide on Article 6 of the European Convention on Human Rights - Right to a Fair Trial (Civil Limb),” Council of Europe, August 31, 2020, https://www.echr.coe.int/documents/guide_art_6_eng.pdf, I(A) ¶ 1-2.

[11] Guy S. Goodwin-Gill, “International Law and the Detention of Refugees and Asylum Seekers,” in The International migration Review 20, no. 2 (Summer 1986): 193-219, https://doi.org/10.2307/2546031, 208-209.

[12] UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol,” United Nations, January 26, 2007, https://www.unhcr.org/4d9486929.pdf, footnote 14; Convention Relating to the Status of Refugees, art. 31 § 1, July 28, 1951, 189 U.N.T.S. 2545 [hereinafter Refugee Convention]

[13] Ilias and Ahmed v. Hungary, App. No. 47287/15, ¶ 139 (Nov. 21, 2019), https://hudoc.echr.coe.int/eng?i=001-198760; Ilias and Ahmed v. Hungary, App. No. 47287/15, ¶ 148 (Nov. 21, 2019).

[14] Ilias and Ahmed v. Hungary, App. No. 47287/15, ¶ 148 (Nov. 21, 2019); Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014 (UK), ¶ 1016.

[15] Wex Definitions Team, “reasonable person,” Legal Information Institute, Cornell Law School, accessed April 9, 2023, https://www.law.cornell.edu/wex/reasonable_person. 

[16] Kern Alexander and Vivian Williams, “Judicial Review of Educational Policy: The Teachings of Tameside,” in British Journal of Educational Studies 26, no. 3 (Oct. 1978): 224-233, https://www.jstor.org/stable/3120732, 229.

[17] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 28, ¶ 67-68, 47-54.

[18] International Refugee Rights Initiative, “‘I was left with nothing’: ‘Voluntary’ departures of asylum seekers from Israel to Rwanda and Uganda,” IRRI, September 8, 2015, http://refugee-rights.org/wp-content/uploads/2017/11/IWasLeftWithNothing.pdf, 2, 23.

[19] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 65-68; UNHCR, “UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum-Seekers under the UK-Rwanda Arrangement.” United Nations, June 8, 2022, https://www.unhcr.org/en-us/publications/legal/62a317d34/unhcr-analysis-of-the-legality-and-appropriateness-of-the-transfer-of-asylum.html, ¶ 12.

[20] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 51-54.

[21] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 55.

[22] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 25-26; see also Home Office, “Memorandum of understanding between the UK and Rwanda,” United Kingdom Government, April 14, 2022, ¶ 19. 

[23] Immigration Rules, ¶ 345A-B.

[24] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 382-390.

[25] R. v. Secretary of State [2022] EWHC 3230 (UK), ¶ 397-398.

[26] Home Office, “Inadmissibility - third country cases: caseworker guidance,” United Kingdom Government, last modified June 28, 2022, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1084315/Inadmissibility.pdf, 30 [hereafter Inadmissibility Guidelines]

[27] Inadmissibility Guidelines, 30.

[28] Immigration Rules, ¶ 345A.

[29] Soering v. United Kingdom, App. No. 14038/88, ¶ 91 (July 7, 1989).

[30] Ilias and Ahmed v. Hungary, App. No. 47287/15, ¶ 126 (Nov. 21, 2019); European Convention on Human Rights, art. 3.

[31] Human Rights Watch, “Biden ‘Asylum Ban’ Rule Would Send Thousands to Danger,” by Ari Sawyer, February 28, 2023, https://www.hrw.org/news/2023/02/28/biden-asylum-ban-rule-would-send-thousands-danger.