International Agreements Committee report on the UK-Rwanda treaty

The House of Lords is scheduled to debate the following motions on 22 January 2024:

Lord Goldsmith (Labour) to move that this House takes note of the ‘Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership agreement to strengthen shared international commitments on the protection of refugees and migrants’.

Lord Goldsmith (Labour) to move that this House resolves, in accordance with section 20 of the Constitutional Reform and Governance Act 2010, that His Majesty’s Government should not ratify the UK-Rwanda agreement on an asylum partnership until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the agreement, about whether Rwanda is safe.

Lord Goldsmith chairs the House of Lords International Agreements Committee (IAC), which published a report on the UK-Rwanda treaty on 17 January 2024: ‘Scrutiny of international agreements: UK-Rwanda agreement on an asylum partnership’.

1. What is the UK-Rwanda treaty?

The UK-Rwanda treaty was signed by UK Home Secretary James Cleverly and Rwandan Foreign Minister Dr Vincent Biruta in Kigali, Rwanda, on 5 December 2023.^[1] It followed an earlier ‘Migration and economic development partnership’ (MEDP) agreement between the two countries, signed as a memorandum of understanding in April 2022.^[2] This provided for the transfer to Rwanda of all migrants entering the UK after 1 January 2022 arriving “through an illegal and dangerous route” and without a right to remain, with asylum claims processed in Rwanda by the Rwandan government.^[3]

On 15 November 2023 the UK government announced it had been seeking a treaty with Rwanda to further underpin its policy to send certain asylum seekers to the country.^[4] Prime Minister Rishi Sunak said the government would seek to “finalise the treaty […] and ratify it without delay” following the UK Supreme Court’s judgment that his government’s Rwanda policy was unlawful.^[5] The Supreme Court had two days earlier upheld a Court of Appeal judgment that the government’s policy was unlawful on the basis there were:

[…] substantial grounds for believing, notwithstanding the guarantees and assurances given, that (a) there were real risks that asylum claims would not be properly determined by the Rwandan authorities, and (b) that in consequence there were real risks of refoulement.^[6]

The Court of Appeal had concluded that “so long as such grounds existed any removals under the MEDP would contravene section 6 of the Human Rights Act [1998]”.^[7] In a unanimous decision, the Supreme Court upheld the Court of Appeal’s conclusion that the Rwanda policy was unlawful.^[8]

The Home Office said the treaty “responds directly to the conclusions of the Supreme Court and presents a new long-term solution”.^[9] It continued:

The landmark treaty is binding in international law and ensures that people relocated to Rwanda under the partnership are not at risk of being returned to a country where their life or freedom would be threatened—an act known as refoulement.

It also enhances the functions of the independent monitoring committee to ensure compliance with the obligations in the treaty, such as reception conditions, processing of asylum claims, and treatment and support for individuals including up to five years after they have received final determination of their status. The committee is made up of eight independent members.

The monitoring committee will also develop a system which will enable relocated individuals and legal representatives to lodge confidential complaints directly to them. It will have the power to set its own priority areas for monitoring, and have unfettered access for the purposes of completing assessments and reports. It may publish reports as it sees fit on its findings.

To further bolster assurances that relocated individuals will not be returned, under the treaty, Rwanda’s asylum system will be strengthened through a new appeal body. The appeal body will consist of a Rwandan and other Commonwealth national co-president, and be composed of judges from a mixture of nationalities with asylum and humanitarian protection expertise (appointed by the co-presidents) to hear individual appeals.^[10]

The treaty was laid before Parliament on 6 December 2023.^[11]

The IAC launched an inquiry on the treaty the following week.^[12] This included two oral evidence sessions, held on 18 and 19 December 2023 respectively, including a “short session” with Home Secretary James Cleverly.^[13] The committee also received a follow-up letter from Mr Cleverly on 11 January 2024 and took a range of written evidence.^[14]

Mr Sunak had on 15 November 2023 also said the proposed UK-Rwanda treaty would be accompanied by new legislation which would “enable Parliament to confirm that, with our new treaty, Rwanda is safe”.^[15] The government introduced a bill, the Safety of Rwanda (Asylum and Immigration) Bill, on 7 December 2023.

2. What did the committee’s report say?

The committee’s report considered “whether the treaty does in fact provide Parliament with a basis for declaring through the [Safety of Rwanda (Asylum and Immigration) Bill] that Rwanda is a safe country”. In addition to a summary of the legal challenges to the government’s Rwanda policy, the report noted the government’s bill, introduced in the House of Commons the day after the treaty was laid before Parliament, was dependent on the treaty’s entry into force. On this, the committee made a preliminary point on the separation of powers:

We agree with those witnesses who urged us to pay close attention to the constitutional principle of the separation of powers. The separation of powers requires both the courts and Parliament to exercise restraint and to respect the proceedings and rulings of the other. It would therefore be constitutionally inappropriate for Parliament to seek through statute to overturn findings of fact by the Supreme Court, especially when the bill includes an ouster clause excluding judicial review. Although the government is arguing that the facts have changed because of the treaty, in our view it is still particularly important that, when assessing the treaty, this committee—and Parliament more widely—should pay close attention to the reasoning of the UK Supreme Court in finding that Rwanda was not a safe country.^[16]

The report’s summary conveyed the committee’s key conclusions about the treaty:

The Rwanda treaty underpins the Safety of Rwanda (Asylum and Immigration) Bill by which the government proposes that Parliament should declare through legislation that Rwanda is a safe country, notwithstanding the findings of the Supreme Court. Parliament is asked to make this declaration—which under the bill cannot be challenged in the courts—on the basis of the arrangements provided by the Rwanda treaty.

The Rwanda treaty puts into legally binding form the arrangements previously set out in a 2022 memorandum of understanding with Rwanda, but with some enhancements, notably a new asylum procedure and a commitment that no person relocated under the treaty to Rwanda will be sent to any country other than the UK, if the UK so requests.

On paper the Rwanda treaty improves the protections previously set out in the memorandum of understanding, but there are a significant number of legal and practical steps which need to be taken before the protections could be deemed operational such that they might make a difference to the assessment reached by the Supreme Court. Evidence that these arrangements have bedded down in practice is also needed. In short, the treaty is unlikely to change the position in Rwanda in the short to medium term.

We recommend that the treaty is not ratified until Parliament is satisfied that the protections it provides have been fully implemented since Parliament is being asked to make a judgement, based on the treaty, about whether Rwanda is safe. The government should submit further information to Parliament to confirm that all the necessary legal and practical steps and training which underpin the protections provided in the treaty have been put in place, and then allow for a further debate before proceeding to ratification.^[17]

3. What happens next?

The scrutiny period for the treaty provided for by section 20 of the Constitutional Reform and Governance Act 2010 (CRAG Act 2010) expires on 31 January 2024.^[18] Under the statutory framework provided for in the CRAG Act 2010, the House of Commons has the power to delay the ratification of a treaty. The House of Lords can also resolve that a treaty should not be ratified. However, the government can override this if it lays a statement before the House.^[19]

The committee argued the government’s approach to information sharing had made the scrutiny process more difficult than usual:

The statutory deadline for parliamentary scrutiny of a treaty is 21 sitting days, which is a very short period to allow for proper consideration and debate of a politically significant international agreement such as the Rwanda treaty. The government has made the treaty scrutiny process more difficult by releasing a large quantity of relevant new information more than a month after laying the treaty in Parliament at the same time as revising information which it published only in December [2023], thus preventing full scrutiny by witnesses to this inquiry. The government also delayed sending replies to the committee’s inquiries. This conduct illustrates more generally the defects and limitations of the current statutory framework for scrutinising treaties under the Constitutional Reform and Governance Act 2010 (CRAG), which is in need of reform.^[20]

The House of Commons passed the Safety of Rwanda (Asylum and Immigration) Bill on 17 January 2024.

4. Read more

• House of Lords International Agreements Committee, ‘Scrutiny of international agreements: UK-Rwanda agreement on an asylum partnership’, 17 January 2024, HL Paper 43 of session 2023–24; ‘Rwanda treaty should not be ratified until its safeguards have been implemented, says Lords committee’, 17 January 2024; and ‘UK-Rwanda asylum agreement: Inquiry—publications’, accessed 17 January 2024
• Home Office, ‘Treaty signed to strengthen UK-Rwanda migration partnership’, 5 December 2023; and ‘UK-Rwanda treaty: Provision of an asylum partnership’, 5 December 2023
• Foreign, Commonwealth and Development Office, ‘UK-Rwanda: Agreement for the provision of an asylum partnership to strengthen shared international commitments on the protection of refugees and migrants (CS Rwanda No 1/2023)’, 6 December 2023, CP 994
• House of Commons Library, ‘UK-Rwanda migration and economic development partnership’, 6 December 2023; ‘Safety of Rwanda (Asylum and Immigration) Bill 2023–24’, 8 December 2023; ‘Safety of Rwanda Bill: Legal commentary’, 12 January 2024; and ‘Parliament’s role in ratifying treaties’, 17 February 2017
• UK Parliament, ‘Safety of Rwanda (Asylum and Immigration) Bill’, accessed 17 January 2024
• Home Office, ‘Safety of Rwanda (Asylum and Immigration) Bill: Collection’, updated 11 January 2024
• UK Supreme Court, ‘R (on the application of AAA and others) v Secretary of State for the Home Department [2023] UKSC 42’, 15 November 2023

---

Cover image by Andy Taylor/Home Office on Flickr.