CBP 9568

Research Briefing
By Melanie Gower,
Patrick Butchard,
CJ McKinney
The UK-Rwanda Migration and
20 December 2022
Economic Development
Partnership
Summary
1 The agreement between the UK and Rwanda
2 Are there comparable precedents?
3 International legal issues
4 Legal challenges and court decisions
Annex: Parliamentary scrutiny and approval
commonslibrary.parliament.uk
Number 9568 The UK-Rwanda Migration and Economic Development Partnership
Image Credits
UK-Rwanda agreement by UK Home Office. Licensed under CC BY-2.0 /
image cropped.
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2 Commons Library Research Briefing, 20 December 2022

The UK-Rwanda Migration and Economic Development Partnership
Contents
Summary 4
1 The agreement between the UK and Rwanda 6
1.1 Announcement and reactions 6

1.2 Key elements of the asylum partnership arrangement 9
1.3 How are people chosen for relocation? 13
1.4 Parliamentary scrutiny 15
1.5 Outstanding questions 17
2 Are there comparable precedents? 23
2.1 UNHCR’s Emergency Transit Mechanism project in Rwanda 23

2.2 The Blair Government’s proposals 25
3 International legal issues 26
3.1 UNHCR opposition to UK’s plans 26

3.2 The Refugee Convention 27
3.3 Externalisation policies and ‘safe third countries’ 31
3.4 European Convention on Human Rights 36
3.5 Other substantive and procedural protections 37
4 Legal challenges and court decisions 39
4.1 First flight halted following legal challenges 39

4.2 The High Court’s decision 41
Annex: Parliamentary scrutiny and approval 44

Summary
The UK intends to send some asylum seekers to Rwanda to seek asylum there,
without the possibility of return. Nobody has yet been sent to Rwanda amid
ongoing legal challenges, although the High Court upheld the overall
lawfulness of the policy in December 2022.
The asylum partnership arrangement

The UK and Rwanda agreed a Migration and Economic Development
Partnership in April 2022. It includes a five-year ‘asylum partnership
arrangement’ as detailed in a Memorandum of Understanding (MoU) signed
by the UK Home Secretary and Rwanda’s Minister of Foreign Affairs.
The asylum arrangement allows the UK to send some people to Rwanda who
would otherwise claim asylum in the UK. Rwanda will consider them for
permission to stay or return to their country of origin. They will not be eligible
to return to the UK.
In return, the UK has provided £120 million in development funding to

Rwanda. It will also pay for the processing and integration costs for each
relocated person. Ministers expect these will be similar to asylum processing
costs in the UK (around £12,000 per person). The UK has also committed to
resettling a small but unspecified number of vulnerable refugees currently in
Rwanda.
Relocation of ‘inadmissible’ asylum seekers

The Home Office is initially using the relocation agreement to remove people
who make dangerous journeys to the UK and are considered ‘inadmissible’ to
the UK’s asylum system. Inadmissibility applies to people who pass through or
have a connection with a safe country, including people who make irregular
journeys across the English Channel.
People whom the Home Office wishes to transfer to Rwanda will be identified
and referred to the Rwandan authorities on a case-by-case basis, after an
initial screening process following arrival in the UK.

Outstanding questions
There are several unknowns about the arrangement and its likely outcomes.
For example, there is considerable uncertainty about the impact on the
number of irregular arrivals and asylum claims in the UK.
The Home Office not published estimates of the number of people it expects to
relocate or detailed costings for the policy. The department says Rwanda has
initial capacity for 200 people but plans to increase that once flights begin.
Precedents for ‘externalisation’ of asylum

The Government has cited policies implemented by Australia over the past
decade or so, including offshore asylum processing, in support of its plan.
It has also sought to counter some criticisms of the UK-Rwanda deal by

suggesting that the EU and UN Refugee Agency have supported schemes to
remove asylum seekers to Rwanda, and by highlighting a previous Labour
administration’s interest in processing asylum claims outside the UK.
International legal issues

The arrangement has been controversial, including in Parliament and among
some Conservatives. Critics have highlighted concerns about the policy’s
legality, practicality, morality, efficacy and expense.
Refugee rights organisations object in principle to the use of ‘externalisation’

policies and consider that the deal undermines the post-WW2 international
protection regime. The UN Refugee Agency and other refugee law experts
have questioned whether the deal is compatible with the UK’s obligations
under refugee and human rights laws.
Legal challenges
Nobody has been removed under the UK-Rwanda asylum partnership since
the policy was announced. The first planned flight on 14 June 2022 was halted
following a controversial European Court of Human Rights injunction.
On 19 December 2022, the High Court found that the Rwanda arrangements
are lawful overall. Appeal applications are expected. The Home Secretary
welcomed the judgment and said the Government would press ahead with
removals “once the litigation process has come to an end”.

1 The agreement between the UK and

Rwanda
1.1 Announcement and reactions
On 14 April 2022, the UK and Rwanda announced a Migration and Economic

Development Partnership (MEDP).
This bilateral agreement centres around an ‘asylum partnership

arrangement’. The arrangement allows the UK to ask Rwanda to assume
responsibility for some people who would otherwise seek asylum in the UK.
After transfer to Rwanda, relocated individuals will be able to apply to
Rwanda for permission to stay.
Those refused will face removal to their country of origin or previous legal
residence. No-one will be eligible for return to the UK.
The UK is paying Rwanda an unspecified amount for each relocated person, to

cover the costs associated with processing their cases. It is also funding a
five-year integration package for each person granted asylum in Rwanda and
providing £120 million to Rwanda in development funding. The British
Government has also committed to resettle in the UK a small number of
vulnerable refugees currently in Rwanda.
Details of the asylum partnership arrangement were set out in a

Memorandum of Understanding (MoU) document. 1 The deal was also
summarised in a Home Office press release, World first partnership to tackle
global migration crisis, and a media factsheet: Factsheet: Migration and
Economic Development Partnership.
The partnership agreement is part of a broader set of changes to the asylum

system, under the overarching New Plan for Immigration policy agenda. 2 The
prospect of relocation to Rwanda is one of the ways in which the Government
is seeking to deter people who make irregular journeys to the UK rather than
claiming asylum in countries they pass through on the way (such as France).
1
Home Office, Memorandum of Understanding between the government of United Kingdom of Great
Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an
asylum partnership arrangement, 13 April 2022
2
The Plan’s central objectives are to increase the fairness and efficacy of the asylum system, deter
illegal entry to the UK, and remove more easily people without the right to remain in the UK.

Controversy
The Government’s interest in securing asylum partnership agreements with
other states was well-known and commented on throughout the passage of
the Nationality and Borders Act 2022. Nevertheless, the announcement of the
MEDP with Rwanda generated considerable controversy and commentary
domestically and overseas.
Some opposition parties in Rwanda have objected to the scheme. 3 The EU

Commissioner for Home Affairs, Ylva Johansson, has also criticised it for not
being a “humane and dignified migration policy”. 4
The arrangement has been opposed in Parliament, including by the former

Prime Minister, Theresa May, and some other senior Conservatives. 5 Their
criticisms have highlighted concerns about the policy’s likely legality,
practicality, efficacy and expense. The Archbishop of Canterbury has said that
the plan does not stand the judgment of God, and some Home Office officials
have also reportedly raised objections. 6
Aside from practical concerns, asylum rights advocates object in principle to

the use of ‘externalisation’ policies by developed states such as the UK. 7 In
April 2022, a coalition of over 150 civil society organisations wrote to the
Prime Minister and Home Secretary outlining their opposition to the policy.
Refugee law practitioners and academics have argued that the deal
undermines the post-World War 2 international protection regime. The
Migration Policy Institute think tank has commented that it “advances the
idea that states can pay to cast off the responsibilities they signed up to
under the 1951 Geneva Convention”. 8
The UN Refugee Agency (UNHCR) said the UK was abdicating responsibility to

others and therefore threatening “the international refugee protection
regime, which has stood the test of time, and saved millions of lives”:
The UK has supported UNHCR’s work many times in the past and is providing
important contributions that help protect refugees and support countries in
conflicts such as Ukraine. However, financial support abroad for certain
refugee crises cannot replace the responsibility of States and the obligation to
3
“Rwandan opposition criticises deal to accept UK’s asylum seekers”, The Guardian [online], 14 April
2022
4
“Migrant crossings: PM defends Rwanda plan as ‘the morally right thing to do”, Sky News [online],
15 April 2022
5
HC Deb 19 April 2022 c29; David Davis, “Hard-won Brexit freedoms shouldn’t be abused to outsource
asylum”, The Times [online], 19 April 2022; Andrew Mitchell, “The Government’s Rwanda plan will be
impractical, ineffective – and expensive”, Conservative Home [online], 19 April 2022
6
“UK’s Rwanda asylum plan the ‘opposite of nature of God’ – Welby”, BBC News [online], 17 April
2022; “Home Office perm sec ‘tells staff to get on with’ Rwanda asylum scheme”, Civil Service World
[online], 22 April 2022
7
Refugee Council, Briefing on the UK Government’s agreement with Rwanda, April 2022
8
Migration Policy Institute, Commentaries, The UK-Rwanda Agreement Represents Another Blow to
Territorial Asylum, April 2022

receive asylum seekers and protect refugees on their own territory –

irrespective of race, nationality and mode of arrival.
While UNHCR recognizes the challenges posed by forced displacement,

developed countries are host to only a fraction of the world’s refugees and are
well resourced to manage claims for asylum in a humane, fair and efficient
manner. 9
In contrast, the UK and Rwandan Governments contend that the global

asylum system is “broken”. They believe the MEDP is a “world-leading”
approach which “can set a new international standard” and will support the
humane and respectful treatment of refugees. 10 They argue:
[it] is a first-class policy that will see major investment in jobs, skills, and
opportunities in Africa. [...]
And it is a template for how to deliver a fairer and more effective global asylum
system – one that deters criminality, exploitation and abuse, and promises a
bright new future for those who find a new home in a wonderful country. 11
Ministers have accused critics of failing to offer a viable alternative. 12 One of

the policy’s supporters, Tony Smith (a former head of UK Border Force), has
welcomed the deal for having “opened up a very real possibility of removing
persons who enter illegally to another country”. Writing in The Telegraph, he
suggested it reflected the limited options available to the Government:
It takes two to tango. Absent any international collaboration from France, the
EU or source and transit countries, the Government has nowhere to go other
than to negotiate returns agreements like this with countries like Rwanda.
Anything less means, in effect, open borders. If that’s what refugee groups and
lawyers are advocating, then they should be honest about it and say so. 13
While the agreement was reached under the Johnson Government, Rishi
Sunak has said that his administration remains committed to implementing
it. 14
The Labour Party has said it would cancel the Rwanda plan. 15
9
UNHCR UK, UN Refugee Agency opposes UK plan to export asylum, 14 April 2022
10
Home Office press release, Home Secretary and Rwandan Minister Biruta visit Geneva, 19 May 2022
11
Priti Patel and Vincent Biruta, “Repairing the broken asylum system is a moral imperative”, 19 May
2022
12
“Priti Patel: Rwanda plan critics ‘fail to offer their own solutions’”, The Guardian [online], 18 April
2022
13
Tony Smith, “Time to push ahead with Rwanda deportations, no matter what the lawyer-activists
say”, The Telegraph [online], 23 May 2022
14
HC Deb 13 December 2022 cc909-910
15
Labour Party, Yvette Cooper Conference Speech, 27 September 2022

1.2 Key elements of the asylum partnership

arrangement
The Memorandum of Understanding (MoU) was signed on 13 April by the then

Home Secretary, Priti Patel, and Rwanda’s Minister of Foreign Affairs and
International Cooperation, Vincent Biruta. It came into force on the same
date.
The stated purpose of the asylum partnership is to:
create a mechanism for the relocation of asylum seekers whose claims are not
being considered by the United Kingdom, to Rwanda, which will process their
claims and settle or remove (as appropriate) individuals after their claim is
decided. 16
Rwanda commits to processing individual cases in accordance with its

domestic law, the 1951 Refugee Convention (which it is a signatory to), and
current international standards including international human rights law and
assurances given in the MoU.
The MoU states the parties to the agreement will make “all reasonable
efforts” to resolve disputes. However, it is not legally binding. The MoU
explicitly confirms that the arrangement is not justiciable in a court of law
and does not confer rights or obligations. 17
The agreement is due to last for five years but can be renewed. The clock
stops ticking if a court order requires suspension of the arrangements. The
agreement can be terminated at any time if both parties agree. 18
The UK’s responsibilities in the MoU

Rwanda needs to approve each individual transfer request before the person
is relocated. The timing of a relocation request is determined by the UK, but
requests will not be made before the person has been through an initial
asylum screening process in the UK.
The MoU does not specify any minimum or upper limit on the number of
transfer requests made. 19
When submitting a transfer request to Rwanda, the UK commits to providing

the person’s basic biographical details (name, sex, nationality, date of birth
and travel document details). It also commits to passing on details of any
16
Home Office, Memorandum of Understanding 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 arrangement, 14 April 2022, para 2.1
17
As above, para 2.2
18
As above, para 23
19
As above, para 3

special needs the person may have that would need to be accommodated in
Rwanda; any health issues it would be necessary for Rwanda to know before
the person’s arrival (with the individual’s consent); any security issues known
to the UK; any available biodata and biometric data for the individual
(subject to establishing data sharing processes); and any further information
requested by Rwanda and agreed to by the UK. 20
The UK is not obliged to disclose information “if it would be contrary to

domestic laws or the United Kingdom’s international obligations”. 21 Annex A
to the MoU contains further provisions on data management and protection.
The UK assumes responsibility for arranging (and funding) transport to

Rwanda, including the provision of escorts where necessary. 22
After arrival in Rwanda: Asylum processing and

reception arrangements
Rwanda promises to provide all arrivals with accommodation and support
that is adequate to ensure their “health, security and wellbeing”. People are
free to enter and leave the allocated accommodation at all times, “in
accordance with Rwandan laws and regulations as applicable to all residing
in Rwanda”. 23 There is more detail on these assurances in a ‘note verbale’
accompanying the MoU. 24
Relocated people who claim asylum in Rwanda must be processed by

Rwanda’s asylum system in accordance with its national and international
legal obligations.
The MoU specifies certain procedural safeguards for asylum applicants. These
are:
• A commitment to ensure that they are treated in accordance with the

Refugee Convention, Rwandan immigration laws and international and
Rwandan standards, including ensuring protection from inhuman and
degrading treatment and refoulement.
• Access to an interpreter and to procedural or legal assistance at every

stage of the asylum claim, including an appeal against a decision made
on their case.
• Access to an independent and impartial due process of appeal for

refused applicants, in accordance with Rwandan laws.
20
As above, para 5.1-5.4
21
As above, para 5.4
22
As above, para 6
23
As above, para 8
24
Home Office, Note Verbale on assurances in paragraphs 8 and 10 of the MoU between the United
Kingdom and Rwanda for the provision of an asylum partnership arrangement, 28 November 2022,
Part 2

The Home Office’s assessment of Rwanda’s asylum system provides detailed

information about the country’s existing approach to determining individual
asylum claims. It notes, for example, that the normal Rwandan process does
not provide legal assistance at the initial stage of the asylum determination
process (although some people can access support via UNHCR and a local
NGO). The initial decision on eligibility for asylum is made by the Refugee
Status Determination Committee.
There is a two-tier appeal system. The first appeal is to a government

minister, who can convene a committee to review the initial decision. The
second tier is an appeal to the High Court. Free legal support is available at
the second tier.
Under the MoU, people who do not claim asylum will have their residence
status considered on other grounds in accordance with Rwandan immigration
laws. 25
Details of the asylum process to be followed in Rwanda, including the

interview, legal advice and appeal rights, are contained a second ‘note
verbale’. 26
Possible case outcomes and post-decision entitlements

People who are relocated from the UK to Rwanda will not be eligible for return
to the UK under the partnership arrangement, regardless of the outcome of
their case.
People who are found to be eligible for asylum will be granted refugee status
(or an equivalent status for non-Refugee Convention cases) by Rwanda.
Rwanda commits to providing “the same level of support and
accommodation” that the person received while their claim was being
decided, as well as “integration into society and freedom of movement in
accordance with the Refugee Convention”. 27
Rwanda promises to ensure that people who are refused asylum are given
information about applying for permission to stay on other grounds. It will
also ensure that they are given “adequate support and accommodation for
[their] health and security” until they regularise their immigration status or
leave Rwanda.
People ineligible to remain in Rwanda will be liable to removal to a country

where they have a right to reside. The MoU states that Rwanda will regularise
25
of an asylum partnership arrangement, 14 April 2022, para 9
26
Home Office, Note Verbale on assurances in paragraph 9 of the MoU between the United Kingdom
and Rwanda for the provision of an asylum partnership arrangement, 28 November 2022
27
The 1951 Refugee Convention provides recognised refugees with some specific rights, including
relating to employment, education and welfare. In some areas it requires treatment equal to the
host state’s nationals.

the person’s status in Rwanda if there is no prospect for the person’s removal
but does not specify a timeframe for reaching such a conclusion. 28
The parties’ joint understanding of the MoU’s provisions on post-decision

treatment is also fleshed out in an accompanying note verbale. 29
Monitoring and oversight

A Joint Committee comprising of representatives of the UK and Rwandan
Governments (mostly officials) has been set up as required by the MoU. Its
role is to monitor and review implementation of the asylum partnership
arrangement and to make non-binding recommendations. It serves as a
forum to exchange information, discuss best practice, and resolve technical
or administrative issues.
The Joint Committee will meet at least once every six months and four times
during the first year of the partnership. The first meeting took place on 31 May
2022. 30
A Monitoring Committee, comprising of people independent of the UK and

Rwandan governments, has also been formed as required by the MoU. It
reports to the Joint Committee. 31 The Monitoring Committee’s terms of
reference (set by the Joint Committee co-chairs) say it will “provide an
independent quality control assessment” of compliance with the MoU across
“the entire relocation process from the beginning”. 32
This will happen largely through “field visits”. 33 It is envisaged that it will be
able to make unannounced visits to accommodation, asylum processing
centres and any other locations used to process cases. The MoU also provides
that the Monitoring Committee is to have “unfettered access” to relevant
locations, people, and documents. 34
The committee will meet at least twice a year but four times in the first year. It
will submit quarterly reports to the Joint Committee and an annual summary
report “for publication”. There are currently eight members, four appointed
by Rwanda and four appointed by the UK.
28
29
Home Office, Note Verbale on assurances in paragraphs 8 and 10 of the MoU between the United
Kingdom and Rwanda for the provision of an asylum partnership arrangement, 28 November 2022,
Parts 3 and 4
30
Home Office, First meeting of the Migration and Economic Development Partnership Joint
Committee, 31 May 2022, 2 September 2022
31
Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022, Q65
32
Home Office, Monitoring Committee: terms of reference, 2 September 2022
33
As above
34

Resettlement of refugees in Rwanda to the UK

As part of the deal, the UK has also committed to resettle in the UK an
unspecified “portion” of Rwanda’s most vulnerable refugees. 35 The Home
Office says this is expected to amount to “tens” of cases, involving people who
have complex needs. 36
1.3 How are people chosen for relocation?
People whom the Home Office wishes to transfer to Rwanda are identified and
referred to the Rwandan authorities on a case-by-case basis, after an initial
screening process following arrival in the UK. The Home Office says
relocations will “initially focus on deterring those who have already reached
safe third countries from making dangerous journeys to the UK in order to
claim protection, especially (but not exclusively) where travel is by small boat
in the English Channel”. 37
Broad parameters on who is eligible to be relocated to Rwanda are set out in

Home Office guidance on its ‘inadmissibility’ policy:
An asylum claimant may be eligible for removal to Rwanda if their claim is

inadmissible under this policy and (a) that claimant’s journey to the UK can be
described as having been dangerous and (b) was made on or after 1 January
2022. A dangerous journey is one able or likely to cause harm or injury. For
example, this would include those that travel via small boat, or clandestinely
in lorries. […]
Those progressed for consideration for relocation to Rwanda under the MEDP
will be taken from both the detained and non-detained cohort and be
identified in line with processing capacity. Priority will be given to those who
arrived in the UK after 9 May 2022. 38
What are inadmissible asylum claims?

The Nationality and Borders Act 2022 provides for people who were previously
present in or have another type of connection with a “safe third State” to be
treated as inadmissible to the UK’s asylum system. 39 The Home Office can
remove them to any safe third state that agrees to receive them, without first
having to consider the asylum claim.
Connection to a safe third state means any of the following:
35
As above, para 16
36
37
Home Office, Inadmissibility: safe third country cases, version 7.0, 28 June 2022, p7
38
As above, p17
39
Nationality, Immigration and Asylum Act 2002, s80B (inserted by Nationality and Borders Act 2022,
s16)

• Having been recognised as a refugee or otherwise granted international

protection in another country.
• Having an outstanding or refused claim for asylum in another country.
• Having previously been present in another country and failed to take
advantage of an opportunity to claim asylum there when it would have
been reasonable to expect the person to do so.
• In particular circumstances, it would have been reasonable to expect
them to claim asylum in another country rather than the UK. 40
Home Office decision-makers have some scope to make exceptions. An
asylum claim that has been declared inadmissible can be fully considered in
the UK “if there are exceptional circumstances in the particular case that
mean the claim should be considered”, or if otherwise provided for in the
Immigration Rules. 41
The Immigration Rules provide for inadmissible claims to be admitted for
consideration in the UK if the person’s removal to a safe third country within a
reasonable period is considered unlikely. 42 The inadmissibility policy guidance
says that a reasonable period will be six months “in most cases” but there are
“no rigid timescales”. 43
The rules just described have been in force since 28 June 2022. Before that,
inadmissibility was dealt with entirely by the Immigration Rules and the
guidance (ie not in primary legislation), and the rules were different in some
areas. For example, there was a hard six-month deadline for securing
removal to a safe third country. 44
A ‘notice of intent’ is issued to people whose claims are being considered

under the inadmissibility rules. If the person is being considered for relocation
to Rwanda this will also be specified in the letter. The notice of intent gives
people seven days to respond if they are in a detention centre, or 14 days if
they are not detained. 45
Caseworkers must consider the relevant country policy and information

documents, along with any response to the notice of intent, to determine
whether relocation to Rwanda is suitable in an individual case. 46 The Home
Office explains:
40
Nationality, Immigration and Asylum Act 2002, s80C (inserted by Nationality and Borders Act 2022,
s16)
41
Nationality, Immigration and Asylum Act 2002, s80B(7)
42
Home Office, Immigration Rules part 11: asylum (accessed 14 November 2022), para 345D
43
Home Office, Inadmissibility: safe third country cases, version 7.0, 28 June 2022, pp27/28
44
Home Office, Inadmissibility: safe third country cases, version 6.0, 9 May 2022
45
46
As above, p18

Even where we determine it is generally safe to transfer people from the UK to

our international partners, every individual in scope for asylum processing
overseas would be able to rely on the UK’s obligations under Article 3 of the
European Convention on Human Rights so as not to be transferred to a place
where they would genuinely be at risk of inhumane and degrading treatment.
This means individual vulnerabilities will be taken into consideration and
assessed against our knowledge of the conditions in Rwanda. 47
If the outcome is that the person will be sent to Rwanda, they will receive a
decision letter saying that their asylum claim is inadmissible and certifying
that Rwanda is a safe third country to which they are being removed. Legally
speaking, these are separate decisions, but in practice caseworkers are
advised to serve the inadmissibility decision and the Rwanda relocation
decision in the same letter. 48
Decisions can be challenged through the judicial review process. Bringing a

legal challenge would be likely to suspend the person’s removal from the UK
until the judicial review proceedings had been completed.
Who will not be sent to Rwanda?

Unaccompanied asylum-seeking children (under 18) are “not suitable for
the inadmissibility process” and so will not be considered for relocation to
Rwanda. 49
Families with children (under 18) “are not to be considered for removal to
Rwanda”, although they may be declared inadmissible and removed
elsewhere. This rule is also “under review”. 50
EU citizens who claim asylum are excluded from the inadmissibility process
(they are covered by different rules). 51
Rwandan asylum seekers in the UK are also excluded (in line with the UK’s
international legal obligations on non-refoulement). 52
1.4 Parliamentary scrutiny
The UK-Rwanda MoU has not been put before Parliament for formal scrutiny
or a vote.
It does not fall under the Parliamentary scrutiny requirements of the

Constitutional Reform and Governance Act 2010 because it does not create
47
Home Office, Migration and Economic Development Partnership with Rwanda: Equality Impact
Assessment, 4 July 2022, p4
48
49
As above, p8
50
As above, p17
51
As above, p16
52
Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022, Q24 and Q26

any legally binding obligations. See the Annex to this briefing for further
discussion.
The Public Law Project, a charity which conducts policy work alongside legal
casework and strategic litigation, has criticised the absence of parliamentary
scrutiny. It also observes that the decision to use a MoU rather than a treaty
was relevant to the European Court of Human Rights’ decision to grant an
injunction which led to the cancellation of the first removal flight on 14 June
(see section 4.3 below). 53
Home Affairs Committee

The Home Affairs Committee held a one-off evidence session about the MEDP
with then immigration minister Tom Pursglove and a senior Home Office
official on 11 May 2022.
The minister agreed to send further information about several issues raised
during the session in follow-up correspondence. See his letter to the
Committee of 15 June 2022.
The committee’s report on Channel crossings, migration and asylum,

published on 18 July 2022, made several recommendations relating to the
Rwanda scheme. 54
Joint Committee on Human Rights

The committee held a non-inquiry evidence session examining the human
rights implications of the asylum partnership agreement on 8 June 2022.
It has also begun an inquiry on the human rights of asylum seekers in the UK.
The terms of reference include the question “Is the policy of relocating asylum
seekers to third countries consistent with the UK’s human rights
obligations?” 55
Lords International Agreements Committee

The Lords International Agreements Committee has published a report on the
form of the agreement with Rwanda. It criticised the decision to use an
“unenforceable” MoU rather than a formal treaty. The report said “it is
unacceptable that the Government should be able to use prerogative powers
to agree important arrangements with other states that have serious human
rights implications without any scrutiny by Parliament”. 56
53
Public Law Project, ‘Why treaties matter: statement on flight cancellation’, 15 June 2022
54
Home Affairs Committee, Channel crossings, migration and asylum, 18 July 2022, HC 199, 2022-23,
p45
55
Joint Committee on Human Rights, Human Rights of Asylum Seekers in the UK inquiry launched, 7
November 2022
56
International Agreements Committee, Memorandum of Understanding between the UK and Rwanda
for the provision of an asylum partnership arrangement, 18 October 2022, HL 71, 2022-23, p11

1.5 Outstanding questions
How many people will be relocated to Rwanda?

Then Prime Minister Boris Johnson said in a speech in mid-April “Rwanda will
have the capacity to resettle tens of thousands of people in the years
ahead”. 57
Since then, the Deputy Prime Minister has said it is more likely that the
number of people relocated to Rwanda each year will be in the hundreds. 58
This corresponds with reported indications from the Rwandan Government
that it can process 1,000 people over the initial five-year period. 59
The Home Office has said that Rwanda has initial capacity for 200 people but
plans to increase that once flights begin. 60
Rwanda’s recent caseloads of asylum claims eligible for individual

assessment have been small. There were 465 asylum seekers in Rwanda at
the end of 2020 and 228 individual asylum decisions made, according to
UNHCR statistics cited by the Home Office. 61
Some observers have suggested that limited capacity in Rwanda to receive

cases could undermine the policy’s intended deterrent effect. 62 In response,
ministers have emphasised that the relocation arrangement is “uncapped”.
They have also highlighted that the UK will support capacity building in
Rwanda during the partnership.
Will any cohorts of people be excluded?

The published parameters for which asylum applicants are eligible for
relocation to Rwanda are broad. The only confirmed exclusions are asylum
seekers from the EU, unaccompanied minors, Rwandan nationals and ("at
least initially") families with children. 63 There is no indication of whether
Rwanda has specified any criteria for referrals (eg certain nationalities, age
ranges or household compositions).
The Government has been reluctant to identify publicly any specific cohorts or
characteristics which would usually suggest suitability or otherwise for
57
Prime Minister’s Office, 10 Downing Street, PM speech on action to tackle illegal migration, 14 April
2022
58
“Dominic Raab: Hundreds, not thousands, will be sent to Rwanda”, The Times [online], 20 May 2022
59
As above; “What is the UK's plan to send asylum seekers to Rwanda and how many could go?”, BBC
News [online], 9 October 2022
60
PQ 97762 [on: Asylum: Rwanda], 28 November 2022
61
Home Office, Review of asylum processing Rwanda: country information on the asylum system,
version 10, 9 May 2022, para 4.14.1
62
HC Deb 19 April 2022 c34; Home Affairs Committee, Asylum and migration oral evidence HC 197, 11
May 2022 Q39-44
63
Home Office, MEDP with Rwanda: equality impact assessment, 11 May 2022, pp5-6

relocation to Rwanda. It is concerned that doing so could influence decisions

made by irregular migrants and people smugglers and undermine the policy’s
intended effect. 64
Campaigners and commentators have identified various types of case that
they consider particularly unsuitable for relocation to Rwanda. These include
LGBTQ+ asylum seekers, victims of torture or trafficking and people with
family members in the UK.
The Home Office emphasises that decisions on suitability, and whether

Rwanda is “safe”, will be taken on a case-by-case basis. It explains:
The Home Office does not transfer an asylum seeker to a third country prior to
refugee status determination unless it has determined the receiving state is
“safe”. There are two facets to this: first, the positive obligation on the sending
State to carry out an up-to-date assessment of the relative conditions of the
receiving State to ensure it is safe (a general objective test); and second, the
individual must be given the opportunity to demonstrate the receiving State
will not be safe for them personally (subjective test).
The Home Office would therefore undertake a case-by-case risk assessment

when determining eligibility for relocation. 65
The country policy and information notes on Rwanda’s asylum system inform
Home Office caseworkers’ assessments of whether Rwanda is a safe third
country for any given person, with particular reference to Article 3 ECHR
(freedom from torture and inhuman or degrading treatment). The equality
impact assessment for the asylum partnership considers its potential impact
on people with protected characteristics in particular, drawing on evidence
referred to in the country policy and information notes.
The equality impact assessment states that the policy has a potential
negative effect on some transgender people. It says that this will partly be
addressed by making case-by-case decisions: “No one will be relocated if it is
unsafe or inappropriate”. 66
Are the safeguards in the arrangement adequate?

Ministers emphasise the screening process as an important mechanism for
ensuring unsuitable cases are not considered for relocation.
Some observers have cast doubt on whether the screening will be sufficient to
ensure that potentially unsuitable cases are identified, highlighting
applicants’ potential difficulties in accessing legal advice, challenging age
assessments, gathering supporting evidence and making representations to
the Home Office within the timescales envisaged. 67 Similar issues have arisen
64
HC Deb 19 April 2022 c29
65
Home Office, MEDP with Rwanda: Equality Impact Assessment, 11 May, p4
66
Home Office, MEDP with Rwanda: Equality Impact Assessment, 11 May, p14
67
Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022 Q35-37

in other asylum contexts, for example relating to mechanisms to identify

cases unsuitable for immigration detention.
Questions have also been asked about how the state parties and people
affected by the agreement will be able to enforce compliance with the
commitments in the MoU and pursue redress if necessary. 68 The MoU is not
legally binding and does not give individuals rights or remedies enforceable in
court.
The Government has said that ministers would make “appropriate decisions”
about how to respond if assurances given in the agreement are not met. 69
Rwanda’s suitability as a country for relocation

Rwanda’s suitability as a partner country is contentious. Some critics have
questioned, for example, whether it is appropriate for the UK to give a
considerably poorer country responsibility for some of its asylum claims, and
whether the country’s asylum system and general conditions will provide
relocated people adequate procedural guarantees and long-term integration
prospects.
Campaigners also have concerns about Rwanda’s human rights record. 70
The Government’s assessment, as reflected in the overarching country

information document on Rwanda, is that Rwanda is generally a safe country
for refugees. Ministers have strongly criticised commentators for casting
doubt on Rwanda’s suitability as a host country. They have argued that “there
is something really quite unpleasant about the undercurrent of the tone
towards Rwanda.” 71
Campaigners have highlighted some of the findings in the Home Office

assessments in support of their arguments that Rwanda is not safe for some
groups, notably LGBTQI+ people. For example, the overarching assessment
refers to “some evidence of discrimination and intolerance towards persons
based on their sexual orientation and gender identity or expression”. 72 There
is further detail in the separate country report on human rights. 73 However,
the Home Office’s conclusion is that “in general the treatment is not
68
Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022 Q80-93;
International Agreements Committee, Memorandum of Understanding between the UK and Rwanda
for the provision of an asylum partnership arrangement, 18 October 2022, HL 71, 2022-23
69
70
Amnesty International UK, press release, ‘UK: Banishing people seeking asylum to Rwanda is
‘appalling’, 14 April 2022; BBC News, ‘UK asylum deal: Is Rwanda a land of safety or fear?’, 14 April
2022; The Guardian, ‘Rwanda plan challenged over alleged failure to identify risks for LGBTQ+
refugees’, 24 May 2022
71
HC Deb 19 April 2022 c30
72
Home Office, Country policy and information note: Rwanda, assessment, May 2022, para 2.11.1
73
Home Office, Country policy and information note: Rwanda, general human rights, May 2022

sufficiently serious... to establish a systemic risk or to amount to persecution

or serious harm”. 74
Human Rights Watch has criticised the assessments for “cherry-picking facts,
or ignoring them completely, to bolster a foregone conclusion”. 75
The Independent Chief Inspector of Borders and Immigration has

commissioned a review of the country policy and information notes on
Rwanda. The purpose is to assure the Chief Inspector that their content is
accurate, balanced, objective and up to date. The review was completed in
July 2022 but had not been published at time of writing. 76
Will the deal deter irregular journeys to the UK?

There is considerable uncertainty about the likely impact of the asylum
partnership arrangement on the number of irregular arrivals and asylum
claims in the UK. The Home Office does not appear to have conducted
modelling of the policy’s impacts prior to its implementation. 77
The absence of evidence that the policy will have enough of a deterrent effect
to make it value for money prompted the Home Office’s Permanent Secretary
to request a ministerial direction to proceed. He explained: “This does not
mean that the MEDP cannot have the appropriate deterrent effect; just that
there is not sufficient evidence for me to conclude that it will.”
Ministers have confirmed that deterrence is a policy objective and argue that
a significant reduction in the number of people making dangerous journeys to
the UK would be an indicator of its success. 78 But they have also emphasised
that the policy must be considered in conjunction with broader reforms to the
asylum system.
The Home Affairs Committee has concluded that there is “no clear evidence”
that the policy will deter small boat crossings. It noted, as have some critics,
that people have continued to cross since the Rwanda policy was announced
– but added that this could be because organisers are encouraging them to
make the trip before the policy is implemented. 79
In response, the Government said “the desired deterrent effect that the MEDP
seeks to achieve cannot be quantified with sufficient certainty at this early
stage in isolation from wider efforts to tackle small boat crossings”. It also
stated that it did not expect to achieve much deterrence until removals take
74
Home Office, Country policy and information note: Rwanda, assessment, May 2022, para 2.11.1
75
Human Rights Watch, UK’s Rights Assessment of Rwanda Not Based on Facts, 12 May 2022
76
AAA & Ors v Secretary of State for the Home Department [2022] EWHC 1922 (Admin), 20 July 2022,
para 59
77
See Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022, Qq6-14
78
HC Deb 25 April 2022 c454; Home Affairs Committee, Asylum and migration oral evidence HC 197,
11 May 2022, Q19
79
Home Affairs Committee, Channel crossings, migration and asylum, 18 July 2022, HC 199 2022-23,
p4

place. Details of a monitoring and evaluation plan will be announced “in due
course”. 80
Migration Watch has suggested that the policy could act as a powerful
deterrent if people entering the UK by irregular means “are swiftly and
routinely sent to Rwanda”. 81
How much will the deal cost the UK?

The MoU does not detail the financial arrangements underpinning the deal.
Ministers have said that the detailed costings must remain confidential out of
respect to the partnership with Rwanda but have suggested that future Home
Office accounts will provide some information. 82
Some broad costings have been confirmed:
• The UK is providing an initial £120 million payment towards the economic

development and growth of Rwanda. 83 This will be part of a new
Economic Transformation and Integration Fund “creating professional
and personal development opportunities for migrants and Rwandans
alike”. 84
• The UK will provide additional funding for each person relocated to

Rwanda, to cover their accommodation and case processing costs (such
as caseworkers, legal advice, translators, accommodation, food and
healthcare).
• The UK has also agreed to fund a five-year integration package

(including accommodation, training and healthcare) for each person
granted asylum in Rwanda under the scheme.
As of late October 2022, the Government had made the £120 million Economic
Transformation and Integration Fund payment and a further £20 million
upfront payment towards accommodation, processing and integration. 85
Ministers have said that they anticipate that the funding for individual cases
will be comparable with asylum processing costs in the UK (around £12,000
80
Home Affairs Committee, Channel crossings, migration and asylum: Government Response to the
Committee’s First Report, 28 October 2022, pp10-11
81
Migration Watch, Potential impact of asylum arrangements with Rwanda, 5 May 2022
82
Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022 Q17; Channel
crossings, migration and asylum: Government Response to the Committee’s First Report, 28 October
2022, p10.
83
Home Office press release, World first partnership to tackle global migration crisis, 14 April 2022; PQ
34885 [on: Asylum: Rwanda], 12 July 2022
84
PQ 74711 [on: Asylum: Rwanda], 31 October 2022
85
PQ 67920 [on: Asylum: Rwanda], 20 October 2022

per person). 86 Funding for individual cases will only be provided whilst a
person remains in Rwanda.
Other costs include the initial screening process in the UK, legal aid and any
related legal challenges, and travel for relocated individuals (and any Home
Office/contracted escorts) to Rwanda.
The Home Secretary’s written ministerial direction for proceeding with the
policy cited the existence of “safeguards... to protect taxpayer funding”
within the agreement. She also expressed the view that “there are credible
invest-to-save arguments in the long term”.
Is it legal?
The High Court held on 19 December that the Rwanda policy is consistent with
UK domestic law and with the UN Refugee Convention (see section 4.2 below).
Some of the claimants are likely to seek permission to appeal, so there may
be further consideration by the Court of Appeal and/or Supreme Court.
International law issues are covered in section 3 below.
86
Home Affairs Committee, Asylum and migration oral evidence HC 197, 11 May 2022 Q14; PQ 34885
[on: Asylum: Rwanda], 12 July 2022

2 Are there comparable precedents?
There are many international examples of ‘safe third country’ and

externalisation policies. The Government has cited policies implemented by
Australia over the past decade or so, including its experience of offshore
asylum processing, in support of its own plans to reform the asylum system.
However, it seeks to distinguish the UK-Rwanda deal from other countries’
approaches. It maintains that the asylum partnership arrangement with
Rwanda is not comparable to other examples, including a previous
arrangement between Israel and Rwanda. 87
The Government has sought to counter some criticisms of the UK-Rwanda

deal by suggesting that the EU and UNHCR have supported schemes to
remove asylum seekers to Rwanda, and by highlighting a previous Labour
administration’s interest in processing asylum claims outside the UK.
2.1 UNHCR’s Emergency Transit Mechanism

project in Rwanda
The European Union provides financial support to UNHCR’s ‘Emergency

Transit Mechanism’ (ETM) project in Rwanda. Funding comes from the EU
Emergency Trust Fund for Africa. Some individual EU member states (and
some other countries) also provide financial support for the ETM scheme via
UNHCR.
The Rwanda ETM was established by UNHCR in September 2019 as a

temporary emergency humanitarian response to an urgent situation in Libya.
Libya has been a major transit hub for migrants heading towards Europe over
the past decade. There are longstanding concerns about its treatment of
migrants and refugees, and it has not signed the 1951 Refugee Convention or
recognised UNHCR’s mandate for refugees.
The ETM’s purpose is “to provide a safe space and long-term solutions to
some of the most vulnerable asylum seekers and refugees in Libya.” 88 Since its
87
For background on the Israeli example, see “How Israel’s Secret Refugee Deals Collapsed in the
Light of Day”, The New Humanitarian [online], 3 May 2018; Border Criminologies Blog, Moving under
Threats: The Treacherous Journeys of Refugees who ‘Voluntary’ Departed from Israel to Rwanda and
Uganda and Reached Europe, 12 October 2018
88
UNHCR, First evacuation flight of 2022 from Libya to Rwanda brings over 100 asylum seekers to
safety, 30 March 2022

establishment, over 900 asylum seekers have been sent to Rwanda, of which
67% have been resettled in third countries.
UNHCR arranges the transfer of some asylum seekers (of various
nationalities) from Libya to Rwanda. Upon arrival in Rwanda, the people are
provided accommodation, food, water, medical care, psychosocial support,
and life skills training by UNHCR. 89
UNHCR considers their eligibility for asylum or another form of permission to
stay, and/or for other durable solutions appropriate to their individual
circumstances. This might involve resettlement in a third country, return to a
previous country of asylum or return to country of origin. 90
Comparing the ETM with the UK-Rwanda deal

There are conceptual and practical differences between the UK-Rwanda
asylum partnership and the ETM. For example:
• The Memorandum of Understanding for the ETM is between UNHCR, the
Government of Rwanda, and the African Union, whereas the UK’s model
is a bilateral agreement with the Rwandan government and does not
provide for involvement from UNHCR or other international bodies.
• People transferred to Rwanda under the ETM are considered for asylum
by UNHCR, whereas people relocated under the UK’s partnership
arrangement would go through the Rwandan asylum process.
• Asylum seekers in the UK do not have any choice over whether they are
relocated to Rwanda, whereas the ETM has been described as a
voluntary process.
• The ETM arose out of UNHCR’s recognition that it had extremely limited
scope to provide protection or durable solutions to refugees and asylum
seekers whilst they were in Libya. The UK is a signatory to the 1951
Refugee Convention and has a well-established asylum determination
system and reception facilities.
• The ETM’s purpose is to evacuate asylum seekers from an emergency

situation in Libya so that durable solutions to their situations could be
found. In contrast, the UK Government’s underlying objectives for the
asylum partnership with Rwanda are to deter irregular migration to the
UK and manage asylum intake in the UK. Consequently, the range of
potential outcomes for people transferred to Rwanda under the ETM is
broader than under the MEDP.
89
UNHCR, UNHCR organizes humanitarian evacuation of 176 vulnerable asylum seekers out of Libya,
10 December 2021
90
For more detailed background information see, for example, Altai Consulting for EUTF, Case study
Emergency Transit Mechanism (PDF), June 2021

2.2 The Blair Government’s proposals
During the early 2000s, the Blair Government considered some ideas to
enable the transfer of asylum seekers from the UK to third countries whilst
their claims were being processed. None were implemented.
Ideas proposed to the EU in 2003 concerned strengthening protection

capacity in asylum seekers’ regions of origin, and a proposal that EU member
states establish ‘transit processing centres’ in third countries where asylum
claims to the EU would be considered. 91 People granted asylum would have
been settled in EU countries.
Separately, in 2004 the Labour Government confirmed that it had been in

discussions with Tanzania about cooperation on Somali/disputed Somali
nationality asylum cases. According to reports, ideas included the possibility
of Tanzania receiving some asylum seekers and refused asylum seekers. 92
Full Fact, the independent fact-checking organisation, has published a brief

comparison of the proposals made under the Blair government with the MEDP
proposals. It concluded that the previous proposals were “quite different” to
the UK-Rwanda deal. 93
By the time of the 2005 General Election campaign, the Labour Government
had abandoned plans for offshore asylum processing. The Conservative Party,
advocated sending asylum seekers in the UK to ‘regional processing centres’
closer to their countries of origin. 94
Some of the legislation which underpins the UK-Rwanda plan builds on

legislation introduced by Labour. For example, section 29 and Schedule 4 of
the Nationality and Borders Act 2022 amend the safe country provisions in
Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act
2004.
91
Letter from the Prime Minister, New international approaches to asylum processing and protection,
10 March 2003
92
“UK plans asylum camp in Tanzania”, BBC News [online], 26 February 2004
93
Full Fact, Did David Blunkett propose sending asylum seekers abroad in 2004?, 22 April 2022
94
“Blair accuses Tories over asylum”, BBC News [online], 22 April 2005

3 International legal issues
3.1 UNHCR opposition to UK’s plans
The UN High Commissioner for Refugees (UNHCR) has produced several

reports containing detailed legal observations on the Nationality and Borders
Act 2022 as it progressed through Parliament, with a dedicated web page
outlining the main international legal issues the UNHCR suggests the
legislation raises. 95
On the passing of the Act, High Commissioner Filippo Grandi said the
Government’s approach “undermines established international refugee
protection law and practices”. UNHCR regretted that it was approved:
The UK is a nation that rightly prides itself on its long history of welcoming and
protecting refugees. It is disappointing that it would choose a course of action
aimed at deterring the seeking of asylum by relegating most refugees to a
new, lesser status with few rights and a constant threat of removal.
Furthermore, wide-ranging inadmissibility rules have the potential to deny

refugees their right to seek asylum in the UK. Such provisions are potentially at
variance with the Refugee Convention.
I am also concerned by the UK’s intention to externalize its obligations to

protect refugees and asylum seekers to other countries. Such efforts to shift
responsibility run counter to the letter and spirit of the Refugee Convention, to
which the UK is a party. These efforts also run counter to the Global Compact
on Refugees, which was affirmed by the UN General Assembly in 2018 and calls
for more equitably sharing the responsibility for refugee protection. 96
UNHCR has also opposed the UK-Rwanda plan specifically, stating:
UNHCR remains firmly opposed to arrangements that seek to transfer refugees

and asylum seekers to third countries in the absence of sufficient safeguards
and standards. Such arrangements simply shift asylum responsibilities, evade
international obligations, and are contrary to the letter and spirit of the
Refugee Convention. 97
The rest of this section covers the main international legal questions relating
to the UK-Rwanda arrangement.
95
UNHCR UK, The Nationality and Borders Bill, accessed 31 May 2022
96
UNHCR, News comment: UNHCR’s Grandi fears UK legislation will dramatically weaken refugee
protection, 27 April 2022
97
UNHCR, UN Refugee Agency opposes UK plan to export asylum, 14 April 2022

3.2 The Refugee Convention
The 1951 International Refugee Convention acknowledges that some refugees

and asylum-seekers may enter a country illegally. 98 Article 31 of the
convention outlines a state’s obligations when it comes to the treatment of
those seeking refuge by entering a state in a way that would usually be
unlawful. The provision states:
1. The Contracting States shall not impose penalties, on account of their illegal
entry or presence, on refugees who, coming directly from a territory where
their life or freedom was threatened in the sense of article 1, enter or are
present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees
restrictions other than those which are necessary and such restrictions shall
only be applied until their status in the country is regularized or they obtain
admission into another country. The Contracting States shall allow such
refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
There are several legal questions that arise out of the UK-Rwanda
arrangements in light of this provision:
• What amounts to a “penalty” under Article 31(1).
• Whether refugees must come “directly” from the state they are fleeing,
or may transit through other states and still be protected by this
provision.
• Whether asylum seekers should claim asylum in the “first safe country”
they reach.
Prohibition of penalties
In the UK, the prohibition of penalties against refugees who enter a state
unlawfully is given effect by section 31 of the Immigration and Asylum Act
1999. This provides a legal defence against some immigration offences, such
as document fraud.
As noted in section 1.3 above, an asylum claim can be declared inadmissible

based on a number of conditions set out in the 2022 Act. This includes where
an asylum seeker has previously been present in another country and failed to
98
Convention Relating to the Status of Refugees, (adopted 28 July 1951, entered into force 22 April
1954) 189 UNTS 137

claim asylum there when it would have been reasonable to expect them to do
so. 99
Some expert and academic commentators suggest that treating any potential
refugee claim as inadmissible based on the fact they may have entered the
UK irregularly runs contrary to Article 31 and could amount to an unlawful
penalty. 100
The UNHCR further notes that, where penalties are permissible (ie the asylum
seekers fall outside the scope of Article 31), they should not interfere with the
fundamental right to seek asylum, or other guarantees provided by the
Convention. 101 The UNHCR said:
Where asylum-seekers are not protected against the imposition of penalties

under Article 31(1) (not having arrived directly, presented themselves without
delay or shown good cause for their irregular entry or presence) any penalising
measure must not undermine the right to seek and enjoy asylum or be at
variance with other provisions of the 1951 Convention and international and
regional human rights law. Thus, such penalties must not involve or
indirectly result in denying asylum seekers access to an asylum procedure.
Nor ... can it involve the denial of the full set of rights guaranteed by the 1951
Convention. UNHCR further considers that the denial of entry or the summary
removal from its territory of asylum-seekers based on their irregular entry or
presence, without necessary safeguards regarding the application of safe third
country concepts, would also be in breach of the UK’s obligations under the
1951 Convention and applicable international and regional human rights law. 102
The Home Office’s view is that relocation to Rwanda does not amount to a
“penalty”. It emphasises Rwanda’s commitment to non-refoulement and its
treatment of refugees. 103
Interpretation of Article 31
The UK Government interprets the Refugee Convention as excluding some
asylum seekers from the scope of Article 31, and therefore the protection
against penalties. In particular, the UK’s interpretation of asylum seekers
“coming directly from a territory where their life or freedom was threatened”
has been included in section 37 of the Nationality and Borders Act 2022 (in
force from 28 June). Section 37(1) provides that:
A refugee is not to be taken to have come to the United Kingdom directly from
a country where their life or freedom was threatened if, in coming from that
99
Nationality, Immigration and Asylum Act 2002, s80C (inserted by Nationality and Borders Act 2022,
s16)
100
See, for example, Maja Grundler and Elspeth Guild, The UK-Rwanda deal and its Incompatibility
with International Law, EU Immigration and Asylum Law and Policy blog, 29 April 2022
101
The right to seek asylum was recognised in the Universal Declaration of Human Rights, Article 14 (1):
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
102
UNHCR, UNHCR Observations on the New Plan for Immigration policy statement of the Government
of the United Kingdom, May 2021, Annex para 14
103
Home Office, Migration and Economic Development Partnership with Rwanda: equality impact
assessment, 4 July 2022, p5

country, they stopped in another country outside the United Kingdom, unless
they can show that they could not reasonably be expected to have sought
protection under the Refugee Convention in that country.
The Act does not define what it means for an asylum seeker to have “stopped”
in another country where asylum could have been claimed.
UNHCR rejects the UK Government’s description of the Nationality and

Borders Act as “aligned with”, “based on” and “consistent with” Article
31(1). 104 It argues that the UK’s position is based on a “fundamental
misapplication” of Article 31, reiterating its position that asylum does not
have to be claimed in the first safe country a refugee may reach.
UNHCR provides a different and more specific interpretation of the 1951

Convention, supporting the existing interpretations from UK case law:
Article 31(1) of the Refugee Convention prohibits penalising refugees for their
unlawful entry or presence if they come directly from a country where their life
or freedom was threatened, present themselves to the authorities without
delay, and show good cause for their unlawful entry or presence. This article
was intended to address the situation of refugees who were often unable to
secure the necessary authorisation to enter a country. The exemption in their
favour could not, however, be claimed by those who were lawfully settled,
temporarily or permanently, in another country and had already found
protection there and who decided to move onward irregularly for reasons
unconnected to their need for international protection. To them, administrative
penalties for unlawful entry or presence could be applied. It has since been
understood also to apply to those who failed to seek asylum in a timely fashion
or at all, in a country where they could reasonably have done so. The UK High
Court in Adimi introduced three benchmarks to interpret “coming directly”: 1)
the length of stay in the intermediate country; 2) the reason for the delay; and
3) whether or not the refugee sought or found protection de jure or de facto. 105
UNHCR’s position reflects research on the interpretation of Article 31 in

2001. 106 This indicated that the interpretation of Article 31, and significant
state practice in implementing Article 31 at the time, suggested the meaning
of a refugee “coming directly” to a state did not mean that refugees cannot
transition through or even stop in a safe country in order to be protected by
Article 31:
Refugees are not required to have come directly from their country of origin.
Article 31 was intended to apply, and has been interpreted to apply, to persons
who have briefly transited other countries, who are unable to find protection
from persecution in the first country or countries to which they flee, or who
have ‘good cause’ for not applying in such country or countries. The drafters
104
UNHCR, UNHCR Updated Observations on the Nationality and Borders Bill, as amended, January
2022, para 26
105
As above, para 27, footnotes omitted; case cited: R (Adimi) v Uxbridge Magistrates Court [1999]
EWHC Admin 765, 29 July 1999
106
Guy S. Goodwin-Gill, Article 31 of the 1951 Convention relating to the Status of Refugees: Non-
penalization, Detention and Protection: A paper prepared at the request of the Department of
International Protection for the UNHCR Global Consultations (PDF), October 2001

only intended that immunity from penalty should not apply to refugees who
had settled, temporarily or permanently, in another country. 107
UNHCR has also previously outlined that Article 31 does not require an asylum
seeker to seek protection in the first safe country they enter:
The requirement that, in order to benefit from exemption from penalties, an

asylum-seeker should be coming “directly” from a territory where their life or
freedom was threatened allows States parties to treat refugees differently only
if they have already settled in a country and subsequently move onwards for
reasons unrelated to their need for international protection. It is not meant to
suggest that an asylum-seeker must claim asylum in the first country that
could be reached without passing through another. Given that the 1951
Convention was drafted at a time when air travel was inaccessible to most,
and overland travel was by far the most common mode of transport, such a
principle would have relieved the very States that drafted and signed the
Convention of any significant obligations under it. A literal, temporal or
geographical interpretation of “directly” would also undermine the application
of Article 31(1). Rather, reflecting leading UK jurisprudence, the term “directly”
is to be interpreted broadly as meaning that refugees who have crossed
through, stopped over or stayed in other countries en route, may still be
exempt from penalties. 108
Therefore, while the UK considers refugees who have “stopped” in another

country as not coming “directly” to the UK, UNHCR considers such refugees as
still subject to the protections of Article 31.
A previous version of the Home Office’s guidance on inadmissibility decisions

went further in outlining when the UK Government would refuse to consider an
asylum claim based on a claimant’s “presence” in a country before reaching
the UK. It included as a possible scenario for inadmissibility where “it is
believed that a claimant passed through Belgium before arriving in the UK
and claiming asylum”. The standard for inadmissibility was that potential
asylum seekers have “passed through” a third state (rather than stopped, or
had been temporarily or permanently resident). The guidance also referred to
evidence that an asylum seeker “has travelled through” a third state as
grounds for an inadmissibility decision. 109
This possible interpretation was also addressed by UNHCR during the passing
of the Nationality and Borders Bill, suggesting that such an interpretation
would make the UK an international outlier:
In UNHCR’s view, transit alone ought not be regarded as a “sufficient”

connection or meaningful link to a third country to justify a finding of
inadmissibility, particularly outside the context of formal agreement for the
allocation of responsibility for determining refugee status between countries
with comparable asylum systems and standards. Transit is often the result of
107
As above, para 103
108
of the United Kingdom, May 2021, Annex para 12 (emphasis in original)
109
Home Office, Inadmissibility: safe third country cases, version 6.0, 9 May 2022. This language does
not appear in version 7.0

fortuitous circumstances and does not necessarily imply the existence of any
meaningful link or connection. 110
More generally, UNHCR comments that such a right to seek protection does
not equate to an unfettered right to choose where to apply for asylum:
Whilst international law does not provide an unrestricted right to choose

where to apply for asylum, there is no requirement under international law for
asylum-seekers to seek protection in the first safe country they reach. This
expectation would undermine the global humanitarian and cooperative
principles on which refugee protection is founded, as emphasized by the
1951 Convention and recently reaffirmed by the General Assembly,
including the UK, in the Global Compact on Refugees. It would impose an
arbitrary and disproportionate burden on countries in the immediate region(s)
of flight and threaten the capacity and willingness of those countries to
properly process claims or provide acceptable reception conditions and
durable solutions. This would (and does) threaten to make these first
countries, in turn, unsafe and encourage onward movement. 111
3.3 Externalisation policies and ‘safe third

countries’
Guiding principles and legality of transfer

arrangements
The use of agreements between states to share responsibility for the
protection of refugees and asylum seekers is possible in international law, but
only in specific circumstances. UNHCR has warned that such arrangements
may only be in line with the Refugee Convention where they do not amount to
the ‘externalisation’ of states’ international obligations and responsibilities
towards refugees, as set out below.
In May 2013, UNHCR issued guidance on the use of transfer arrangements for
asylum seekers between states. This recognised that “asylum-seekers and
refugees should normally be processed in the territory of the State where they
arrive, or which otherwise has jurisdiction over them” and that the primary
responsibility to provide protection rests with the state where asylum is
sought. 112
The guidance also recognised an increase in arrangements between states

for sharing the hosting of asylum seekers and the processing of their asylum
110
2022, Annex, para 155
111
of the United Kingdom, May 2021, Annex para 19 (emphasis in original)
112
UNHCR, Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers,
May 2013, para 1

claims. It said the legality or appropriateness of such arrangements “need to

be assessed on a case-by-case basis”. 113
While not all arrangements will be legal, UNHCR sets out a number of
principles to guide where these arrangements may be appropriate. 114 One of
the principles is that:
There is no obligation for asylum-seekers to seek asylum at the first effective

opportunity, yet at the same time there is no unfettered right to choose one’s
country of asylum. The intentions of an asylum-seeker, however, ought to be
taken into account to the extent possible.
Another principle is that states involved in transfer arrangements should be

parties to the Refugee Convention and its 1967 Protocol, or to other refugee
and human rights treaties. But UNHCR notes that “while being party to
international and regional refugee and human rights instruments is an
important indicator as to whether the receiving State meets the criteria
outlined in this Guidance Note, review of the actual practice of the State and
its compliance with these instruments is an essential part of this
assessment.” 115
A further principle is that:
Arrangements should be aimed at enhancing burden- and responsibility-

sharing and international/regional cooperation, and not be burden shifting.
Such arrangements should ideally contribute to the enhancement of the
overall protection space in the transferring State, the receiving State and/or
the region as a whole. 116
UNHCR also recommends that such agreements should be legally binding

and allow asylum seekers to challenge their treatment under them. 117
As noted above, the UK-Rwanda MoU is not legally binding. Section 2.2
specifically provides that the arrangement is not justiciable in a court of law
and does not confer rights or obligations. 118
One of the most fundamental principles suggested by UNHCR is made up of

an accumulation of human rights and international legal standards regarding
the treatment of each asylum seeker. Based on these international standards,
UNHCR suggests that any transfer arrangement needs to guarantee that
each asylum seeker:
• will be individually assessed as to the appropriateness of the transfer,

subject to procedural safeguards, prior to transfer. Pre-transfer
113
As above, para 3
114
As above
115
As above, para 3 (iii)
116
As above, para 3 (iv)
117
As above, para 3 (v)
118
of an asylum partnership arrangement, 14 April 2022, section 2.2

assessments are particularly important for vulnerable groups, including

unaccompanied and separated children. The best interest of the child
must be a primary consideration;
• will be admitted to the proposed receiving State;
• will be protected against refoulement;
• will have access to fair and efficient procedures for the determination of
refugee status and/or other forms of international protection;
• will be treated in accordance with accepted international standards (for

example, appropriate reception arrangements; access to health,
education and basic services; safeguards against arbitrary detention;
persons with specific needs are identified and assisted); and
• if recognised as being in need of international protection, will be able to

enjoy asylum and/or access a durable solution. 119
Where these guarantees cannot be agreed to or met, UNHCR considers that a

transfer would not be appropriate.
Requirement of a connection with the receiving state

While UNHCR acknowledges in some circumstances it is possible to allow
asylum seekers to be transferred to countries they have a connection to, or
previously claimed asylum in, recently it has argued there should be more
meaningful connections between an asylum seeker and the state they are
transferred to. 120
Connections to the receiving state which may be relevant, the UNHCR

suggests, could include for example:
• family relations;
• previously acquired rights in the state, such as previous residence or

long-term visits;
• linguistic, cultural or other similar ties. 121
As mentioned above, section 16 of the Nationality and Borders Act 2022

provides for a test that an asylum seeker has a “connection” with a receiving
State. It lists five conditions where an asylum-seeker may have a connection
119
UNHCR, Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers,
May 2013, para 3 (vi)
120
See, for example, UNHCR, Legal Considerations regarding access to protection and a connection
between the refugee and the third country in the context of return or transfer to safe third countries,
April 2018
121
As above, para 6, footnote 15; see also UNHCR, Considerations on the "Safe Third Country" Concept,
July 1996; UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for
Law and Practice - Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, p
311

to a third state, including where they have previously made an asylum claim,
or where they could have been reasonably have been expected to make such
a claim. But it also provides that the Secretary of State can remove an asylum
seeker even where they have no connection to the receiving state.
UNHCR has criticised this as a departure from established international

standards:
In a significant and highly problematic departure from international practice

and UK caselaw, it is irrelevant whether the claimant would be admitted to the
safe third State in question. While a “connection” (in the limited sense of
proposed new Section 80C) between the applicant and the “safe third State” is
required for a claim to be declared inadmissible, the Secretary of State may
still remove the applicant to any other “safe” third State. The ‘connection’
requirement therefore appears to be meaningless in terms of ensuring the
reasonableness and appropriateness of actual transfers. 122
It cites in support of this position a 2010 immigration tribunal case which

stated:
… the type of case with which we are concerned here, involving intended
expulsion of a refugee, tends only to arise as a matter of international state
practice in situations where the person concerned has some connection with
the third state which is said to be safe, based on nationality, prior residence,
marriage, entitlement to residence, historical ties etc. it [sic] does not arise
simply because there is a safe third country somewhere. 123
UNHCR considers that sending asylum seekers to countries in which they have
no meaningful connection would risk undermining the aims of the 1951
Convention:
This would be fundamentally at odds with international practice, as well as

incompatible with respect for human dignity. It undermines the Refugee
Convention’s fundamental goal of achieving durable solutions for refugees in
which they can enjoy the “widest possible exercise of … fundamental rights
and freedoms”. This goal is a practical as well as a humanitarian one. If
refugees are sent to countries with which they have no connection and where it
is not reasonable for them to go, many will simply seek ways to move
onwards. 124
Non-refoulement (return to a risk of persecution)

Article 33 of the Refugee Convention provides:
No Contracting State shall expel or return (“refouler”) a refugee in any manner

whatsoever to the frontiers of territories where his life or freedom would be
122
2022, para 38
123
RR (refugee – safe third country) Syria [2010] UKUT 422 (IAC), 13 November 2010, para 11
124
2022, Annex, para 159

threatened on account of his race, religion, nationality, membership of a

particular social group or political opinion.
This long-standing principle is reiterated in several other international human

rights treaties. A similar principle has developed in the judicial case law
relating to Article 3 of the European Convention on Human Rights (the
prohibition of torture or other inhuman or degrading treatment) whereby
states are prohibited from deporting people to states where they are at risk of
being subject to violations of this human right.
The Nationality and Borders Act 2022 outlines when a country can be
considered “safe third country”:
For the purposes of this section, a State is a “safe third State” in relation to a
claimant if—
(a) the claimant’s life and liberty are not threatened in that State by reason of
their race, religion, nationality, membership of a particular social group or
political opinion,
(b) the State is one from which a person will not be sent to another State—
(i) otherwise than in accordance with the Refugee Convention, or
(ii) in contravention of their rights under Article 3 of the Human Rights

Convention (freedom from torture or inhuman or degrading treatment),
and
(c) a person may apply to be recognised as a refugee and (if so recognised)

receive protection in accordance with the Refugee Convention, in that State. 125
The UK-Rwanda MoU also provides for a specific commitment in this regard:
9.1 Rwanda will ensure that:
9.1.1 at all times it will treat each Relocated Individual, and process their claim
for asylum, in accordance with the Refugee Convention, Rwandan immigration
laws and international and Rwandan standards, including under international
and Rwandan human rights law, and including, but not limited to ensuring
their protection from inhuman and degrading treatment and refoulement;
UNHCR, however, has been critical of these criteria, suggesting that they do
not go far enough.
Under this provision, a State could be considered “safe” even if the applicant
had been, and perhaps continues to be, at real risk of being subjected to
human rights violations there that either fall short of threats to life and liberty,
or to which they were not exposed for reasons of a Refugee Convention ground.
125
Nationality, Immigration and Asylum Act 2002, s80B (inserted by Nationality and Borders Act 2022,
s16)

Nor would inhuman and degrading treatment make a State unsafe, unless it
were in the context of removal to a further country. 126
UNHCR offers its own suggestions as to what criteria should be considered

when determining whether a state is sufficiently safe for the transfer of
asylum seekers. It suggests the criteria must also be met in practice as well
as in the legal systems of those states:
In UNHCR’s view, any definition of a country’s safety should include explicit

benchmarks in line with the standards outlined in the Refugee Convention and
under international human rights law, and these must be met in both law and
practice. At a minimum, therefore, the definition of a “safe” State must include
that the following are guaranteed in law and met in practice: appropriate
reception arrangements and protection against threats to physical safety or
freedom; protection against refoulement; access to fair and efficient asylum
procedures, or to a previously afforded protective status; the legal right to
remain during the asylum procedure; an appropriate legal status if found to be
in need of international protection; and standards of treatment commensurate
with the Refugee Convention and international human rights law. This includes
recognition of the positive rights enshrined in the Refugee Convention, and not
merely protection against refoulement. Furthermore, the capacity of the third
State to provide protection in practice should be taken into consideration,
particularly if the third State is already hosting large refugee populations. 127
3.4 European Convention on Human Rights
Some people might cite protections provided by the European Convention on

Human Rights (ECHR) to challenge the Home Office’s decision that it is safe to
remove them to Rwanda. The Law Society of England and Wales has outlined
some potential examples:
(1) For instance, if someone:
• has been trafficked to the UK and the UK does not fulfil its obligations to
investigate the trafficking claim. This could mean that the government is
in breach of its obligations under Article 4 European Convention on
Human Rights (ECHR). Such claims may not even come to light if that
individual does not have access to a legal representative
• has a spouse or parent in the UK then their removal may be in breach of

their right to family or private life under Article 8 ECHR
• has a medical condition or is at risk of suicide the removal could not be in

line with the UK’s human rights obligations and so be in breach of Article 2
ECHR
126
2022, Annex, para 140 (footnotes omitted)
127
As above, para 144 (footnotes omitted)

• would be at risk of persecution or inhuman or degrading treatment within

Rwanda, such as LGBT individuals, this may further be incompatible with
an individual’s Article 3 rights under the ECHR 128
A June 2022 evidence session held by the Joint Committee on Human Rights
considered these issues in further detail.
3.5 Other substantive and procedural protections
The principle of non-refoulement, and linked human rights law standards,

sometimes require much more than simply preventing an asylum seeker from
encountering danger when removed from a country. When read in
conjunction with other human rights obligations, such as the right to an
effective remedy for potential human rights violations, established case law
has outlined that states have specific procedural obligations when
considering the removal of an asylum seeker, and that an asylum seeker must
also be able to challenge their removal.
For example, the European Court of Human Rights has set out an overview to
its established case law on immigration. It summarises that in cases where an
asylum seeker may be removed to a safe third country, the removing state is
under specific procedural duties. In particular, the Court considers the
following factors:
• The removing state should examine thoroughly whether there is a real

risk of the asylum seeker being denied access to adequate protection in
the third state from refoulement without a proper evaluation of the risks
they may face.
• Where guarantees from the third state are insufficient, the removing
state is under a duty not to remove asylum seekers to the third state.
• To determine whether the removing state has properly assessed the

asylum procedures of the third state, the removing state should take into
account the available general information about the receiving third state
and its asylum system in an adequate manner and of their own initiative.
• An applicant should be given sufficient opportunity to demonstrate that

the third state is not a ‘third safe country’ in their particular case.
• Any presumption that a particular country is “safe”, if it has been relied

upon in decisions concerning an individual asylum seeker, must be
sufficiently supported at the outset. 129
128
Law Society press release, Rwanda removals raise rule of law questions, 9 June 2022
129
European Court of Human Rights, Guide on the case-law of the European Convention on Human
Rights: Immigration, updated 31 December 2021, para 40

Where an asylum seeker has an “arguable complaint” that their removal

would expose them to treatment that could violate their right to life (Article 2)
or the prohibition of torture, inhuman or degrading treatment (Article 3), the
Court has accepted that they must have an “effective remedy” at the
domestic level. 130
This, according to the Court, requires independent and rigorous scrutiny of

any claim that there exist substantial grounds for fearing a real risk of
treatment contrary to Articles 2 or 3. Such a claim should also have an
automatic suspensive effect (ie the removal procedure should be halted until
the claim is considered).
The Court has elaborated on the requirements that states should adhere to in
these circumstances, and factors the Court refers to when considering
whether there is a violation of this standard. These include:
• that people need to have adequate information about the asylum

procedure to be followed and their entitlements in a language they
understand, and have access to a reliable communication system with
the authorities;
• the availability of interpreters;
• whether the interviews are conducted by trained staff;
• whether asylum seekers have access to legal aid;
• that asylum seekers be given the reasons for the decision. 131
130
Rights: Immigration (PDF), updated 31 August 2022, para 57; see also European Court of Human
Rights, Guide on Article 13 of the European Convention on Human Rights: Right to an effective
remedy (PDF), updated 31 August 2022, paras 121-132
131
Rights: Immigration (PDF), updated 31 August 2022, para 57

4 Legal challenges and court decisions
Nobody has been removed under the UK-Rwanda migration partnership since
the policy was announced. The first planned flight on 14 June 2022 was halted
following a European Court of Human Rights injunction, of which the
Government was critical.
On 19 December 2022, the High Court found that the Rwanda arrangements
are lawful. Appeal applications are expected. The Home Secretary welcomed
the judgment as a vindication of the policy and said the Government would
press ahead with removals “once the litigation process has come to an
end”. 132
4.1 First flight halted following legal challenges
On 10 May 2022, the Government announced that it was sending notices of

intent to the first group of people being considered for relocation to Rwanda.
It said that it anticipated legal challenges to prevent removal in some cases
and expected the first flights to Rwanda to take place “in the coming
months”. 133
A further press release published on 1 June said that the Home Office had
begun to issue formal removal directions to the first cohort of cases and that
the first flight was expected on 14 June. 134
Those notified of their liability for removal to Rwanda applied for judicial
review of the decision-making in their individual cases. Some campaigning
organisations also challenged the legality of the asylum partnership
arrangement and the policies and procedures underpinning it. 135
In the days leading up to 14 June the number of people due to fly reduced.
Many people had their removal directions cancelled, either by the Home
Office or after their individual cases had been scrutinised by the courts.
132
133
Home Office press release, First illegal migrants told of impending removal to Rwanda, 10 May 2022
134
Home Office press release, First migrants set for Rwanda to be given final notice, 1 June 2022
135
AAA & Ors v Secretary of State for the Home Department [2022] EWHC 1922 (Admin), 20 July 2022;
Public and Commercial Services Union press release, PCS brings legal challenge against plans to
send asylum seekers to Rwanda, 27 April 2022

Some of those remaining applied for injunctions to prevent removal to

Rwanda pending the outcome of the judicial review cases. The UK courts
refused these applications. 136
But on 14 June the European Court of Human Rights granted injunctions to

several of those still due to fly, under its ‘Rule 39’ interim measures
procedures. The decision in one case, NSK v United Kingdom, was confirmed
by press release on the evening of 14 June. That led to the Home Office
cancelling the flight very shortly before its departure. 137
According to the press release, the Court decided that NSK should not be
removed to Rwanda until the ongoing judicial review had been resolved:
The Court had regard to the concerns… that asylum-seekers transferred from
the United Kingdom to Rwanda will 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 whether the decision to treat Rwanda as a safe
third country was irrational or based on insufficient enquiry gave rise to
“serious triable issues”. In light of the resulting risk of treatment contrary to
the applicant’s Convention rights as well as the fact that Rwanda is outside the
Convention legal space (and is therefore not bound by the European
Convention on Human Rights) and the absence of any legally enforceable
mechanism for the applicant’s return to the United Kingdom in the event of a
successful merits challenge before the domestic courts, the Court has decided
to grant this interim measure to prevent the applicant’s removal until the
domestic courts have had the opportunity to first consider those issues. 138
The timing and outcome of the Court’s intervention was controversial.
Speaking in the House the following day, the Home Secretary criticised the
Court’s “opaque” decision-making, commenting that the Home Office had not
yet seen the written judgment. 139 The Policy Exchange think tank’s Judicial
Power Project described the decision as “a remarkable abuse of judicial
power, which discredits European human rights law”. 140
On 22 June the Government published its Bill of Rights Bill. Clause 24 of the Bill
(as introduced) provides that UK courts may not take into account interim
measures by the European Court of Human Rights. The stated intention “is to
ensure that the fact that an interim measure has been issued by the ECtHR
does not influence domestic courts when deciding whether to grant relief that
may affect the exercise of Convention rights”. 141
136
R (Public and Commercial Services Union & Ors) v Secretary of State for the Home Department
[2022] EWCA Civ 840, 13 June 2022; Supreme Court, Rwanda Permission to Appeal Application
refused, 14 June 2022
137
“Rwanda asylum flight cancelled after legal action”, BBC News [online], 15 June 2022
138
European Court of Human Rights press release, ECHR 197 (2022), 14 June 2022. On the other
injunctions issued on 14 June, see press release ECHR 199 (2022), 15 June 2022.
139
HC Deb 15 June 2022 c301
140
Richard Ekins and the Judicial Power Project, “The Strasbourg court’s disgraceful Rwanda
intervention”, Law Society Gazette [online], 15 June 2022
141
Bill 117-EN, para 203

4.2 The High Court’s decision
In September and October 2022, the High Court heard legal arguments from
11 individual claimants and four organisations: charities Asylum Aid,
Detention Action and Care4Calais, and the Public and Commercial Services
Union. It handed down a combined judgment on 19 December 2022. 142
The judges concluded that it was lawful for the Government to make
arrangements for relocating asylum seekers to Rwanda. Some of the
individual claimants did not have their cases considered properly by the
Home Office, so those removal decisions were set aside and sent back for a
fresh decision.
Reasoning
Leaving aside the arguments specific to individual cases, the High Court
considered a dozen legal issues (summarised in paragraph 39 of the
judgment). It found in favour of the Government on each issue.
The court’s key conclusions included:
• The Home Secretary had complied with her legal duty to make a
“thorough examination” of “all relevant generally available information”
before deciding that Rwanda is safe for asylum seekers to be sent to. 143
• In making that decision, the Home Secretary was entitled to rely on the
“specific and detailed” assurances about the Rwandan asylum system
given in the Memorandum of Understanding and ‘notes verbales’
(summarised in section 1.2 above). 144
• The Home Secretary was entitled to put the criteria on who may be
eligible for removal to Rwanda in policy guidance (see section 1.3 above),
rather than in the Immigration Rules. 145
• The EU Asylum Procedures Directive was repealed by the Immigration

and Social Security Co-ordination (EU Withdrawal) Act 2020, so cannot
be relied upon to resist removal to Rwanda. 146
• The Refugee Convention does not oblige the UK, as a matter of

international law, to decide all asylum claims on their merits. 147
142
AAA and others v Secretary of State for the Home Department [2022] EWHC 3230 (Admin), 19
December 2022
143
As above, para 59
144
As above, paras 62-65
145
146
147
As above, para 121

• Declaring asylum claims inadmissible and sending the person to a safe

third country is compatible with the Convention – it does not constitute a
‘penalty’ contrary to Article 31 (see section 3.2 above). 148
• Even if the Rwanda policy involved breaches of data protection rules,

that would not make it unlawful. 149
• Although the Rwanda policy primarily affects young men from certain
countries, it pursues the legitimate objective of protecting refugees from
exploitation by gangs organising small boat crossings, and therefore is
not unlawful discrimination. 150
• The Home Secretary has the legal powers needed to implement the
Rwanda policy and does not need to seek further powers from
Parliament. 151
• There is no ‘procedural unfairness’ in the Rwanda policy. In particular,

people have a fair opportunity to make representations about why their
asylum claim should not be declared inadmissible, and why they should
not be removed to Rwanda even if their claim is inadmissible. 152
• Detention Action, Care4Calais and the PCS union did not have legal
‘standing’ to bring their claim in the first place (as opposed to the people
being removed to Rwanda, who did have standing). 153 Asylum Aid’s
formal standing was not challenged, but the court criticised its
involvement as “unnecessary”. 154
Overall, the High Court concluded, the Rwanda policy was “not unlawful by
reason of any of the generic grounds of challenge or by the general claims of
procedural unfairness”. 155
However, there were legal flaws in many of the individual cases before the
court. As a result, the judges quashed the decisions relating to eight of the
claimants. The Home Office will need to issue fresh decisions if it wishes to
send those particular people to Rwanda. 156
The court emphasised that each person’s individual circumstances must be

considered before a decision is made on inadmissibility or removal to
Rwanda. 157 The Home Office has said consistently that is its approach. 158
148
As above, para 125
149
As above, para 143
150
151
As above, para 167
152
153
154
155
As above, para 437
156
As above, para 438
157
As above, para 83; summary of the decision of the Divisional Court (PDF), 19 December 2022, para 4
158
For example, PQ 45127 [on: Asylum: Rwanda], 2 September 2022

What next?
Addressing the House on 19 December, the Home Secretary said that the
judgment “thoroughly vindicates” the Rwanda policy. She added that the UK
and Rwandan Governments were resolved to “deliver the partnership at scale
as soon as possible”. 159
There are expected to be attempts to appeal against the High Court’s
conclusion that the Rwanda policy is lawful overall. 160 A hearing on
permission to appeal will take place on 16 January 2023. 161 If the High Court
itself refuses permission, litigants can approach the Court of Appeal directly.
Writing in the immediate aftermath of the judgment, barrister Colin Yeo said
“while appeals remain ongoing, the position at present is that no-one can be
removed to Rwanda”. 162
The European Court of Human Rights injunction in the NSK case prevents the
claimant’s removal “until three weeks after the delivery of the final domestic
decision in his ongoing judicial review proceedings” (emphasis added). 163
Whether or not because of the NSK injunction, the Government has suggested
that it will await the outcome of possible appeals against the High Court
judgment before organising any removals to Rwanda. Asked when the first
flights will take off, the Home Secretary said “once the litigation process has
come to an end, we will move swiftly in order to be in a position to
operationalise the policy”. 164
Similarly, the Prime Minister said on 13 December that flights to Rwanda

would begin “when legal proceedings conclude on our migration and
economic development partnership”. 165
It is also possible that there will be further litigation even if this case is
refused permission to appeal or the appeal is resolved in the Government’s
favour. Other people facing removal to Rwanda may seek judicial review of
the individual decision-making. In addition, the challenge to overall
lawfulness concerned the law in force before 28 June 2022; it has since
changed (albeit that the new law is “largely similar). 166
159
160
Public and Commercial Services Union press release, PCS reaction to High Court judgement on
Rwanda deportation policy, 19 December 2022; “Rwanda migrant plan is lawful, High Court rules”,
BBC News [online], 19 December 2022
161
Danny Shaw (@DannyShawNews). “The court will now adjourn until January 16. If those involved in
the case want to appeal they will have [to] submit their grounds for permission to appeal by Jan 4.”
(Twitter). 19 December 2022 [accessed 19 December 2022]. Available from:
https://twitter.com/DannyShawNews/status/1604789127458668544
162
Free Movement, High court rules Rwanda plan is lawful, 19 December 2022
163
European Court of Human Rights press release, ECHR 197 (2022), 14 June 2022
164
HC Deb 19 December 2022 c42
165
HC Deb 13 December 2022 c887
166
AAA and others v Secretary of State for the Home Department [2022] EWHC 3230 (Admin), 19
December 2022, footnote 1 on p5 and footnote 3 on p10

Annex: Parliamentary scrutiny and

approval
Legal status of the Memorandum of

Understanding
The MoU is a type of non-binding arrangement that is not a treaty and does
not create any legal obligations between the parties. Paragraph 1.6 states
“this Arrangement will not be binding in International law”.
The Foreign, Commonwealth and Development Office published updated

guidance on 15 March 2022 relating to the adoption and use of this type of
arrangement. 167
The guidance states that an MOU is used to record international

commitments that are not binding, and where it is considered preferable to
avoid formalities of a treaty. This may be where, for example:
• there are detailed provisions which may change frequently;
• the matters dealt with are essentially of a technical or administrative

character;
• there is a need for such documents to be classified, such as in matters of

defence or technology; or
• where a treaty requires subsidiary documents to fill in relevant details. 168
The title of such a non-binding agreement can also have different forms.
According to the guidance:
Like a treaty, an MoU can have a variety of names (e.g. arrangement) and can
also be either in the form of an exchange of notes or a single document.
However, the formalities which surround treaty-making do not apply to it and
it is not usually published. Confusingly, treaties are occasionally called
memoranda of understanding. 169
Therefore, while non-binding commitments between states are often called a

“Memorandum of Understanding”, this same title can also be used for some
167
Foreign, Commonwealth and Development Office, Treaties and MOUs: Guidance on Practice and
Procedures, 15 March 2022
168
As above, p3
169
As above

legally binding treaties. Because of this, the status of each agreement needs
to be assessed on a case-by-case basis. As noted above, the UK-Rwanda MoU
is clear in its provisions that it is not intended to be binding on the parties in
international law.
Parliamentary scrutiny of Treaties and MoUs

For treaties, Parliament does have a role in the scrutiny and approval of
certain agreements. But the constitutional position on whether the
Government should lay non-binding MoUs before Parliament for scrutiny is
less certain.
The UK Government is responsible for negotiating, signing, ratifying,

amending and withdrawing from all international treaties involving the UK,
under its prerogative powers, and it is the UK Government that is bound by
them under international law. 170
Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG) gave
Parliament a statutory role on treaties that includes a new power for the
Commons to delay ratification. 171 In general, CRAG provides the opportunity
for Parliament to object to a treaty being ratified, but it does not require
Parliament’s active consent.
Under CRAG, most treaties signed by the Government, and requiring

ratification, should be laid before Parliament. The Government must then wait
21 sitting days before it ratifies the treaty. 172 During this time, the House of
Commons has the theoretical power to delay ratification repeatedly by
adopting resolutions against ratification. 173
Only treaties and treaty amendments that require ratification (or equivalent)
are covered by the CRAG Act, 174 and so those that come into force on
signature alone are not laid before Parliament.
This largely reflects one part of the Ponsonby Rule, a constitutional

convention established in 1924. The Foreign Affairs Minister at the time, Arthur
Ponsonby, gave an undertaking to Parliament that the Government would lay
treaties before Parliament for 21 days to be subject to scrutiny. 175
Other international arrangements are not covered by CRAG, including MoUs.

But there are some suggestions that the Ponsonby Rule also included a
170
See Commons Library briefing CBP-3861, The Royal Prerogative
171
See Commons Library briefing CBP-9247, How Parliament treats treaties
172
CRAG s20
173
The full procedure is outlined in Commons Library briefing CBP-9247, How Parliament treats
treaties, p21, and CRAG s20. There are separate, enhanced mechanisms for free trade agreements
174
CRAG s25(1)
175
HC Deb 171, 1 April 1924, cc2000-2005

commitment to inform the House of Commons of all non-treaty arrangements

entered into by the Government.
For example, a House of Lords committee has highlighted the existence of a

‘third limb’ of the Ponsonby Rule in which Arthur Ponsonby went on to commit
to informing Parliament of all “agreements, commitments, and
understandings by which the nation may be bound in certain circumstances
and which may involve international obligations of a serious character,
although no signed and sealed document may exist”. 176
But despite recommendations from the Joint Committee on the Draft

Constitutional Renewal Bill (which became CRAG), this part of Ponsonby Rule
was not reproduced in CRAG and its current status is unclear. The House of
Lords European Union Committee and International Agreements Committee
have both pressed for more public information on MoUs and other non-treaty
arrangements. 177
The European Union Committee invited the Government to “enter into a

discussion about the extent to which this commitment covers politically
important Memoranda of Understanding, and about how these can be drawn
to the attention of Parliament going forward.” 178
But the Government rejected this idea in its response to the report, stating:
Memoranda of Understanding (MOUs) are used where it is appropriate to

conclude a statement of political intent or political undertaking, and where
there is no requirement for a legally binding framework. They can be useful
tools for arrangements to be established quickly or operate flexibly, for
detailed provisions which change frequently, for primarily technical or
administrative matters, or for situations where confidentiality is required, for
example, in defence matters or technology.
In general terms, MOUs are drafted in non-legally binding language to reflect

political commitments. They are not binding as a matter of international law
and are not published or laid before Parliament as a matter of Government
practice. 179
The House of Lords International Agreements Committee, in its report

Working practices: one year on, noted that the Government had so far
refused to disclose MoUs on a regular basis. 180 The Committee continued to
push for further transparency on MoUs, stating:
The issue around the disclosure of MoUs is one we have returned to because it
is important. Put frankly, the difficulty with the Government’s approach is that
176
European Union Committee, Treaty Scrutiny: Working Practices, 10 July 2020, HL Paper 97 2019-21,
paras 11-12
177
178
179
Government Response to the House of Lords International Agreements Sub-Committee Report:
Treaty Scrutiny, Working Practices, 25 September 2020
180
International Agreements Committee, Working practices: one year on, 17 September 2021, HL Paper
75 2021-22, para 76

it allows the Government to enter into secret arrangements which it does not
disclose to Parliament on the grounds that it asserts that they are not legally
binding in international law. In addition, and no less significantly, the use of
MoUs allows the Government to fill out the details of a treaty it has signed—a
practice which it acknowledges in its own Guidance on Practice and
Procedures. This appears to be akin to producing an Act of Parliament with
associated delegated legislation, but never showing Parliament the detailed
regulations made under the parent legislation. 181
The Committee ultimately proposed a new set of criteria to ensure that only
significant Memoranda of Understanding are notified and sent to Parliament
(the Committee in particular) for scrutiny “whether or not the Government
believes that they meet the definition of a treaty under the Vienna Convention
on the Law of Treaties”. 182
The Government’s response to the report suggested that the Committee was
mistaken in the existence of a ‘third limb’ of the Ponsonby Rule:
The Government notes that there has never been a convention in the UK
whereby non-legally binding arrangements are routinely submitted to
parliamentary scrutiny. This is borne out by the consistent practice of
successive Governments and is further supported by the fact that Parliament
did not consider disclosure of non-legally binding arrangements part of the
Ponsonby Rule when it was looking to put the convention on a statutory footing
in CRaG.
It is established Government practice that non-legally binding arrangements

are not routinely published. The Government has acknowledged that it may be
appropriate to draw to Parliament’s attention non-legally binding
arrangements which raise questions of public importance. Ministers consider
this on a case by case basis. 183
The Government later clarified that it does not deny that this commitment
was made in 1924, but disagreed that this amounted to a constitutional
convention:
We do not dispute that the Parliamentary Under-Secretary of State for Foreign

Affairs in 1924 made the statement referred to in your letter, but we
respectfully disagree that this statement reflects a constitutional convention or
a practice that has been followed by successive governments over the last 98
years. In light of this, the Government’s position is reasonable, pragmatic, and
we are satisfied that it respects the United Kingdom’s constitutional
settlement. 184
The Government’s position has been further confirmed in a response to a

question from Lord Anderson of Ipswich KC:
[The Government] does not hold a central record of Memoranda of

Understanding (MoUs). Lead Government departments are responsible for
181
As above, para 76
182
183
Government Response to the International Agreements Committee Working Practices Report, 8
February 2022, p8
184
Letter from Minister of State for Asia to IAC on Working Practices (PDF), 8 March 2022

maintaining up-to-date records and original documentation of MoUs they have

signed, and may, on a case-by-case bases, choose to publish MoUs on
GOV.UK. 185
Parliamentary Scrutiny of the UK-Rwanda MoU

The UK-Rwanda MoU, because it does not create any legally binding
obligations, does not fall under the Parliamentary scrutiny requirements of
CRAG. It is also unclear as to whether the Ponsonby Rule also applies to it,
but based upon the Government’s position above it is unlikely that it will be
put to Parliament for formal consideration or vote.
Asked why the Government had opted to agree a MoU and not a treaty that
would be subject to Parliamentary scrutiny, the Government responded:
the UK has entered into a memorandum of understanding with Rwanda, which

has now been published on GOV.UK, for the provision of an asylum partnership
arrangement and to address the shared challenge of illegal migration. The
duty to lay before Parliament under the Constitutional Reform and Governance
Act 2010 applies only to treaties. However, the safety, security and dignity of
and respect for those relocated is assured through the agreement and will be
subject to monitoring. We comply fully with our legal and international
obligations. 186
A follow-up letter from Baroness Williams, Home Office Minister, subsequently

explained:
an MoU has the added benefit of allowing the partnership to change and the
technical details to be adjusted quickly if needed with the agreement of both
partners. Given the innovative nature of the partnership this flexibility is an
important advantage. Of course, if any changes are made, these will be
announced and published and my Noble Lords will be able to seek points of
clarification and ask questions as they have done so this week. 187
185
Government Response sent directly to Lord Anderson and published on his Twitter Account on 3 May
2022; see also Foreign, Commonwealth and Development Office, Treaties and MOUs: Guidance on
Practice and Procedures, 15 March 2022, p4
186
HL Deb 25 April 2022 vol 821 col 15
187
Home Office, MoU between the UK and Rwanda, DEP 2022-0381, 3 May 2022

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Research Briefing

If you have any comments on our briefings please email

2 Commons Library Research Briefing, 20 December 2022

1 The agreement between the UK and Rwanda 6

1.1 Announcement and reactions 6

2 Are there comparable precedents? 23

2.1 UNHCR’s Emergency Transit Mechanism project in Rwanda 23

3 International legal issues 26

3.1 UNHCR opposition to UK’s plans 26

4 Legal challenges and court decisions 39

4.1 First flight halted following legal challenges 39

Annex: Parliamentary scrutiny and approval 44

3 Commons Library Research Briefing, 20 December 2022

The asylum partnership arrangement

In return, the UK has provided £120 million in development funding to

Relocation of ‘inadmissible’ asylum seekers

4 Commons Library Research Briefing, 20 December 2022

Precedents for ‘externalisation’ of asylum

It has also sought to counter some criticisms of the UK-Rwanda deal by

International legal issues

Refugee rights organisations object in principle to the use of ‘externalisation’

5 Commons Library Research Briefing, 20 December 2022

1 The agreement between the UK and

1.1 Announcement and reactions

On 14 April 2022, the UK and Rwanda announced a Migration and Economic

This bilateral agreement centres around an ‘asylum partnership

The UK is paying Rwanda an unspecified amount for each relocated person, to

Details of the asylum partnership arrangement were set out in a

The partnership agreement is part of a broader set of changes to the asylum

6 Commons Library Research Briefing, 20 December 2022

Some opposition parties in Rwanda have objected to the scheme. 3 The EU

The arrangement has been opposed in Parliament, including by the former

Aside from practical concerns, asylum rights advocates object in principle to

The UN Refugee Agency (UNHCR) said the UK was abdicating responsibility to

7 Commons Library Research Briefing, 20 December 2022

receive asylum seekers and protect refugees on their own territory –

While UNHCR recognizes the challenges posed by forced displacement,

In contrast, the UK and Rwandan Governments contend that the global

Ministers have accused critics of failing to offer a viable alternative. 12 One of

8 Commons Library Research Briefing, 20 December 2022

1.2 Key elements of the asylum partnership

The Memorandum of Understanding (MoU) was signed on 13 April by the then

The stated purpose of the asylum partnership is to:

Rwanda commits to processing individual cases in accordance with its

The UK’s responsibilities in the MoU

When submitting a transfer request to Rwanda, the UK commits to providing

9 Commons Library Research Briefing, 20 December 2022

The UK is not obliged to disclose information “if it would be contrary to

The UK assumes responsibility for arranging (and funding) transport to

After arrival in Rwanda: Asylum processing and

Relocated people who claim asylum in Rwanda must be processed by

• A commitment to ensure that they are treated in accordance with the

• Access to an interpreter and to procedural or legal assistance at every

• Access to an independent and impartial due process of appeal for

10 Commons Library Research Briefing, 20 December 2022

The Home Office’s assessment of Rwanda’s asylum system provides detailed

There is a two-tier appeal system. The first appeal is to a government

Details of the asylum process to be followed in Rwanda, including the