I sincerely hope there will be a challenge, perhaps by judicial review, to the validity in principle of this Bill, once it passes into law. The unconstitutional nature of it, as Clarke has highlighted, is as disturbing as it is absurd. It strikes me that it was also completely unnecessary, as the SC ruling generously accepted both the SoS assertion that Rwanda’s system might feasibly improve, and that Rwanda had entered its agreements with the UK in good faith. All that was required was to give time to demonstrate those improvements and safeguards were in place & to apply for a review on the basis of new facts. That HMG was unwilling & unable to do so demonstrates their desperation & a lack of belief in the veracity of their own policy.
I’m not proposing the below, but just toying with the concepts. It has probably been raised by others, but I haven’t come across it elsewhere yet:
What if cl 2 empowered the SoS to issue a certificate that would be conclusive evidence that a given nation was a safe third country according to the pre existing statutory definition, coupled with an express duty of regular review?
The decision to issue such a certificate would be amenable to JR, as would be a refusal to withdraw a certificate. I do not practise in immigration, but I imagine it would divert the systemic challenges from myriad individual claims into claims specifically about that country.
More importantly, it would not be nearly as constitutionally obnoxious.
I suppose this idea wouldn’t actually help the Rwanda policy much, though, because cl 4(1) leaves sufficient room for claims to effectively (if not formally) avoid the certificate issue.
There's a deep issue at the heart of the policy that cannot be reconciled if the courts are permitted to find that Rwanda is not a safe destination for any subset of asylum seekers: the policy's objective is to reduce the number of asylum seekers that come to the UK by making them afraid that they will be sent to Rwanda instead of being allowed to stay in the UK.
But this fear relies on asylum seekers fearing for their own safety if sent to Rwanda; if asylum seekers believe that Rwanda is safe, then their best option is to start in the UK, and rely on the UK paying to send you to Rwanda if it deems you inadequate to stay in the UK, thus making the UK more attractive to asylum seekers, in direct opposition to the policy goals.
Worse, from a government point of view, if we work with the Rwandans to make Rwanda a genuinely safe place for asylum seekers, that damages the policy - if Rwanda is genuinely safe as a matter of fact, and then the UK court system declares that we've assessed it, and this is why it's safe, the sort of person who's inclined to come here anyway will listen, and will take our claim as evidence that Rwanda is safe; the only way to overcome this is for asylum seekers to have evidence that Rwanda is not safe, which is evidence that a UK court will consider when making its declaration, and thus makes it improbable that the UK courts will declare Rwanda to be safe.
So, it's caught in a trap; if Rwanda is demonstrably safe as a matter of fact (and therefore a court would find it safe), the policy does not work as a deterrent. But if Rwanda is unsafe, a court will not find it safe, and will refuse to send asylum seekers there, which means that the policy does not work as a deterrent.
The only way that the policy could possibly work if Rwanda is safe is if a significant number of "asylum seekers" are in fact economic migrants who would be happy to be "refouled" if denied right to remain in the UK; but if this is the case, working with Rwanda to make it safe for any asylum seeker who came to the UK would be the obvious fix, and thus I conclude that the government is aware that (as the figures it publishes suggest) most asylum seekers are genuine, so the policy will not work to reduce asylum seeker numbers unless Rwanda is unsafe.
Question : would the bill also apply in the case of a Rwandan citizen seeking asylum in the UK? Would he/she be prevented from submitting any evidence in support of their claim? Would the UK have committed itself to rejecting all claims from Rwanda out of hand ?
This is a very interesting question, given the UK has recently accepted asylum claims from Rwandans and is still reviewing others, and of course has committed to Rwanda to reciprocate in receiving asylum seekers from them, who would otherwise be vulnerable in Rwanda — begging the question as to how anyone could be vulnerable in a country “safe” for refugees?
I sincerely hope there will be a challenge, perhaps by judicial review, to the validity in principle of this Bill, once it passes into law. The unconstitutional nature of it, as Clarke has highlighted, is as disturbing as it is absurd. It strikes me that it was also completely unnecessary, as the SC ruling generously accepted both the SoS assertion that Rwanda’s system might feasibly improve, and that Rwanda had entered its agreements with the UK in good faith. All that was required was to give time to demonstrate those improvements and safeguards were in place & to apply for a review on the basis of new facts. That HMG was unwilling & unable to do so demonstrates their desperation & a lack of belief in the veracity of their own policy.
Very good points, well made.
I’m not proposing the below, but just toying with the concepts. It has probably been raised by others, but I haven’t come across it elsewhere yet:
What if cl 2 empowered the SoS to issue a certificate that would be conclusive evidence that a given nation was a safe third country according to the pre existing statutory definition, coupled with an express duty of regular review?
The decision to issue such a certificate would be amenable to JR, as would be a refusal to withdraw a certificate. I do not practise in immigration, but I imagine it would divert the systemic challenges from myriad individual claims into claims specifically about that country.
More importantly, it would not be nearly as constitutionally obnoxious.
I suppose this idea wouldn’t actually help the Rwanda policy much, though, because cl 4(1) leaves sufficient room for claims to effectively (if not formally) avoid the certificate issue.
There's a deep issue at the heart of the policy that cannot be reconciled if the courts are permitted to find that Rwanda is not a safe destination for any subset of asylum seekers: the policy's objective is to reduce the number of asylum seekers that come to the UK by making them afraid that they will be sent to Rwanda instead of being allowed to stay in the UK.
But this fear relies on asylum seekers fearing for their own safety if sent to Rwanda; if asylum seekers believe that Rwanda is safe, then their best option is to start in the UK, and rely on the UK paying to send you to Rwanda if it deems you inadequate to stay in the UK, thus making the UK more attractive to asylum seekers, in direct opposition to the policy goals.
Worse, from a government point of view, if we work with the Rwandans to make Rwanda a genuinely safe place for asylum seekers, that damages the policy - if Rwanda is genuinely safe as a matter of fact, and then the UK court system declares that we've assessed it, and this is why it's safe, the sort of person who's inclined to come here anyway will listen, and will take our claim as evidence that Rwanda is safe; the only way to overcome this is for asylum seekers to have evidence that Rwanda is not safe, which is evidence that a UK court will consider when making its declaration, and thus makes it improbable that the UK courts will declare Rwanda to be safe.
So, it's caught in a trap; if Rwanda is demonstrably safe as a matter of fact (and therefore a court would find it safe), the policy does not work as a deterrent. But if Rwanda is unsafe, a court will not find it safe, and will refuse to send asylum seekers there, which means that the policy does not work as a deterrent.
The only way that the policy could possibly work if Rwanda is safe is if a significant number of "asylum seekers" are in fact economic migrants who would be happy to be "refouled" if denied right to remain in the UK; but if this is the case, working with Rwanda to make it safe for any asylum seeker who came to the UK would be the obvious fix, and thus I conclude that the government is aware that (as the figures it publishes suggest) most asylum seekers are genuine, so the policy will not work to reduce asylum seeker numbers unless Rwanda is unsafe.
And thus the trap closes in.
Always appreciate your exposition of the issue. Thank you.
Question : would the bill also apply in the case of a Rwandan citizen seeking asylum in the UK? Would he/she be prevented from submitting any evidence in support of their claim? Would the UK have committed itself to rejecting all claims from Rwanda out of hand ?
This is a very interesting question, given the UK has recently accepted asylum claims from Rwandans and is still reviewing others, and of course has committed to Rwanda to reciprocate in receiving asylum seekers from them, who would otherwise be vulnerable in Rwanda — begging the question as to how anyone could be vulnerable in a country “safe” for refugees?
mr Lovell its Nik I read the article