Safety of Rwanda (Asylum and Immigration) Bill

Baroness O'Loan Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, as I have listened to the debate today, I have been very much aware that noble Lords are seized of the fact that our role is to scrutinise legislation, not to rubber-stamp government proposals, as I think we are being asked to do by No. 10. This is our duty and I have no doubt that your Lordships will fulfil that duty with integrity.

Last week, we voted that the Rwanda treaty, on which the Bill relies for legitimacy, should not be implemented until the mechanisms and processes it establishes have been given effect. For the moment, they are aspirational. Anyone who has been involved in the process of establishing new systems and mechanisms knows that these things are not done properly, even in a country such as the UK, which has the advantage of a long-established judicial and criminal justice system and is familiar with accountability mechanisms. Rwanda is not that type of country.

I know that the Bill applies only to those who have come to the UK by unsafe and illegal routes, and that the destruction of the human trafficking business which facilitates access to the UK by these routes is a very necessary and desirable aim. That goes to the heart of the Bill.

Analysis and research led by the Bingham Centre for the Rule of Law finds, inter alia, that the Bill and treaty would put the UK in breach of its obligations under Article 4 of the ECHR and Article 10 of ECAT: obligations to identify and assist every potential victim of modern slavery and human trafficking, regardless of immigration status or method of entry. The Northern Ireland Human Rights Commission has said that the Bill

“will, deliberately, abdicate responsibility under the 1951 Refugee Convention, threaten the international refugee protection regime and risk the erosion of the UK’s standing and ability to collaborate in the multilateral system”.

We cannot by stating something make it a reality. If Rwanda is not safe for some people—many noble Lords have pointed out why and where it is not safe, and have pointed to the people who have been given asylum here from Rwanda—the question must arise: what does it mean to say that it is a “safe country”? As the Law Society of England and Wales said:

“Simply put, the Supreme Court found Rwanda to not be a safe country; legislating the reverse will not change the situation on the ground”.


We cannot by legislation make the statement in Clause 1(5) a reality. We have not been told what has changed since the Supreme Court judgment, apart from the making of the Rwanda treaty a few weeks ago—which, as I said, contains a range of aspirational measures that will require very significant work to become operational. As the Law Society also said, as the Bill stands, even if the court is presented with overwhelming evidence that Rwanda is not safe, it would have to ignore that evidence and treat Rwanda as a safe country.

Redress, which pursues claims on behalf of survivors of torture, makes a very important point:

“The Bill sends out a dangerous signal that the UK is willing to circumvent the rule of law, and so undermines the international rules-based order. The UK has historically led the way in establishing the rule of law and should not now contribute to the threats it faces internationally”.


But we know, because we have seen it in your Lordships’ House, that this Government are getting into the habit of disapplying their human rights obligations and undermining the rule of law. I point yet again to the legacy Act passed in Northern Ireland, which removes all rights to compensation under the civil law, to inquests and to prosecutions, except in very limited circumstances.

The Northern Ireland Human Rights Commission advises that refugees and asylum seekers are protected by Article 2 of the Windsor Framework, and that rights particular to refugees and asylum seekers are within the scope of the Good Friday agreement by virtue, in particular, of the commitment to civil rights and to incorporate the European convention into domestic law. It cites many measures which are binding on the UK and which continue to set standards for human rights protection below which the law in Northern Ireland should not fall. Yet this Bill seeks to deprive individuals of that protection. It suggests that the current relationship between the UK courts, the UK Parliament and international law is balanced—but this Bill will create an imbalance.

We have heard so many voices articulating the dangers and, indeed, perils of this Bill. Undoubtedly, we have to find ways to resolve the problem that gave rise to the Bill and to dismantle, if possible, the highly lucrative businesses profiting from the plight of those who seek a safer and better life. I do not think that many of us could live in Syria, Afghanistan or anywhere else on a salary of about £10 a month, which is the average salary there.

This Bill is not the way forward. At the very least, until Parliament can be assured that the mechanisms and institutions of the Rwanda treaty are in place and that there is consideration of each asylum seeker and any particular vulnerabilities they may have, Parliament should exercise its sovereignty and decline to pass this ill thought-out Bill.

As the noble Lord, Lord Carlile, pointed out, the Government have yet to respond to your Lordships’ decision on the Rwanda treaty, which is so fundamental to the Bill. This Bill does not stand alone. We will appear ridiculous if we pass a Bill saying that Rwanda is safe simply to overrule our independent Supreme Court, which said that it could not be considered a safe country.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid I am not familiar with that part. However, I have just read out the relevant clause in the Bill that deals with specific individual circumstances.

Any person who has been relocated to Rwanda but who subsequently receives a court or tribunal order from the UK that they must be treated as a minor, and are therefore a child who is in Rwanda without a parent or guardian, shall be provided with suitable accommodation and support that meets all the requirements for families with children set out within the treaty under paragraphs 1.1 and 1.2.2 of Part 1 of Annex A to the treaty until the child is returned to the UK.

With regard to concerns about the impacts of the policy on children treated as adults, I reassure noble Lords that there are safeguards in place to prevent that happening. The Home Office will treat an individual claiming to be a child as an adult without conducting further inquiries only if two officers—one of at least chief immigration officer grade or equivalent—have separately determined that the individual’s physical appearance and demeanour very strongly suggest that they are “significantly over 18 years” of age. If doubt remains about whether the claimant is an adult or a child, they are treated as a child for immigration purposes until a further assessment of their age by a local authority or the National Age Assessment Board. This will usually entail a careful, holistic age assessment, known as a Merton-compliant age assessment. Only once this assessment is complete could the individual then be treated as an adult if found to be so.

Many noble Lords have asked whether this Bill will comply with international law. Its provisions are consistent with our international law obligations. They retain rights challenge based on compelling evidence of serious and irreversible harm in specific individual circumstances, which will arise in narrow circumstances.

In response to the points made by the noble Lords, Lord German and Lord Howarth, I say that the Bill makes it clear that it is only for a Minister of the Crown to determine whether to comply with an interim measure of the Strasbourg court. I am grateful to my noble friend Lord Wolfson and the noble Lord, Lord Faulks, for their comments on this.

I will not get drawn into speculation about hypothetical scenarios, but the internationally binding treaty agreed between the UK and Rwanda contains binding commitments to ensure that the scheme is compliant with international law, including the ECHR. It also makes it clear that domestic courts may not have regard to the existence of any interim measures when considering any domestic application flowing from a decision to relocate a person to Rwanda in accordance with the treaty.

The Permanent Secretary for the Home Office has confirmed that if we receive a Rule 39, instead of deferring removal immediately—as the guidance currently indicates—officials will refer the Rule 39 to the Minister for an immediate decision. To answer the noble Lord, Lord Wilson, I say that the Cabinet Office has confirmed that it is the responsibility of civil servants under the Civil Service Code to deliver that decision. Consideration will be on a case-by-case basis depending on the facts. I also remind noble Lords that, as the Government have set out, both the UK and Rwanda are committed to making this partnership work.

As my noble friend Lord Murray set out, the Section 19(1)(b) statement is not specific to one provision; it applies to the Bill as a whole. A statement under Section 19(1)(b) makes it clear, in this instance, that the Home Secretary is not able to state now that the Bill’s provisions are more likely than not compatible with convention rights. There is nothing improper or unprecedented about pursuing Bills with a Section 19(1)(b) statement. It does not mean that the Bill is unlawful or that the Government will necessarily lose any legal challenges on human rights grounds. Parliament clearly intended Section 19(1)(b) to be used as it is included in the Human Rights Act 1998. It is an important measure to safeguard parliamentary sovereignty. Section 19(1)(b) statements have been used by Governments of all stripes before. For example, the Bill that became the Communications Act 2003 included a provision banning paid political advertising on TV. The use in this case recognises the novel and ambitious approach taken by this Bill, and the fact there is room for argument both ways. We are testing the limits but remain satisfied that this Bill is compatible with international law.

The Bill allows decision-makers and the courts to consider claims that Rwanda is unsafe for a person due to their particular individual circumstances, as we have discussed. As the right reverend Prelate the Bishop of London noted, the Bill does not disapply Section 4 on declaration of incompatibility, as this is the only substantive remedy against the conclusive presumption that Rwanda is safe. Retaining DOIs allows the courts to respond to changing circumstances and for this question to be brought back for parliamentary consideration. Of course, the final say on the matter will remain with Parliament and the Government because Section 4(6) of the Human Rights Act makes it clear that a declaration cannot affect the operation or validity of domestic legislation.

The effect of retaining this Section 4 is therefore beneficial in limiting domestic and international legal challenge and, crucially, does not undermine the operation of the Bill, and in doing so reaffirms parliamentary sovereignty. The court could not grant interim relief on the basis of a DOI having been granted because of the clear and unambiguous language of Section 4(6) of the Human Rights Act.

The noble Baroness, Lady O’Loan, asked about the impact of the Bill in Northern Ireland. The Bill will apply fully in Northern Ireland in the same way as it does in the rest of the United Kingdom. This is explicit in the Bill and will always be the case, reflecting that immigration policy is a UK-wide matter. Nothing in the Windsor Framework, including Article 2, or the trade continuity agreement affects this. The Bill’s provisions do not diminish the rights and commitments we have made on the convention on human rights in the Belfast agreement. The Government remain fully committed to that agreement in all its parts. The Government are unshakable in their commitment to the Belfast/Good Friday agreement, and the Bill does not undermine this.

[Baroness O'Loan (CB)]

Has the noble Lord actually read the Northern Ireland Human Rights Commission’s advice on this matter? Has he taken cognisance of the number of measures he lists which are affected, and the fact it is an obligation under Article 2 of the Windsor Framework?

[Lord Sharpe of Epsom (Con)]

As I have just set out to the noble Baroness, the Government takes a different view to those opinions.

The noble Lord, Lord Ponsonby, asked about the costs of this partnership. The spend on the MEDP with Rwanda so far is £240 million. Further funding will be provided to Rwanda once the partnership is operational. Costs and payments will depend on the number of people relocated, the timing of when this happens and the outcomes of individual cases. Spending will continue to be reported as part of annual Home Office reports and accounts in the usual way. Those focusing solely on the costs of this partnership are missing the point. It is incredibly frustrating for the British people and the taxpayer to spend billions to house illegal migrants in hotels. The daily cost of hotels for migrants is £8 million and the cost of the UK’s asylum system has roughly doubled in the last year; it now stands at nearly £4 billion. Criminal smuggling gangs are continuing to turn a profit using small boats. We must bring an end to this.

The Government recognise the extraordinary level of interest in this partnership, and we take our responsibility to be transparent seriously. However, that must be balanced with the nuances of managing our international relationships and respecting commercial sensitivities. We have said we will do what it takes to curb illegal migration and stop the boats. As we explore avenues of doing this, it would be against our direct interests to release all financial information. Costs and payments of course will depend on the number of people relocated, the timing of when this happens, and the outcomes of individual cases. Every individual’s needs are different, and funding will only be provided while an individual remains in Rwanda. Spending will be reported as part of the annual Home Office reports and accounts in the usual way.

I am getting to the end. Noble Lords have asked whether this Bill will, by disapplying international law, have a knock-on impact on wider international treaties and potentially worsen the UK’s relationship with the ECHR. We have a long and diverse history of freedoms in this country, and we are proud of the UK’s heritage and culture on human rights and democracy. But no country has all the answers to global human rights challenges. We continue to engage others about our ongoing journey on these issues—a point made by many noble Lords and emphasised by my noble friend the Foreign Secretary on 16 January.

I am again thankful for all the contributions made to today’s debate. It is absolutely essential that we tackle illegal migration, bring an end to such dangerous channel crossings and save lives. To the noble Lord, Lord Coaker, I say that the integrity of our border also matters. I therefore urge noble Lords to support the Government in delivering the partnership with Rwanda, and our wider plans to take control of our borders and stop the boats. These are difficult choices to make with regards to tackling this issue. That is what this Government are doing, and we will continue to do so. The Bill will enable us to stop the boats, and I commend it to the House. I invite noble Lords to reject the amendment standing in the name of the noble Lord, Lord German.