Safety of Rwanda (Asylum and Immigration) Bill

Diana Johnson Excerpts

Committee of the whole House
Tuesday 16th January 2024 Commons Chamber

I strongly urge the Government to note the sheer anger and frustration demonstrated in opinion polls and public concern that we get this Bill right and make it work. If not, this anger will continue up to and including the general election. Would it not be wise for the Government to reflect on the position and see that it would be better and wiser to come forward with their own amendments and use our majority, in line with our manifesto, as granted to us by the general election in 2019? That would be in the national interest and for the sake of all Conservative Members of Parliament whose seats would be so at risk if we did not do that.

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

I start by raising my concerns with the Government about using a Committee of the whole House for this part of the scrutiny of the Bill. We had this with the Illegal Migration Act 2023. In that case, there were hundreds of amendments and the Minister just got to speak at the end for a short time. When we are debating and scrutinising such Bills, we need to do so line by line, and we need to debate and hear the argument from the Minister and the argument from the proposers of amendments. The process we are going through does not allow Parliament to conduct that effective scrutiny that we all want to see when passing laws in this place.

Turning to the Bill, when the Home Affairs Committee published our report on channel crossings 18 months ago, we were clear about the potential problems posed by the Rwanda scheme. As I have highlighted on several occasions in this Chamber, we said that the small boat crossings are an issue on which “no magical single solution” is possible and that:

“Detailed, evidence-driven, fully costed and fully tested policy initiatives are by far most likely to achieve sustainable incremental change”.

We warned that the Government risked

“undermining its own ambitions and the UK’s international standing if it cannot demonstrate”

that the scheme was

“compatible with international law and conventions.”

We said that aspects of the scheme carried

“significant reputational risk for the UK”.

The amendments we are debating today contain provisions that are incompatible not only with the UK’s obligations under international law, but with basic principles of liberty and freedom under common law. The amendments’ implications are therefore profound and affect every single one of us. Despite what the former Immigration Minister, the right hon. Member for Newark (Robert Jenrick) said, I take in all sincerity the Rwandan Government’s view on the importance of upholding legal obligations. We can conclude that some of the amendments would prove fatal to the implementation of the Bill. Indeed, yesterday, the UN Refugee Agency declared that the Rwanda treaty and this unamended Bill are

“not compatible with international refugee law.”

I will speak to amendments 2, 3, 10, 56 and 57 and then focus my comments on amendments 19 to 22. Amendments 2 and 3 would prevent any claim based on risk derived from individual circumstances being considered until the person in question had arrived in Rwanda. That would effectively exclude the very narrow possibility for suspensive claims that the Bill currently allows, and it could result in the person being exposed to the risk on which their claim is based—including claims based on fear of persecution and torture—before it is even considered. The European convention on human rights requires

“independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3”.

It also requires that the person concerned should have access to a remedy with automatic suspensive effect. The amendments would therefore be inconsistent with that requirement of the ECHR.

Amendment 10 would extend the notwithstanding provision to apply to all the Bill and the Illegal Migration Act 2023. It would effectively prevent a claimant relying on any pre-existing legal protection to prevent or delay their removal to Rwanda. The amendment would expressly allow removal to Rwanda, despite that removal otherwise breaching domestic law and despite that removal being in breach of international law. That includes fundamental human rights from which we know no exception or derogations are permitted, such as the prohibition on torture. Needless to say, the amendment is not compatible with the UK’s obligations under international law and risks undermining our international standing.

Amendments 56 and 57 would provide that courts and tribunals would not be permitted to consider a claim on the grounds that Rwanda is not a safe country where the claimant has engaged in activity or made serious allegations that have brought into question the safety of Rwanda, or colluded or conspired with others who have done the same. Worryingly, the amendment appears to exclude people who have made serious allegations about the safety of Rwanda from asylum and human rights protection. That would be inconsistent with rights to asylum and humanitarian protection under international law and could also be inconsistent with freedom of expression as guaranteed under article 10 of the ECHR.

Amendments 19 to 22 have profound implications for us all. They would prevent any individual set to be removed to Rwanda from arguing that they could not be sent there on the basis of their own circumstances. In the inevitable absence of absolute certainty that no risk to any individual could arise in Rwanda, that would mean that legitimate claims based on a real risk of persecution and human rights violations would not be heard, and that those people whose claims are unheard would be removed to face the persecution and human rights violations in Rwanda on which their claims are based. That is clearly inconsistent with the refugee convention, the ECHR and the other international legal obligations cited by the Supreme Court in its recent judgment.

Amendment 22 would prevent the courts from reviewing not only the asylum claims of individuals being sent to Rwanda, but also claims for unlawful detention, for assault in the course of removal or for discriminatory treatment in the course of the removal process. To be clear, denying those claims would be inconsistent not only with human rights law, but with fundamental principles of liberty and freedom under our common law that have been protected for centuries, including by the writ of habeas corpus. All Members who do not want to see habeas corpus sacrificed today can surely not support these amendments.

Finally, I add my support to amendments that would make sensible and logical revisions. Amendment 1 would require the Secretary of State to monitor whether Rwanda remains a safe country. New clause 6 places conditions

“on when the classification of Rwanda as ‘safe’ can be suspended in accordance with material conditions and/or non-compliance with obligations”.

[Sir John Hayes]

The right hon. Lady will know that under this Government and previous Governments of all political colours, many people who came here illegally have been deported from this country. When that happens, it invariably does so notwithstanding claims they make about their circumstances. Sometimes, those are claims about their personal circumstances; sometimes, those are claims about the place they are being deported to and from where they come. On the basis of her speech so far, she would deport no one.

[Dame Diana Johnson]

I do not know whether I am grateful to the right hon. Gentleman for that intervention, because that is clearly not what I am saying. What I am talking about—the Home Affairs Committee is clear about this—is the rule of law, recognising the international obligations that this country has freely entered into, and doing things properly and legally. That is what I am questioning, because some proposals tabled by Conservative Members go to the heart of our common law, our belief in the right to go before a judge and our belief that if one is detained, it cannot be indefinite. Those are important matters that are before us today.

I want to get a couple of other things on to the record. Going back to amendment 1 and new clause 6, while the Government have determined in the Bill that it is possible to stipulate in law that Rwanda is safe—as we know, that is to the contrary of a finding of fact by the Supreme Court—it does not seem sensible for the Government to propose that that status should be fixed forevermore, which would, by extension, make Rwanda the only country on Earth in which nothing can ever happen or change. As such, amendment 1 and new clause 6 have merit; I hope the Minister will consider them.

Amendments 35 and 37 would allow the courts to consider the risk of refoulement in decisions on removals to Rwanda. Given that the Supreme Court ruled unanimously that the Rwanda policy was unlawful precisely because there were substantial grounds to believe that refoulement could take place, those amendments also have merit.

I understand from media reports that when the Minister gets to his feet, he will give some undertakings about increasing the number of lower level judges—or, I should say, moving lower level judges up to the upper tribunal—to hear any appeals. That is apparently to deal with some of the concerns of Government Members. The Home Affairs Committee is concerned generally about the lengthy delays in court cases. In particular, in one of our recent reports on the investigation and prosecution of sexual offences, particularly rape, we were worried about how long it was taking for those cases to be heard.

I am concerned about the Government’s initiative—perhaps I am prejudging what the Minister will say, but it is being reported in the press—given the amount of resource and finance that will have to be put into training up 150 judges. It strikes me that they seem to be using an enormous amount of political time and resource on this policy. I look forward to what the Minister has to say about increasing the number of judges when we have so many other problems in other parts of the court system that they have not so far been able to deal with. That concludes my remarks on today’s amendments.

[Sir Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), the Chair of the Home Affairs Committee. I rise to speak to amendments 28, 29 and 30 tabled in my name. Although they would amend clause 9, they relate to the operation of clause 2; hence their selection for debate today.

It is important that we focus on what clause 2 actually means, what its effect is and what the changed reality is with regard to the position in Rwanda—and, indeed, the position between the United Kingdom and Rwanda—since the decision of the Supreme Court in November and since the facts on which it based its decision, which relate to the spring and early summer of 2022. There is no doubt that matters have moved on significantly. We have not only a treaty between the United Kingdom and Rwanda, which was signed late last year, but an indication in the form of a policy document published by the Government, and indeed further information, as to the hard and fast changes that the Rwandan Government will be making to, in effect, answer the questions asked of it by the Supreme Court decision.

The Supreme Court decision really was not about the law; it was about the evidence. When we look at what the Supreme Court justices decided, we see that it was very much narrowed down to whether refoulement was still likely, bearing in mind the position of Rwanda. The Court decided that it was, and that is the sole reason why the policy was held to be unlawful. Other grounds were tendered in that case, including one on retained EU law. A specific ruling of the Court was that that did not apply; the law was clear that that part of retained EU law had fallen with our departure from the EU. Other aspects of the appeal were not ruled on by the Court. The decision was not, for example, based on compatibility with the ECHR. Importantly, the decision was not based on a challenge, which was upheld, to the legality of the removal of people to third countries.

In my view, it is neither illegal nor immoral to seek third-country assistance when it comes to this unprecedented challenge. Indeed, other European countries either are doing it or wish to do it. My right hon. Friend the Member for Newark (Robert Jenrick) was right to say that other countries are looking to what happens here and to the precedent that we might set.

In setting precedents, we have to tread carefully. That is why the amendments that I tabled are very much focused on the factual reality and the need to ensure that Rwanda does indeed carry out its policies. When we look carefully at the policy statement, we see that particular tasks will need to be completed, including new operational training for decision makers in Rwanda—I think the latest figures show that over 100 people have now been trained to implement the deal—and the need for clear standard operating procedures with regard to the reception and accommodation arrangements for asylum seekers, the safeguarding of their welfare and access to healthcare.

Of course, there needs to be strengthened procedural oversight of the migration and economic development partnership agreed in 2022 and the asylum processes under it. That means that bodies have to be set up—the new MEDP co-ordination unit and the MEDP monitoring committee of experts. The involvement of experts is needed, certainly in the early days of the decision making to be made by the new body, which will be set up by the Government of Rwanda. There will be a new appeal body that consists of panels of three judges, with subject-matter experts, including Rwandan judges and judges from other Commonwealth jurisdictions. All those details are important, because they go towards answering the question, which I think will be answered in the affirmative: that individuals in the scheme will not be at risk of refoulement and, therefore, there will not be a breach of the 1951 convention.

That reality has to match the deeming provision. I know that my hon. and learned Friend the Minister will be anxious to ensure that deeming provisions do not either perpetuate or encourage legal fictions. This is difficult law, but it is not unprecedented. Deeming provisions are used often in tax legislation. The leading authority is fairly recent: Fowler v. Her Majesty’s Revenue and Customs back in 2020 in the Supreme Court, in which Lord Briggs made it clear that deeming provisions creating statutory fictions should be followed as far as required for the purposes for which the deeming provision was created, but the production of unjust, absurd or anomalous results will not be encouraged. That is clearly somewhere that the courts do not wish to tread or to encourage, and neither should we as a Government or a Parliament.

We must dovetail the coming into force of the deeming provisions with the reality on the ground in Rwanda, so that we create not a statutory fiction but a series of facts reinforced by statute. That degree of care does not have to take ages—it can be done in weeks, bearing in mind the quick work that has been done already. That would go a long way to satisfying the natural concerns that many of us have about the use of such provisions. We understand why they have to be made, and we do not oppose the principle of their use, but I simply caution that we take care to make sure that we get that co-ordination right.

Many of us have been down the road of discussing ouster before, and it can take many forms. There have been examples where ouster proceedings and clauses have clearly not worked, and they are not the sole province of this Government. Previous Labour Governments tried to enact bold and sweeping ouster clauses, only to find that their efforts fell flat either before the Act became law or as a result of court intervention. I think of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when Labour tried to be too extensive and expansive.

Experience has taught us that where we have clearly defined reasons—and, importantly, limited exceptions—ouster clauses will work. We had a recent example of that in the removal of the Cart jurisdiction in the Judicial Review and Courts Act 2022, where my hon. and learned Friend the Minister finished the job that I started. In the consultation on the judicial review, my noble friend Lord Faulks and others embarked upon those provisions at my direction. That worked—it has been tested not just in the High Court but in the Court of Appeal in the Oceana case, and it is held to be sound and watertight. Why? Because there was a clear rationale behind it, and there were limited exceptions. Herein lies the danger posed by the otherwise well-intentioned amendments by my right hon. and hon. Friends: without those limited exceptions, we are setting the Bill up to fail. That is what history has taught us.

I am a strong believer that it is from this place that the core of our constitution comes. It is from Parliament that our constitutional authority is derived. To contradict the hon. Member for Aberavon (Stephen Kinnock), who in many respects couched his remarks well, we do not have a separation of powers constitution. We have a checks and balances constitution, where each part of the body politic respects each other. I do agree with him that restraint is an important principle.